EJCDC’s rationale for excluding construction specifications and drawings from the contract documents is to allow the design-builder appropriate latitude with how it implements the construction. EJCDC’s rationale for including “Record Drawings and Record Specifications” as contract documents is for the owner’s enforcement of the contractual correction period and warranty obligations (this article’s author was intimately involved in drafting EJCDC’s 2016 D-series documents).
In addition to the above, many non-standard design-build prime contracts that were reviewed by this article’s author include construction specifications and drawings as part of the prime contract documents. Practices are inconsistent as to whether construction specifications and drawings are part of the owner–design-builder prime contract and thus enforceable by the owner.
When the construction specifications are part of the prime contract, it is essential for them to be closely coordinated with the latter’s provisions. For example, construction specifications should consistently use the same terms defined in the prime contract’s general conditions or elsewhere in the contract.
It may occur to some drafters of design-build construction specifications that are to be part of the prime contract that errors or omissions in such coordination may, possibly, work to the benefit of the design-builder and its subcontractors, such as the project’s design professional. However, failing to properly coordinate the specifications with the prime contract could, possibly, breach the standard of care and, if done knowingly, be fraudulent. Therefore, when the specifications are contract documents, it is important for design professionals to properly coordinate construction specifications with the owner–design-builder contract.
A related matter is whether the construction specifications and drawings are part of the construction subcontracts awarded by the design-builder.
Paragraph 13.01.A.3 of EJCDC D-523–2016, Construction Subcontract for Design-Build Project, includes this in the construction subcontract:
Exhibit A—Scope of Subcontract Work. [Typically include from the Design-Build Contract: Specifications, Division 01 (attach to exhibit); other expressly identified Specification sections (attach to exhibit); Drawings (incorporate by reference if not attached); delegated design requirements, if any.]
Section 9.1.3, “the Specifications,” in Article 9, “Enumeration of the Contract Documents,” of AIA A142–2014, Standard Form of Agreement between Design-Builder and Contractor, includes space to indicate the relevant specifications.
Section 1.2.1 of DBIA 555–2010, Standard Form of Agreement between Design-Builder and General Contractor— Lump Sum, defines construction documents as including drawings and specifications. Section 1.3 lists the contract documents, under which Section 1.3.1.3 includes the construction documents.
Thus, the standard construction subcontract forms for design-build uniformly and expressly include construction specifications and drawings as part of the subcontract.
Who is the builder?
It is important to understand which entity will be the construction specifications’ intended recipient and user before drafting the documents.
The builder could be either the design-builder’s employees, a general contractor (GC) hired by the design-builder, construction trade subcontractors, or a combination of these. Writing for the intended recipient of each specifications section is essential.
Where the design-builder’s employees will build all or part of the project, it is likely that the design-builder would prefer broad specifications with some leeway in their implementation In this situation, performance specifying is likely to be desirable, although they must be consistent with the owner’s project criteria.
When the builder will be a GC (i.e. construction subcontractor) hired by the design-builder (common when the design-builder is a developer or design consultant) or individual trade subcontractors, it is likely the design-builder would prefer the construction specifications to be the same as those used for DBB, DNB, CMa, or CMAR projects: prescriptive, clear, unambiguous, and with little leeway. Such specifications provide greater certainty of the outcome of the construction.
When the construction will be by a combination of the design-builder’s employees and one or more construction subcontractors, it is advisable for the design-builder to identify the construction elements it will build with its own employees and inform the project design professional(s) accordingly. Doing so will help prepare the necessary sections using performance specifying or with other appropriate leeway, while specifications for work that will be subcontracted can be prepared in a more prescriptive manner.
A consideration in preparing design-build construction specifications and drawings is how the design professional’s documents square with the builders’ construction means and methods. In DBB, DNB, and CMa, the project’s design professional rarely considers construction means and methods in detail during the design stage. In design-build, however, the designer and builder are on the same team and, thus, construction means and methods are important considerations during design. Design-build is, after all, a more-collaborative approach than DBB, DNB, and CMa, which means the designer must work closely with the builder(s) during the design stage and tailor the specifications and drawings accordingly.
Another consideration is whether the construction subcontract compensation method will be stipulated price or cost-plus-a-fee. Where the compensation method is cost- plus-a-fee, the design-builder may desire the construction specifications for subcontractors allow a certain degree of latitude to encourage the builder(s) to complete their work for amounts less than their associated guaranteed maximum price, under the premise innovation encourages cost savings.
Conclusion
In preparing suitable design-build construction specifications, the design professional needs to understand not only the design intent (as is always the case, regardless of project delivery method), but also how the design-builder intends to implement the construction, including which work will be subcontracted, subcontract compensation method(s), and planned construction means and methods, and appreciate the need for the construction specifications to be well-coordinated with the applicable contracts. Since there are many approaches to design-build project delivery, there are numerous variations and nuances that affect the preparation of construction specifications for each project.
Appropriate specifying methods need to be understood and employed, in both the development of owner’s project criteria/bridging documents and design-build construction specifications. The organizational approach, level of detail, and language/style employed in these documents will vary with the owner, design-builder, and project type (the author acknowledges the advice and comments on drafts of this article from Gerard Cavaluzzi, Esq., vice-president and general counsel at Kennedy/Jenks Consultants, Inc.).
Kevin O’Beirne, PE, FCSI, CCS, CCCA, is the national manager of engineering specifications at HDR, a global engineering and architecture firm. He has more than 30 years of experience designing and constructing water and wastewater infrastructure. O’Beirne serves on various CSI national committees and is an ACEC delegate to the Engineers Joint Contract Documents Committee (EJCDC). He can be reached via e-mail at kevin.obeirne@HDRinc.com.
