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Today is Veterans' Day. 

Take a moment and reflect on how your life might be different without the conscious sacrifices of the men and women of our Armed Forces.

A nation that forgets the services of it's soldiers will be forgotten itself.

Photograph of the National World War II Memorial on the Mall in Washington DC.  Own work, all rights reserved, 2006.

Precedence Clauses

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A precedence clause is a contract provision that states the order of precedence within the Contract Documents to be followed in case of a conflict between any of the various documents.

The AIA documents do not contain precedence clauses between the drawings and the specifications, instead noting that conflicts between these documents shall be referred to the Architect for interpretation.  This posture is presumably to allow the Architect the widest range of interpretation in case of a conflict.

The CSI recommends following this posture and not publishing precedence between the various documents.

Almost every government and third party construction contract provider does include a precedence clause, so for any practitioner working with contract documents from any source other than the AIA, it is very important to determine if your Contract Documents include a precedence clause, and if yes, what that precedence actually is.

Most contract clauses are written by attorneys.  Few attorneys can draw, or read drawings, but all attorneys can write, and so they write things with which they will be comfortable.  As a consequence, most, if not all, precedence clauses give precedence to the written contract documents over the graphic, putting specifications interpretations ahead of the drawing notes.

So, in case of a discrepancy between the drawing and the specification, the complex drawing annotation is going to be overidden by the written specifications, even if the specifications are not correct.

For projects with precedence clauses in the General or Supplementary Conditions, simple direct drawing annotations carefully coordinated with the terms used in the Project Manual will provide the clearest connection between the graphic and written Construction Documents.

Actually, this is true for all projects, not just those with precedence clauses.

Always take care to determine if your Contract Documents include a precedence clause.

Coordination of Drawings and the Project Manual - Part 2

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Today's images are from the old CSI Manual of Practice.  For some reason, there were no counterparts to these useful diagrams produced in the newer Project Resource Manual.  I think these first two are very important to help understand what annotation content is required in a drawing and, just as important, what content should be left out.

The sketch wall section shows a number of notes, the Wrong Way, and the Right Way, as well as whether the information shown wrongly belongs in another specification section, or on another drawing.  We can quibble over whether the recommendations are fully consistent, but the gist is clear.  The Right Way is to use simple annotations that convey identification without too much information as to quality, size, or style.

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The second sketch lists Should's and Should Not's for drawings, capital annotation crimes include using references to specific subcontractors, use of proprietary names, and use of the ever-popular "See Spec". 

This latter term is one of my personal favorites.  It conveys the writer's sense of concern that more information about that item is needed, while also conveying their ignorance of what that information might be, as well as their attempt to pass the buck to another writer of a different document. 

Please forgive my direct commentary, but there is no reason to write these words.  Properly coordinated documents will only require the most generic identification of items on drawings, using terms identical to the specifications.  The terms will connect the item with it's specification description, no additional modifiers required.

Most drawing annotations contain far too much information about the items denoted.  This practice not only fosters coordination errors with the specifications and with the drawings, but increases the effort needed to produce the drawings and clutters them with unnecessary and potentially erroneous information, often included on the basis of "..no one reads the specs anyway..."

Short, generic descriptions also reduce revision effort in the event of a change of product.  If a modified bitumen roof is changed to a thermoplastic membrane, the simple annotation "membrane roof" would not need to be changed on the drawings.  Shouldn't we all be in favor of doing less work, and putting the information where it really belongs?

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This latter sample checklist is one way of developing specification content based on drawing review, as well as a tool for including cross-references between sections.  There are a number of ways of gathering and organizing this information, any method that retains the information and records the decisions made is a good method.  The key to good practice is to find one and use it consistently.

Next Post:  Precedence Clauses

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Coordination of Drawings and the Project Manual

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One of the most important coordination tasks is that of terminology.  The drawing notes should use the same terms as the specifications in order to avoid confusion or use of terms not found in the Project Manual.  The Specifier should be the arbiter of terminology and the final word on drawing annotations.

