Your thoughts!

Archive of Older Topics Archive - Specifications Discussions #2
1

A big-hitter client requires use of their General Conditions. The document is about 24 pages long-- typewritten. From just a cursory [not in-depth, legal] review it is obvious that this document does not have the same coverage as AIA, A-201.

Would you include A-201"

If so, how?

Would you set up a pecking order, having 201 only become effective where the owner GCs ae “quiet”?

Any other methods for using 201, in lieu of trying to get the client to accept them or doing without?

Doing without is so risky it is imagineable-- correct?

2

It is the owner’s contract, not yours, so the owner would have to approve such a situation. But I would advise against using both.

I would make recommendations to the owner to either use AIA 201 with appropriate supplemental conditions, or make revisions that you think, based on experience, would improve their standard GCs.

3

A-201 is not perfect, but is usually better than most other contract documents out there, especially when it comes to clear understanding of signatories responsibilities and rights. I’d probably try to point out those discrepancies to the Owner and Owner’s lawyer, noting that you will have some rewrite of your documents to align them with Owner’s GCs if they continue to use them (and additional fees to do so). A-201 does have a proven court track record, too, which Owner’s GCs may not have, yet another item to be noted to Owner.
Without a legal opinion, I wouldn’t try to blend the 2 documents.
You could, as Ron suggests, write supplemental conditions to Owner’s GCs, using the missing items from A-201 as a guideline. That would definitely require Owner’s lawyer review and input. And, of course, additional fees for your work.

4

As Lynn suggests, you gotta be careful how you approach this, or you could risk an accusation of practicing law while unlicensed (unless, of course, you are…). There shouldn’t be anything wrong with a general recommendation to use A201 as a basis – especially along with a recommendation that the Owner’s attorney be involved. Could “making recommendations” on “appropriate supplemental conditions” be construed as offering legal counsel? Would offering examples of alternative provisions that have been used by others in similar situations, for consideration by the client and/or client’s attorney, be simply sharing information, and therefore OK?

It might be helpful to find out the provenance of this document. Was it a non-specialist staff attorney’s attempt to re-invent the wheel? Does staff counsel have a vested interest in this document?

5

I would strongly support Ronald’s advice not to mix contracting requirement documents - only asking for trouble.

A couple of years ago I was retained by one department within a “major hitter public agency” to revise the “front end” documents of the agency to bring them more in line with “common industry practice” for a very major project - working for one department in conflict with the “contracts group” - lots of fun. Their documents dated back to the 1970s and no one had one set of the latest current documents located in one place. I ended up taking their documents and reorganizing them by using CSI principles and AIA documents to reorganize the material keeping what was necessary by law and regulation but at the same time adding material from AIA documents that was missing. For the most part they accepted this work - of course there were politics and a power struggle going on between the departments. The major project was bid successfully with these documents. One of the best sideways complements I have ever received was from the contracting officer at the groundbreaking ceremony who had to operate under these conditions - “This didn’t turn out so bad after all.”

The point I was trying to make is that if you think it is important enough, you might point out some of the missing information and why you think that might be a problem. You might get some additional services to help them upgrade their documents. Just make sure their legal counsel is reviewing and that you are not taking on the role of providing legal advice.

6

Anon,

Ron has the right answer here - its the Owner’s contract, not yours. Many owner’s have their own general conditions, some use AIA A201 and have significant supplements to it.

If the Owner wants to use his own, you can suggest otherwise, but it is his call, not yours.

On the other hand, it is suggested that these be listed in the table of contents as “by owner”, not copied and bound into the project manual. The owner distributes them. Sometimes when they don’t want to distribute them we will do so, but create a separarte bind of just them with cover listed as “Owner’s General Conditions”.

Why not bind them in? Because doing so implies that you also understand and agree to them. You may not. To technically determine if what your office’s agreement or disagreement with these documents are would require you to seek a legal interpretation between them and your what your office uses routinely as general and supplementary conditions.

And - our experience is that the owner typically does not modify their general conditions as relates to the responsibilities of the Architect and what the Owner/Architect agreement states. Thus his general conditions could be out of synch with what you have contracted with the Owner to do.

