Getting What You Specify – Part Three
ImplementationThe implementation phase in a building project is the construction phase. This is the phase where the contractors fulfill their part of the owner/contractor agreement that was based on the contract documents prepared by the architect and engineer and bid on by the contractors.
Contract DocumentsThe specifications and the drawings are both part of the owner/contractor contract to build the facility. The architect and engineer are not a direct party to this contract and do not have independent authority to modify the owner/contractor contract. This is a fact that many architects, engineers, and contractors tend to ignore when they attempt to change the contract documents via the product submittal process.
There should be a procedure outlined in the contract documents for the contractor to submit contract document changeorders. The original engineer of record who affixed her seal on the contract documents must agree to modifications/substitutions proposed by the contractor or owner. On the other hand, the engineer of record does not have independent authority to modify these contract documents (via submittal approval, punch list, or otherwise) without the owner’s concurrence.
Do you need a law degree to write specifications in today’s litigious construction industry? Let’s hope that we haven’t gotten that fanatical and unrealistic. However, it is important to keep in mind that the specifications and drawings are part of the contract documents. This may be semantics; however, it is good to keep in mind that “CD” stands for the construction document / design phase of a project. Let’s not confuse the terms (or give the attorneys another card to play) by calling the contract documents CDs or referring to them as construction documents implying “construct as shown.”
Very seldom, if ever, does the final construction look exactly like what is depicted on the plans that are part of the contract documents. If this were true, why would we ever need coordination drawings, record drawings, or as-built drawings to be made by the contractors? Those are the documents that are (or should be) the owner’s record of what was actually built.
The plans and specifications are part of the owner/contractor contract documents and are used to communicate the “design intent” to the bidding contractors. They are produced in the construction document design phase of the project.
Submittal RequirementsThe specifications should clearly state what is required in the submittal for review by the engineer and owner. There are various forms of submittals that can be requested, including shop drawings, product data, samples, test reports, certifications, etc. This is effectively the beginning of the evaluation step in the process. The submittals are supposed to reflect what the contractor is going to install in the project, and generally become a part of the O&M manual that is given to the owner at the end of the job.
The O&M manual for a building is supposed to be the “as-built” reference manual documentation for the owner’s maintenance staff. Once all of the design team and contractor team members are no longer working on the job, the owner’s facility management team only has the contract documents (which include the drawings and specifications) and the O&M manual to rely on to understand how to operate the building.
EvaluationThis is the period of time that the actual installation is looked at by both the design professionals and the owner to evaluate if the original vision as documented in the planning phase has been accomplished during the implementation phase. It is not the intent of the architect or engineer to dictate construction means and methods by which the contractor will construct the building.
However, the engineer and architect do generally have a contractual agreement with the owner to review the product submittals and do site visits and punch lists while the contractors build the building. This is simply part of the evaluation phase of the project and the professional engineer is working on behalf of the owner to help ensure that the owner gets the quality of construction that was communicated in the contract documents.
Submittal ReviewThis is where the rubber hits the road. Does the product selected by the contractor meet the contract document requirements? If the product selection procedure and specification preparation in the planning phase were done in a manner with good communication with the owner and good documentation in the contract documents, then this process can be quick and done with confidence. If these were not done thoroughly, then the submittal review can be a difficult task and may result in a compromise regarding what the owner expected to get.
The submittal process is not intended to be a last step in the design phase. In fact, once the contract documents are completed and a construction contract is signed between the owner and the contractor, the engineer does not generally have the sole authority to change the contract documents via the submittal review without a documented changeorder agreed to by the owner.
This is the main reason why there are disclaimers in the contract document specifications that clearly tell the contractor that the submittal review does not relieve the contractor from the responsibility of providing to the owner what was in the contract documents. The contractor has, by this time, signed a contract with the owner to provide what is contained in the contract documents (the engineer is not a direct party to that contract between the owner and the contractor).
In real life, many disputes arise when an engineer reviews and approves submittals for products with features and accessories that don’t fully meet the specifications. The contractor may not fully understand that the submittal review is not a changeorder to the owner/contractor contract. The contractor may assume that the engineer does have the authority to accept a modified product (substitution) via the submittal process and order the product in good faith based on the submittal review. This is the start of many construction disputes and lawsuits.
In this case, both the contractor and the engineer have violated their contracts. The problem started with inadequate training of the people who were involved with letting it get this far. The engineer should not have approved the submittals and the contractor should not have ordered products that were not in accordance with the contract documents. The owner has a right to have the products that meet the criteria documented in the contract document drawings and specifications.
