When accusations are made and fingers start pointing, it usually comes down to the tangible evidence; documentation. While architects should be concerned with their documentation, as also addressed in the companion white paper, Bulletproof Contract Administration: Managing Risk during Construction, documentation generated by the owner and contractor are equally important. Accordingly, we will first examine documentation that the architect should expect to receive from the owner as well as architect-generated documentation of owner activities.
Owner documentation is important because it provides a verifiable record of what has been agreed upon and approved, instructions that have been communicated, and owner information that has been provided during the project. The absence of documentation of key communications and records can result in disagreements and unfulfilled expectations.
Therefore it is prudent that the architect receive complete owner documentation in order to be responsive to project parameters and have knowledge and a record of all owner actions, including separate owner consultants and contractors.
Project Program—Projects are often begun based on incomplete or poorly developed owner project programs. As the project progresses, it is not unusual for the program to be changed to fit the owner’s needs. Obtaining a written owner program before beginning services provides a base line that can be used to settle disputes and justify a change in services.
Project Budget—Orally conveyed budgets can take a life of their own, evolving and changing as needs and limitations are realized down the road. Obtaining a written owner budget before beginning services provides a base line that can be used to settle disputes and help establish a finite project scope.
Owner-Contractor Agreement & General Conditions—A copy of the Owner-Contractor Agreement is required in order for the architect to administer the construction contract, but inexplicably some owners refuse to provide a copy of the agreement to the architect. A response that can be made in such a situation is to discuss with the owner the necessity of having the agreement in order to provide services and refuse to provide those services until a copy is provided.
Should these discussions not be successful, another option is to send the owner a blank copy of an AIA agreement that conforms to the contractor’s delivery method, and inform the owner and contractor in writing that the project will be administered in accordance with the terms of the blank contract until a copy of the executed contract is provided.
A similar problem can occur if the owner and contractor have agreed upon general conditions that are different from the general conditions published by the architect in the contract documents. In such a case the owner-contractor changes may be in conflict with the architect’s general conditions, thus preventing the architect from performing services in accordance with its contract or the standard of care.
For example, if the owner-contractor general conditions do not require contractor submittals, the architect may not be able to determine the scope of the work and therefore may not be able to determine work conformance and substantial and final completion. When differences between the two documents are significant, a negotiated agreement of the general conditions between the owner, contractor and architect may be required in order to get everyone on the same page.
This is often best accomplished with a single meeting wherein the three parties review the document line by line and come to agreement. Once consensus is reached, a change order to the Owner-Contractor Agreement is often required. A change in the Owner-Architect Agreement may be required if the architect’s services are changed, but use caution to make sure state statutes and the standard of care are being met.
The contracted structure of the project can become conflicted and confused when the owner and contractor go their own way with the general conditions, but it happens more often than one may expect. The key to keeping the situation under control is to make sure the owner and contractor fully understand the importance of a unified general conditions for the project.
Design Phase Sign-offs—Important documentation to obtain from the owner is its sign-off on the Schematic Design Phase and the Design Development Phase. These phases of service by their very nature can be disputed after the fact, and a signed off set of documents can mitigate a disagreement. In addition, each phase of design can usually be invoiced 100% without dispute after the sign-off is obtained.
Owner Accepted VE Substitutions—VE Substitutions are often administered over a short time span after the construction contract is executed with little opportunity for the architect to conduct a thorough evaluation. Moreover, it is not unusual for the accepted substitutions to consist of a cryptic list of items without benefit of an accompanying specifications or other supporting data to properly define the product quality. The architect is often required to give its quick approval based on the incomplete information and without benefit of a longer, more deliberate review. A high percentage of claims based on product failures can be traced back to a hasty and poorly documented value engineered substitution.
Accordingly, the architect should not approve a substitution unless it can reach an equally acceptable comfort level as on the originally specified product. Absent appropriate documentation, including a specification, detailed drawings if required, and documented performance history, in addition to adequate review time, the substitution should not be accepted.
When acceptance of the substitution is forced on the architect, the VE changes should not be incorporated into the contract documents to avoid increased risk to the design professionals, and the work should be listed as “owner-accepted nonconforming work” on the Certificate of Substantial Completion.
This course of action may be controversial, and it is important to discuss the VE Substitution process early in the project before the construction contract is executed. Last minute contractor-driven VE changes are typically cost reduction changes that result in decreased quality and value. The architect must document its refusal to approve unacceptable VE changes in order to avoid being held responsible.
If the owner and contractor proceed with a substitution that the architect cannot accept, the architect’s non-acceptance should be documented in writing and the substitution designated as, “owner-accepted nonconforming work.” Architects typically maintain quality-driven specifications, and quality should not be compromised as a result of inadequate review time or owner preference.
Owner RFIs—An owner may choose to document requested information through a formal RFI, and the AIA has provided a standard form for that purpose. Any owner generated RFIs should be logged and tracked by the architect, and copies of the RFI and any related documents should be retained.
Owner Documentation Discussion Summary:
- Obtain copies of the owner’s program and budget
- Obtain owner sign-offs on design phases
- Obtain copies of the Owner-Contractor Agreement
- Obtain copies of the General Conditions if changed
- Re-negotiate General Conditions if necessary
- Establish reasonable review time and supporting information for VE substitutions
- Designate unacceptable VE Substitutions as owner-accepted nonconforming work
- Send RFIs to owner if information not provided
- Document all owner approvals in writing
- Log and track RFIs independently