So, the advice is, if the Owner wants to use his own General Conditions, that his decision, not yours. However, if he wants to use them, then the Owner distributes them, or at the most, you separately bind and act only as a distrubution service for him.

Willaim

7

Big-hitter Owner’s written General Conditions are most likely heavily biased in their favor and not in favor of the GC.

Coordinating your Division 01 sections with this Owner’s (new or existing?) General Conditions can be a daunting task, especially if your current Division 01 is well coordinated with AIA A-201. I have done this in the past and, not being a lawyer, is an onerous task.

Check out Herman Hoyer’s newsletter in the Newsletter section of 4specs.com for some useful insights and opinions on coordinating Division 01 with General Conditons

The AIA conditions of the contract are recognized throughtout the USA construction industry for their quality and consistency (warts and all). They were prepared as a concenesus of construction industry leaders, resulting from many years of review, application, and testing both in practice and in the courts. Each iteration is developed to reflect contemporary practices.

Consultants should not exceed their proper role with regard to the Contract between the Owner and the Contractor and its associated General and Supplementary Conditions. Consultants may assist the Owner and the Owner’s legal councel in establishing the terms of the Owner-Contractor documents but should not take responsibility for the legal content and sufficiency of these deocuments. Nor should the Consultant offer advice on insurance matters unless properly qualified to do so.

Big-hitter client is your client and the client is always right?

All that said, you should advise Big-hitter client of the risks involved and let them make their own choice. Some potential bidders may not want to bid the Big-hitter’s project. Alternativley, GCs may have seen it all before and know all of it’s risks and the potential cash-flow to the GC.

That is all I have to say about that. (Forest Gump)

8

Very interesting topic!

Mr. Peuges, and Others-- if your contract and the Owner’s GCs are out of synch, isn’t your liability situation in peril?

How do you utilize, defend, or otherwise address issues covered in the 201, that involve your actions, when 201 is not available, and the Owner’s docuemnts don’t address the partisular issues?

9

Ralph,

Question: Mr. Peuges, and Others-- if your contract and the Owner’s GCs are out of synch, isn’t your liability situation in peril?

Answer: Not at all. Its not our document unless the owner wants to remiburse us for the legal review of the document itself. Our liability is limited to our contract with the owner, not some other document that he has issued to the Contractor that assignes incorrect responsibilities. Our division 1 is written around what is covered in our owne/architect agreement. If we go through and notice incosistencies, we will tell him about it. We won’t do an indepth review, we are not lawyers. We won’t change our division 1 to differe from the owner/architect agreement.

Question: How do you utilize, defend, or otherwise address issues covered in the 201, that involve your actions, when 201 is not available, and the Owner’s docuemnts don’t address the partisular issues?

Answer: This is an irrelevant issue. What is in 201 vs what is in an owner’s custom general conditions is totally irrelevant. 201 does not exist in any way literal or implied when the owner has his own general conditions. Our division 1, as far as our actions go, are based on our owner/architect agreement. So, many of our actions may be covered in Division 1. However, if the owner has left out some important criteria, and we are unaware of it, the ultimate problem and its resolution lies with the Owner.

Both are very specific reasons why you don’t issue the owner’s general conditions in the project manual.

Related history. Some time ago we had a project wherewe issued A201 and a set of supplementary conditions based on owner’s special requirements and our modifications to the A201. No problem. However, before the owner issued anything to the contractor, he had had a legal consultant recommend to them to issue their own general conditions - which he did. We never saw it.

Time passed. Then at a point of contention about various tests being performed that we had not required and meetings we were not attending (not in our contract with the owner) the contractor pointed out the required attendance of the Architect, that the Architect was supposed to be doing minutes to these meetings and documenting the testes. We said there was no such thing, and the contractor then provided a point by point documentation of where we were supposed to be doing this stuff based on the custom general conditions. We had never even seen the document until that point.

After some considerable haggling between all parties, it went to arbitration. We were not even involved, they did not even want to hear from us other than to have a copy of the owner architect agreement and a statement that at no time had we ever issued the general conditions the owner had issued separately.

William

10

I am a little confused.

A201 is “General Conditions of the Contract for Construction”. So it appears they should be part of the O-C contract.

