Words Paul Potts
Indications and Words
Designers are responsible for converting the design intent into specific indications and words in the construction documents; and it’s the contractor’s responsibility to interpret those indications and words to bid and construct the project. It’s not the designer’s intent but the words and indications that get priced in the contractor’s bid1.
Throughout this article there will be references to architects, engineers and designers, but the term “designers” as a general term refers to the whole team of architects, engineers, interior designers, consultants and other members of the project design team.
It is difficult to say who knows more about the building under construction, the architect or the contractor. Each knows something different about it. One is intellectual the other is tactile and a matter of intuition. Until the contractor builds it, the design is just an idea on a computer disk. As the design is unspooled from its digital nesting place, the designer should want to be there to continue the work begun in the studio.
Constructive collaboration fosters creative problem solving and generates extra value for the collaborating parties. The designer gets a firsthand look at how the design intent is being interpreted by the contractor and the contractor gets access to the designer’s advanced knowledge of the construction documents to resolves issues of interpretation before they interfere with the progress of the work. While the architect experiences some risks by having a conventional interaction with the contractor during site visits, risk aversion by avoidance is hardly a better management tool. Each has knowledge to offer the other that will smooth the way for the contractor to avoid slowdowns waiting for answers from the designer and for the architect to avoid costly design mistakes or sloppy work from being built into the project.
The architect’s collaboration with the contractor is good client public relations. Their presence at the site gives the owner confidence that the outcome of the project is of concern to them. Avoiding the jobsite out of concern for financial risk is a risky strategy, leaving the design professional with little knowledge of how their documents are being interpreted.
Tradespeople work very much from repetition and intuition and it is helpful for the architect to have established a conversational relationship and allow the contractor to give voice to their concerns about the project. Contractors who have achieved a collaborative relationship with the designer are more likely to bring document conflicts to their attention.
What is the Initial Decision Maker?
The role of the initial decision maker is to resolve claims and disputes about the words and indications in the construction documents without resorting to the courts over every insignificant issue. In accordance with the Section 15.2 of the General Conditions to the Contract, parties must submit all claims and disputes arising from the construction documents to the initial decision maker (first fact finder) for resolution.2 The architect is appointed the initial decision maker by default, although another party could be chosen by mutual consent. This may seem contradictory, because the architect has their own interest at stake and the owner is their client. How could this be fair? In American Institute of Architects (AIA) member educational writings, the role of initial decision-maker is referred to as a quasi-judicial function—referring to the challenge of providing evenhanded reading of the documents, even when their own interests and the interests of their client are involved. Putting aside your skepticism for a moment consider the following.
The architect has the soundest comprehension of the construction documents, having lived with their making often for several months and is acquainted with the progress of the project and how inclement weather may have affected the schedule. A substitute must be paid to learn this all over again plus a fee for their basic services. The architect does this as part of their duties to the owner at no additional cost (unless a fee has been agreed). Costs for the alternate would be split among the parties. The architect has a professional license and is so constrained from negligence or fraud in the performance of their duties. Besides, if they fail to convince everyone of the fairness of their decision, the losing party can proceed to dispute resolution and binding arbitration where everyone will lose.
Contractors will find this resource useful. They can submit a written claim and get a written response that may close out the whole matter without hiring a lawyer. If they are dissatisfied, they can hire an attorney and proceed to court. They have gambled very little and gained a researched response from the architect to show their attorney.
Obstacles to Collaboration
Making conditions favorable for design professionals and contractors to collaborate during construction requires the parties come to grips with forces that mitigate against it. These forces are social, contractual and financial. Sometimes resentment explains the contractor’s destructive contempt for design professionals; but architects feed this contempt by refusing to make positive contributions that facilitate the contractor’s work.
The architect and the contractor are put at odds at the outset by the adversarial nature of the owner-architect agreement versus the owner-contractor agreement3. This arrangement benefits the owner but sets the architect and contractor on a path to conflict. Only by conscious effort can they put aside their contractual conflicts and form a partnership of constructive collaboration. It worked out fine when the one of the parties, the architect, was master builder and guided the project from a front seat, but the role of master builder has become burdened with too much financial risk for architects and they avoid this leadership role today.
The loss of privity defense and evolving exposure to tort liabilities have made design professionals risk-averse to open ended collaboration at the work site. The American Institute of Architects using their power over the content of standard form agreements have narrowed the duties and obligations of architects during construction to remove them from these risks. In this regard architecture has become less an art than a legal strategy.
Due to the new liabilities’ architects have been warned by their liability insurance carriers to avoid providing services that aren’t specifically defined in the owner-architect agreement4. There certainly is nothing about collaboration in AIA owner-architect agreements or the general conditions to the contract to guide them toward collaboration.
Contractors should become aware of how increased financial risk has diminished the designer’s eagerness to engage with contractors at the site and make allowances for how this has affected their readiness to collaborate. Once they were shielded from contractor’s claims by the common law of privity and exempted from tort claims, but this is no longer the case. Now they are at risk from third party claims while performing their contractual duties to the owner and for the tort of negligent misinformation for providing mistaken indications in the construction documents or during discussions at the construction site.
