Expectations, Realities, and Remedies

by eyetee | September 3, 2013 8:30 am

SPECIFICATIONS
David J. Wyatt, CDT

In spite of our best efforts, we occasionally commit errors testing our professional skills and demeanor. The daily demands on design professionals, especially specifiers, just about guarantee this. Research, documentation, correspondence, coordination, time entry, billing, time with reps, project meetings, all the way down to taking out the trash—the accumulation of all these tasks place trouble-free work more in the realm of ‘possibility’ than ‘certainty.’

However, the real spice in this mix is how desire to meet others’ expectations challenges our basic principles.

From a logical point of view, an expectation is the most likely result of events based on averages. Whether hopeful or pessimistic, they tend to be influenced by memories of past experiences. As such, expectations can complicate team relationships.

For design professionals, expectations begin with some of our very own marketing tools—websites, renderings, testimonials, and models that plant the seeds of utopian dreams in the minds of owners. The better the renderings and models, the higher the client’s expectations. Of course, as the real project emerges with a practical budget, owner expectations need to be tempered. In some cases, the very factors leading to the project being awarded become the sources of long struggles—benign misrepresentation of the ability to satisfy expectations the architect inspired in the first place.

Another kind of expectation can occur within the design team. Specifiers may be asked if the project manual contains a provision to get the architect/engineer (A/E) out of a jam. Sooner or later, it happens: a contractor discovers an inadequacy in the drawings or specifications of such magnitude that financial opportunities for the contractor, unexpected expenses for the owner, and professional liabilities for the A/E appear likely… unless there happens to be a special remedy tucked away between the project manual’s covers. The hope shining in the A/E’s dewy eyes quickly changes to despairing ennui when you tell him or her there are no such phrases that resolve every unexpected occurrence or remedy substandard documentation.

A value-added change order is one thing. However, many budgets are so tight even value-added enhancements are often out of the question, particularly in the public sector. A change order to settle a documentation problem is altogether different. To most owners, this kind of change order is about as welcome as a shot of laxative—a necessary but uncomfortable way to move beyond a bad situation. A/Es are as averse to contract modifications to remedy professional errors as owners are. Human nature being what it is, those in trouble look to the specifications, hoping to find a panacea, a golden phrase, to dodge blame and avert embarrassment.

Role and rule of specs
A fair number of owners, contractors, and even A/Es believe specifications prevail when there is a conflict in the documents. This is known as a ‘precedence provision;’ it derives from believing specifications to be easier for courts to interpret and enforce and, therefore, as trumping drawings in claims, disputes, and mediations.

Another constituency floats the idea contractors and their subs bid according to what they derive from the drawings, and the specifications take a back seat. Overriding this is the principle that the contract documents support each other in expressing project requirements. In Article 3.01 (“Contract Documents: Intent, Amending, Reuse”), Engineers Joint Contract Documents Committee (EJCDC) C-700, Standard General Conditions of the Construction Contract, says:

The Contract documents are complementary; what is required by one is as binding as if required by all.

American Institute of Architects (AIA) A201, General Conditions of the Contract for Construction, Article 1.2 (“Correlation and Intent”) goes a little further:

performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.

The same provisions can be found in AIA A107, Standard Form of Agreement Between Owner and Contractor for a Project of Limited Scope. AIA A105, Standard Form of Agreement Between Owner and Contractor for a Residential or Small Commercial Project, includes the complementary phrase, but excludes the performance phrase. Therefore, A105 users might consider putting it back in by way of “Supplementary Conditions.”

With this in mind, ranking specifications over drawings, or vice versa, undermines the complementary document principle. Still, some owners insist on it. From a statistical standpoint, one can only hope one’s preference will work half the time. But, Alexander Pope was right: “Hope springs eternal in the human breast.”

Defending the owner
Another harmful, but commonly held, expectation is the A/E is supposed to defend the owner and work in his or her favor when acting as the decision-maker in claims and disputes initiated by a contractor. This probably derives from the notion the A/E’s role is like that of an attorney in such matters. True, A/Es and attorneys are licensed professionals and are retained by owners for rendering legally constrained services—but that’s about where the similarity ends.

By law, the A/E cannot warp information to favor either the owner or the contractor, whereas the attorney can. To this point, in Article 9.08 (“Engineer’s Status During Construction: Decisions on Requirements of Contract Documents and Acceptability of Work”), EJCDC C-700 reminds us:

When functioning as interpreter and judge under this Paragraph 9.08, Engineer will not show partiality to Owner or Contractor[.]

The parallel AIA A201 provision is in Paragraph 4.2.12.

Many owners aware of this still harbor lingering perceptions to the contrary. Yet, an enforceable contract is a reasonable balance of rights and responsibilities. Untenable expectations, like those described, throw the balance off for the short-term relief of one stakeholder while neglecting the others.

Finding solutions
CSI has a couple of strikingly simple yet effective ways to reduce errors and omissions in contract documents. For example, there are the 4 Cs (i.e. Clear, Correct, Concise, and Complete), whose use should result in streamlined documents that enhance rapid information retrieval. More to the point, it is easier to spot and correct errors in a streamlined document than a cluttered one.

As written in the Project Resource Manual (PRM), “Say it once and in the correct location.” This applies to specifications. For drawings, one would do well to “Say it one way” inasmuch as repeating notations on drawings is necessary. However, many errors occur when the content of notations vary from drawing to drawing.

Bob Johnson, RA, Distinguished Member, FCSI, CCS, CCCA, of Johnson & Johnson Consultants (Cedar Crest, New Mexico) is a proponent of this principle for drawings as well as specifications.

“Although they may not realize it, people follow this principle all the time for things like partition types. Expanding the concept to other aspects of drawing production can save time and money,” he says. “For example, detail each exterior wall type with all the components called out, then refer to it on all other drawings where that wall type appears. Using typical details for early design stage deliverables provides a lot of information to the design team in a really efficient way.”

We’re human, and even the most conscientious will make a mistake from time to time. In this event, it is important to keep an open mind. Following a few thoughtful steps can salvage the situation, perhaps the project, and certainly one’s professional esteem for the long-term good.

1. Whether you work in a firm or are an independent consultant, don’t oversell your abilities by portraying your best performance as typical.
2. Remain calm. In the event of a claim, review all the contract documents. It is quite possible a conflict or error was corrected in a forgotten addendum, supplemental instruction, or a letter.
3. Don’t decide anything until a reasonable bit of time has passed so the problem can be evaluated in the proper frame of mind. If work can progress, it should be continued while a solution is being devised. Talk to someone not involved in the project. A respected colleague may have faced the same circumstances and can offer a clear perspective.
4. Once the documents have been collected and reviewed, determine how to resolve the situation that causes the least damage. When acting as a decision-maker, keep the long-term interests of the stakeholders in mind.

Being willing to seek the right remedy without self-preservation as a primary motive preserves one of the design professional’s most honorable and valued responsibilities as decision-maker.

Above all, a solid client relationship will not usually be severed as the result of an honest misstep. On the other hand, ignoring a problem, pretending to be infallible, or nurturing untenable expectations to keep a client more likely will.

David J. Wyatt, CDT, is the specifications writer for TC Architects (Akron, Ohio), where he is responsible for product research, technical specifications, bidding documents, preparation of project manuals, construction contracts, construction bulletins, shop drawing review, and contract close-out for all project. With the late Hans Meier, Wyatt co-authored Construction Specifications: Principles and Applications. He can be reached at dwyatt@tcarchitects.com[1].

Source URL: https://www.constructionspecifier.com/expectations-realities-and-remedies/

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