If they are not used, having them in the O-A contract only addresses O-A items and not a projectwide scenario. What then happens if the Owner’s GCs require something of the A which is not in or contrary to the 201?

Not saying the Owner MUST use 201, but appears there should be some way to utilize 201 where the Owner’s GCs do not address a situation which could effect the A [without 201 the A is without authorization or substantiation-- i.e., rather defenseless!]

Can’t this be done while still give full, proper and foremost authority to the Owner’s GCs? [i.e., if the 2 conflict Owner prevails; but 201 “kicks in” where Owner is silent].

11

Anon,

You have a bit of confusion as you state.

There are 3 distinct documents.

Owner/Architect Agreement - The contract between the Owner and the Architect.

Owner/Contractor Agreement - the contract between the Owner and the Contractor.

In the above 2, those parties listed are the only parties in those contracts (typically).

General Conditions for the Contract for Construction - these address and define the roles of parties involved in the construction of the project - they are not a contract. They are in the Project Manual for the project, nowhere else.

You have only 1 document for general conditions. A201 is a standad form, you can mofidy it with supplementary general conditions. If the Owner has his own general conditions, you simply don’t have A201, you have his document. If you feel that it is not providing enough or has gaps in its control, then you can suggest that the Owner modify it or create supplementary general conditions. You can point him to A201 to review for differences.

And since it is the Owner’s document, you should not, unless you engage your legal advisor, actually do those supplementary general conditions, and you should not publish the Owner’s general conditions in your project manual. You can print it for him in a separate binding, but it is generally consider inadvisable to bind it into your project manual as that can be interpreted to assume that you have accepted it and agree to abide by it.

You should indicate to the owner where you observe your division 1 disagrees with his general conditions. You should indicate where you observe your contractural obligations under the Owner/Architect agreement are in conflict or differe. I say observe, because you should not imply that you have performed a review as that may imply a complete legal review.

What to do for conflicts? Where it is conflicting with the Owner/Architect agreement, the Owner needs to change his General Conditions, or he needs to renegotiate those differences with you to change your responsibilities. Where it is conflicting with Division 1, they you advise him as to how it is going to impact the flow of the project.

Sometimes I have seen general conditions that try to put everything in Division 1 into the general conditions. That is not advisable, typically the topics are more logically broken out in division 1, easier to find and undestand. I have also seen general conditions where they have major gaps because they are assuming some things are covered in division 1. But in all of these instances, your only recourse is to advise the Owner that his general conditions should be revised and point him towards A201.

If he does not want to use A201, there is nothing you can do about it. Its his call, not yours. You may want to go on record though with a letter to him how this may cause problems with the project, but that’s about all you can do. You can’t publish A201 in conflict with his - you can’t have dueling documents. That would be worse than anything, and likely the first the the GC would do would be to ask the Owner (not you) which general conditions goverened the work. We know what the Owner will say since he has published his own.

William

12

I am not a lawyer and I don’t practice law, but I know the reason for document series like the AIA or EJCDC is to avoid the kind of disconnects noted above. Each party is responsible for (and only responsible for) the scope / responsibilities enumerated in the contracts it signs. The Owner has a problem if they sign a contract requiring the architect to do x, and then sign a contract with the contractor stating that the architect will do y. The contractor and the architect also have contracts that need to align with the agreements they sign with the Owner. If they don’t align them, then they are at risk for whatever the differences may be.

If you add another uncoordinated contract ammendment on top of the first, it won’t really help - since the only parts of the A201 that you want to “kick in” are those that are unadressed by the base contract - and then only where it doesn’t create a new conflict.

The other way to look at it is from the perspective of a potential subcontractor - once they have negotiated a price and looked at most of the documents, they will get a package from the GC with a contract between GC and sub, and containing a bunch of attachments - in addition to the attachment that covers coordination issues that won’t be in the spec (daily cleanup requirements, tool storage, insurance, site safety, work rules, etc.) there will be this huge package with the owner / gc agreement and all these ammendments. At some point this becomes a crap shoot for the subs. They may know what the work will cost them, but they can’t readily know what their overhead will be - not a condition that encourages anyone with a sharp pencil.