For the designer, tradespeople are an information rich asset that should not be turned into a sphynx by treating every question with disdain. The safest approach for determining when a question from the contractor is genuine is for the designer to ask themselves, can this question be answered with research in the construction documents or by calling in another designer? If it can, it’s just the kind of question they should be looking for.
The Design Is Taken for a Trial Run During Construction
Collaboration with the trades is an asset to the designer. They get to see the design intent being built and can ask questions of the contractor. Tradespeople are a vital resource in this regard. They have worked for several architects and are familiar with the building and zoning codes and can provide useful feedback. Rather than accusing them of fishing for an extra when they ask a question, the designer should consider themselves lucky the tradesperson is looking out for missing or conflicting indications in the documents. Sometimes that will result in a justified additive change order. Better to pay now before it is built than later.
Parties to construction agreements should do whatever it takes to nudge others into constructive collaboration. In consideration of the instructions in the general conditions that every communication from the contractor must go through the construction manager and the architect simultaneously, the designer in conjunction with the owner, construction manager or general contractor should establish early on whether it is permissible for individual contractors to call, text or e-mail the designer with urgent questions. The architect may not want to be bothered, but this is short sighted. By placing a call, possibly slowing their own progress, the contractor is acting in good faith indicating they want to be part of constructive collaboration. It’s up to the designer to respond in kind if they want to develop effective communications.
If contractors have questions as to the meaning of indications in the construction documents or feel that one is missing or incorrect, they are required to ask the architect for an explanation before proceeding5. The first step for the designer to build a productive relationship with the contractor is to answer requests for information (RFI), phone questions or queries in the field as they are received. Contractors usually have workers in place ready to perform the work when they contact the designer; it’s the nature of construction that questions arise at the time the answer is needed if the work is not to be delayed.
Architects should not respond to requests for additive change orders as though their character was being called into question. There are mistakes on every project. The most economical strategy in is to find them before they get built into the project. The contractor is just fulfilling their part in collaboration by pointing out a mistake.
The contractor’s foreman or superintendent is the last person to see the design intent in the making before it becomes bricks and mortar. The designer should welcome questions as to the meaning. In this regard, contractors are an asset to the architect’s construction administration services. The designer should encourage any communication that improves chances that their design intent gets built into the project instead of an error, omission or code compliance violation.
Designers are often suspicious of the questions posed by contractors and disconcerted by the seeming mayhem at the construction site. Many professionals believe this is caused by the contractor’s disorganization. There is another explanation: prior to construction, the design resided only in a computer in the studio, which is a cool place to work things out. Construction is a hot place where every issue gets worked out.
Construction Is a Continuation of Design by Other Means
Project design is a continuum from schematic design until final occupancy. During construction the construction documents are put to the test. Errors are found and corrected, missing parts are discovered and added to the documents and code inspectors comb the building for compliance errors. Each of these steps are implementations of the design intent. The preoccupancy punch list is not final until the client occupies every part of the building and gives it the stamp of approval. Final occupancy is the final punch list. The client eventually occupies and gives use to every part the project for its intended purpose. For the first time the project is given the full test. Only once the client accepts the building can it be said the project has fulfilled the design intent.
The contractor benefits from the architect’s insight into the design to guide them when indications in the construction documents leave them in doubt. The architect benefits from the contractor’s knowledge and experience which can alert them to mistakes in the documents. While the contractor is not responsible for seeing that the project complies with the building code, they know the building codes very well and are on a first name basis with the building code inspectors to ask their advice. The designer should tap into this knowledge.
It’s a prudent rule of constructive collaboration that designers should not give off-the-cuff responses to contractor’s questions. Research the documents and give a confident, well-researched answer.
Both parties must learn to respect the priorities of the other. Architects are wary of the risks of over involvement with contractors at the construction site. Contractors become irritable when requests for information are slow walked through the process. The solution to these problems is constructive collaboration. The contractor and architect will have to work collaboratively to overcome their pride and fear of risk.
This article represents the research and opinions of the author and is intended for general information purposes only and does not constitute legal advice. Because the interpretation of common law varies from state to state the reader should consult with legal counsel familiar with the laws in their state.
- Para AIA A232 General Conditions of the Contract for Construction section 15, Claims and Disputes
- Deconstructing Adversarial Contracting, Denise L. Nestel, Esq. Porter Hedges LLP
- “Stepping outside your scope when it comes to construction administration is a risk and may leave your firm vulnerable to claims. Likewise, dealing directly with contractors without remembering your relationship to the owner (“the law will treat the architect as the owner’s agent”) is also risky.” Coggshall, W. L. (2010, February 16). Construction Administration Liability Risk Avoidance. 3. Re-published by a/e ProNet, March 14, 2012. Retrieved from https://aepronet.org/construction-administration-liability-risk-avoidance/
- Para. 3.2.2 AIA A 232 General Conditions to the Contract CMa edition