Construction Team Contractual Dynamics
Allthough the commissioning professional will almost never influence a project’s delivery method or the owner’s contractual relationships with the contractors, the project delivery method and contract relationships greatly influence the commissioning process. It is incumbent on the commissioning professional to understand those before developing a commissioning plan.
In its purest form, a commissioning plan defines activities which comprise the commissioning process and assigns responsibilities for project team members within those activities. The commissioning plan cannot assign responsibilities to team members outside of their contractual obligations to the owner and, as such, the plan may need to be customized to reflect atypical project delivery methods.
Most new construction commissioning standards and guidelines are based on a traditional design-bid-build process where the “build” portion is awarded to a single general contractor (GC) who hires subcontractors for work not self-performed by the GC. In this model, the design team’s, the GC’s, and the subcontractors’ roles and responsibilities are well established by standard American Institute of Architects (AIA) contract documents or various facsimiles thereof.
From a commissioning perspective, a convenient aspect of such a design-bid-build process is the single point of responsibility for construction. Because commissioning is focused so heavily on system-level performance, the contractual relationships make it logical to assign ultimate responsibility to the general contractor for system completion and system performance. It is not fair to assign system responsibility to a single subcontractor who is only contractually responsible for a portion of the system.
For example, some people consider HVAC system commissioning to be the HVAC subcontractor’s responsibility. In reality, though, proper system performance (such as an air handling system) could require a joint effort between the HVAC, electrical, plumbing, and fire alarm subcontractors. When the HVAC subcontractor has no contractual authority over the other subcontractors, assigning system-level commissioning responsibility to the HVAC contractor could be a barrier to success. The standard commissioning process leverages the fact that the subcontractors are contractually under the direction of the GC, and it makes sense for the GC to drive and be responsible for the construction team’s commissioning activities.
What happens when the owner contracts directly with multiple prime contractors, all on the same level of the project organization chart? In this situation, the general contractor reports directly to the owner in parallel with the HVAC, plumbing, electrical, fire alarm, and sometimes even the controls and TAB contractors. How do we write a commissioning plan for this situation? The commissioning professional needs to understand each contractor’s responsibilities to the owner and to each other, and to hope that one of the contracts includes overall project coordination and scheduling. That contractor would then be assigned the typical GC commissioning responsibilities.
If the owner employs a construction manager (CM) to facilitate the hiring of multiple prime contractors and then to be responsible for their coordination and scheduling, the CM would be assigned the typical GC responsibilities in the commissioning plan. Of course, the commissioning professional will need to confirm that those responsibilities are within the terms of the CM’s contract with the owner.
The distinction between various contract obligations is important to understand and document during the commissioning planning process for any project. However, it is especially important for a project with contractor incentives or penalties tied to commissioning performance metrics. It is almost never clear enough to say “the contractor” will earn a monetary award if certain metrics are achieved or will be back-charged for certain commissioning expenses if other metrics are not achieved. In the case of awards, all contractors will want to claim responsibility. In the case of back charges, no contractors will accept responsibility. The commissioning plan needs to be crystal clear about exactly which contractor (or the CM) has overall system readiness and performance responsibility, and that assignment needs to be in line with the terms of that contractor’s (or CM’s) relationship with the owner.