13

I very much appreciate William’s comments and clarifications. The offices I have work in often are involved in projects where either the terms and conditions for the construction contract (between Owner and Contractor) are not coordinated with the design contract (between Owner and Architect). It is my experience that staff with less than a few years of experience (and a few with quite a bit of experience) have trouble understanding that there are 2 contracts (design and construction) and may be confused about their scopes. I have worked on a number of projects where the scope of the design contract (the Work being deisgned) is not the same as the construction contract (the Work being built), but this is a different issue.

The AIA contract forms for design services indicate that the Architect will prepare Drawings and Specifications and may assist the Owner in preparing the Bidding and Contracting forms and documents. As an aside, I am sure that everyone is aware that issues dealing with insurance, bonds, and liquidated damages are “terms and conditions” not Specification issues. I am not sure what is worse; the Owner asking the Architect to prepare these documents without providing any information or the Owner preparing them without the Architect’s input or advice from a knowledgable attorney.

Where I don’t have sufficient information, I have included a paragraph in my Project Manaul stating that the Project Manual was prepared under the assumption that AIA A 201 was being used with modification and supplements as negotiated between the Owner and the Contractor and that these documents were available from the Owner. I also specifically mention that these documents may address construction bonds, insurance, and liquidated damages, if any. It does acknowledge that the Architect may not be completely in the loop on these matters, but also puts the conditions assumed in the preparation of the Specifications.

One of the advantages of public work is that you usually get the bidding and contracting stuff up front; it may be poorly written and organized, but you do get a chance to modify the Specifications to fit these documents.

14

Although I appreciate William’s support on my position that this is the owner’s contract, I have to disagree about his position on the exclusion of the GCs from the project manual.

The PRM/MOP states “The general conditions should always be bound into the project manual, not simply included by reference, so that they are easily available during progress of the work.” (PRM/MOP 5.4.1, last paragraph)

This is very simple and straightforward, and it makes the GCs even more available to the subcontractors. Without including them in the project manual, they may never see them.

Also, I understand William’s past experience with GCs described in his example. His company’s apparent “noninvolvement” during issue of the GCs obviously helped him in that situation, but I think that that particular case is more of an exception rather than the norm.

Division 1 needs to be coordinated with the GCs. As an example, how do you make sure if contract modification procedures in Section 01 26 00 are in line with the owner’s GCs if you hadn’t looked at them? How about payment procedures? …Project closeout procedures?

This is more the norm, and a breakdown in coordination here could mean significant problems during construction.

If you’re concerned about getting too involved in the development of the GCs and/or SCs, then don’t. Just limit your involvement to the coordination of documents and keep any commentary about the adequacy (or inadequacy) of the conditions to yourself.

15

Ron,

Perhaps this is something that has to do with whether one is an internal specifier or an independent. As an internal specifier to an architectural firm, I have our liablity to protect. I agree, the GC’s should be bound into the project manual (we even buy originals of AIA A201, never copies) when it and our supplementary conditions are used. They are bound into every copy of the book we print over the life of the entire project.

But lets say it this way, they should be bound in when possible. When is it not possible? When the Owner creates his own and our owner/architect agreement does not cover a legal review of the Owner’s custom document.

We have several projects from some owners where we have never even seen the General Conditions until after the contract is signed between the Owner and the Contractor.

We have one owner who belives that the correct location for the general conditions is as an attachment to the Owner/Contractor agreement which he makes separately available (the copy of the Owner/Contractor agreement) as a bid information document.

But those are really strange situations. Our norm is that the owner agrees to use A201 with our supplementals, and occasionaly has a few supplemental changes that we include with ours.

But when the Owner prepares his own document, you have no legal review of it, are you going to put it in your project manual? Speaking from the point of view as the architectural firm, I want a bit more distance between my office and that document other than a statement that says, ‘yes, we printed and bound it into our work, but we have no legal opinion about it, we have not reviewed it’.

How do we coordinate division 1 with this? WE don’t, the Owner has to since as I have said, some don’t have any kind of version for us to review. At our 75% review point we create a ‘DRAFT’ project manual. No date, every page is dated “DRAFT” and we print it on pink paper and a letter inside the front cover identifies the volume as a review document only. All of division 1 is in there. Even at that point, the owner has responded to a questionaire about various issues. Those are edited t his input and then he gets this with his chance to provide response as required to coordinate it.