Gap AnalysisOne way to analyze a problem situation is to use the gap analysis method. This method looks at the ideal model and compares it to the actual practice. As a result of the comparison, gaps are listed and identified between the ideal vs. the actual. Although in real life it is rarely possible to achieve perfection, it is still good to know and understand the gaps to minimize them if feasible.
The submittal review is essentially a gap analysis. Is the product being submitted meeting the “required function” specified in the contract documents, and is it being clearly, completely, correctly, and concisely communicated in the submittal?
Hold The SpecIf a professional engineer puts his professional seal on the contract document plans and specifications, he should know what and why he specified what he did and have the confidence to “hold the spec” during the submittal review phase. The submittals are not a time to modify the contract documents. The submittals should not be a time when the manufacturer’s representative(s) should be allowed to offer substitutions of products that don’t meet the intent of the contract documents.
Careful and complete review of submittals may prevent construction delays, inconveniences, and possible legal disputes later in the project. If a submittal does not show complete compliance with the contract document drawings and specifications requirements, then use the red pen and make note of the deficiencies. Always ask for a corrected record copy of the revised submittal to ensure that the contractor and supplier understand what is required. Even if a submittal is marked “approved” or “review as noted,” a record copy should be requested for both the engineer’s and owner’s files to ensure that the contractor and supplier fully understood the “as noted” comments and complied with them.
ChangeordersOwners sometimes make first cost the highest criteria for product selection at the bid or construction phase. Substitutions, value engineering, and cost cutting are completely different issues and should not be intertwined with submittal reviews for products submitted with the intent of meeting the “basis-of-design” requirements. These issues are effectively changeorders to the contract documents, because they modify the contract between the owner and the contractor, which is based on the contract documents that were prepared as a result of the contract between the owner and the engineer.
There are methods to allow for substitutions, value engineering, and cost cutting proposals within contract documents; however, many times this is not followed and the submittals are used as an attempt to gain approval for what are effectively contract changeorders. The engineer should, at this time, be compensated for such changes and the sealed contract documents that were sent through the municipality’s plan review process should be resubmitted to reflect any changes and modifications that are made.
Site Visits/Punch ListsGet out to the job site and verify that what was specified and submitted on the product submittal is really what was installed in the job. Part of many design contracts between owners and engineers include a construction administration phase that includes some site visits. During these site visits, the engineer will typically develop a number of punch lists. There have been many articles and debates over the past several years on just what a site visit means — is it an inspection or just observation of conformance to the contract documents? Most of the debates are due to the legal profession’s attempt to twist the definition of these terms from what the AE profession intends them to mean.
The InspectorThe inspector or authority having jurisdiction (AHJ) does not have the authority to do any more than enforce the code that is in effect in the municipality in which the construction is being done. Of course, you may have the building code AHJ who may put a surprise parameter into the decision as late as during the construction inspection based on a different code interpretation by the inspector.
Whenever the AHJ takes it upon himself to start injecting personal preferences, use his authority in a manner to manipulate the contractor, or start making engineering decisions, then there will be situations of unfair competition in the industry. The contractors then have to start adding costs to the jobs to cover any unknown requirements that are not generally part of the code requirements or documented on the contract documents that they used to bid.
Warranty Period“Just get through that first year.” The first year of operation of most facilities is the period of time when the real evaluation of the successfulness of the vision, planning, and implementation steps takes place. This is also the period that the manufacturers and contractors keep their fingers crossed hoping that nothing goes wrong. After the typical one-year warranty period, either the facility operations or the design team are usually considered responsible for problems that arise. However, this is not always the case. Installation and construction deficiencies are not always caught or realized until after a problem occurs, and this can sometimes be after the first year of occupancy as the building and products run through varying seasonal conditions.
ResourcesThe CSI Manual Of Practice “… outlines recommended techniques and a philosophy for preparing, organizing, using, and interpreting contract documents…” and “… is intended to supplement and complement reference material prepared by other document producers…” such as the American Institute of Architects (AIA) and the Engineers Joint Contract Documents Committee (EJCDC). Contact CSI (www.csinet.org) to obtain information on how to get a copy of this manual which “is intended to serve as a reference document covering a wide range of information needed by those involved in the design or construction process.”
CSI also provides certification programs for specification writers, construction administrators, and product representatives. These certification programs help ensure that the professional understands the basic procedures involved in the construction industry.
ConclusionVision, planning, implementation, evaluation, predesign, design, construction, project closeout/occupancy. Do your project design documents all fit the model outlined in this three-part article on getting what you specify? Are your clients generally satisfied with the facilities you designed? If so, good job.
If not, maybe it is time to sit down with your peers and discuss how you manage your projects. There are good resources available to gain more knowledge about effective project management and decision making techniques. Hopefully this article will help give the confidence that is needed to speak out when you don’t get what you specify. ES