Our division 1 is already pre-coordinated with our Owner/Architect agreement for our responsibilities, and before it goes out any custom mods to that are input into Division 1. So when one of his review comments comes back and he is saying that submittals will be returned with a different review time, we point that out to him.

William

16

I agree there are times when an owner will hold information closely to their chest and not want to devulge its secrets. In those cases, sticking with the industry standard (AIA A201) is probably your best course of action.

As an in-house specifier (currently), we also have SCs, which are fully coordinated with AIA A201, which we provide the owner if they so desire to use/edit them for their own documents. But, we have many public clients (city, county, and state) that hand us their GCs and SCs to bind within the manual. In these cases, I review the documents and make sure my Division 1 is coordinated with their conditions.

When we seal the project manual, I have an individual seals page for each consultant that has developed “specifications,” including ourselves. Each seals page identifies exactly what the consultant is sealing. We don’t seal the table of contents or the cover, which may inadvertantly be deemed as reviewing all documents in Division 00.

How can an architect be held accountable for a “legal review” of the GCs if he isn’t a licensed attorney? Any attorneys out there that would like to comment?

17

Now, non-private sector, that’s different. That’s a governmental body, they have their own requirements - often spelled out in their equivalent of the owner/architect agreement.

In the world of logic, you are correct concerning legal review. But in the world of what an arbitration board or jury may be convinced of - that is something else entirely. Any review may be a convincing argument that you are fully aware of the document’s details, legal or just for coordination purposes. An argument could even be made that if you went so far as to publish it, you can be held accountable in part - that is, maybe you ‘should’ have been more detailed.

True on what consultants are responsible for, and indeed, its not the architect’s document. But, again, its what someone can convince someone else that maybe you should have done that hangs you.

You know, as a curious point, for all the indirect work that we do that are facilities that even become federal government department and agency headquarters here in the DC area, and even in the few direct for the federal government or one of the military branches, we have never had a project manual that required a signature/seal - ever. I just wandered around the office and polled the principals. I have never had a need to create a seal/signature page for the project manual.

William

18

William:

That is interesting. In Arizona, specifications are a product of professional services and must be sealed by the registrants that prepared the documents, whether they be specifications, reports, addenda, etc.

If a specification consultant is hired, the architect that contracted for the services is still responsible for the documents and must seal those sections he contracted the consultant to prepare.

I know when I was an architect for the Air Force on active duty, I never had to seal construction documents that we issued for bidding. But we always required A/E firms to seal their documents.

19

It is off the subject of the original post, but the issue of sealing documents is governed by the licensing jurisdiction under which the profession is practicing. If the project is located in Texas, it is governed by the rather arcane rules of the TBAE. The projects we do in Florida have different rules. When I worked in Hawaii on federal work on overseas bases, we complied with Hawaii rules for sealing Drawings; original specs were forwarded to the agency we contracted with for final packaging (the Division 0 front-end stuff), and I don’t remember sealing those.

The penalties here in Texas can be rather severe for violations of the TBAE rules so we try to be very careful. Many other licensing jurisdictions are cracking down as well. Don’t get caught calling yourself an architect in the State of Texas (or Hawaii) unless you are licensed here (or there) unless you want a nasty phone call and possibly a fine.

20

We did a headquarters building for Fort Detrick for the Army in the early 1980s, a command center for the Air Force at Dover Deleware (it won an architectural award) and a variety of smaller projects in the general Washington DC area. We have done a lot of work all around the region. Headquarters buildings for International Monetary Fund (directly for them) and other organizations like Sallie Mae, FDIC - no signed/sealed project manual.

Now, we do have an office in Dallas Texas, and we almost did a project in Arizona for a hotel but they put the project on hold after design development. We have done several projects around Texas. The project manual is produced here (in DC) and sent there. I don’t know for sure they don’t seal the project manual, but no one has requested a seals page.

(yes, we have more than 1 principal and several project managers that are registered in Texas and other states where we practice).

William