Drawings are Contract Documents as well as the specifications, the words used there have meanings, the drawings themselves are consequences and use of multiple terms for the same item can lead to expensive confusion where Redundancy becomes Ambiguity.

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Use of a project lexicon based on the Table of Contents of the Project Manual is a good way to begin drawing/specification coordination.  The Drawing Keynote list as well as General Notes from the drawings (if used) should be carefully reviewed by the Specifier in the late stages of each design phase to ensure that the terms used to designate items on the drawings are the same as those used in the Project Manual to denote materials and equipment.

New terms may be required as the design evolves, features and attributes may come and go, but clear, unambiguous and simple annotations are critical to maintaining the all-important coordination between drawings and specifications.

Specification Coordination Responsibilities

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The prime A/E is responsible for coordination of the specifications.  The consultants' drawing content and the content of their specifications must be coordinated with those prepared by the prime A/E.

The prime A/E must ensure that all salient qualities of all materials and equipment are included, as well as standards of workmanship and quality of manufacturing for those materials and equipment which will product the results necessary to meet the project's needs.  Areas of potential overlap between consulting disciplines must be identified and resolved to prevent duplication or omission of critical scope.

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Ideally, a single person should have responsibility for determining consistency between drawings and specifications and within specifications.  Communications between the team members is critical.  Conference calls, including video, face-to-face meetings, email, desktop sharing and detailed checklists are all potential tools for coordinating content, terminology and scope.

 

 

Coordinating Drawings and Specifications

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In this brief examination of a perennially popular topic, let's look at coordination of Drawings and Specifications.

Drawings show:

  • Size
  • Form
  • Quantity
  • Relationship
  • Graphic representation

Specifications show:

  • Quality
  • Materials
  • Workmanship
  • Administrative procedures

Drawings and Specifications are complementary:

  • Specifications supplement, but should not repeat information shown on the drawings
  • Drawings supplement, but should not repeat information shown in the specifications

As we will see in a forthcoming slide, the specifications primarily contain qualitative information.  More discussion to come.

Frequently, information is shown in the documents in locations other than the optimum locations shown.  This can occur for many reasons; lack of familiarity with process, information developed at different times by different people, changes in information not followed through on all occurrences, etc.

Proper separation of drawing information and specification information can increase productivity and produce clearer, more understandable documents which are also easier to revise, if necessary.

Coordination is required at all of the following levels or interfaces:

  • Within Project Manual
  • Between drawings and Project Manual
  • Within drawings of each discipline
  • Between drawings of each discipline
  • Within specifications of each discipline
  • Between specifications of each discipline

Failure to Coordination can result in any or all of the following:

Conflict:

  • Redundant requirements shown in multiple places may not agree.
  • Incompatible conditions may require costly changes to be constructed

Omission:

  • Failure to show information in the proper place may result in some critical information not being shown at all anywhere.
  • Lack of critical information may result in violation of codes and added costs to comply.

Discrepancy:

  • Revision may change an item in one location and overlook it in another.
  • Multiple "intents" may be shown, leaving option for selection to Contractor.

 

 

Single Prime Contract

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There are many factors influencing the type of Construction Contract and Procurement Method used for a particular project. 

Possibly the factor with greatest influence is whether or not public money or a public owner is involved.  Public Contracts are nearly always required to be procured by means of Competitive Bidding, while private work is not subject to this requirement, although some private owners may opt for a competitive bid anyway.

Competitive Bidding is a Procurement Method where the Owner offers the project to qualified bidders to offer a bid price for the Contract based on very complete Contract Documents.  A modified form of this method, often used in private work, offers the project to a selected list of qualified bidders chosen by the Owner, for bidding in a similar manner.  Public work cannot typically use this method, which involves selection and higher qualifications of the select list.

Direct Selection, or Negotiation is a Procurement Method where the Owner directly selects or invites the Contractor to negotiate a price for the Contract based on some form of Contract Documents, which may or may not be complete.  Often, early stage design documentation is used and the provision of the Contractor's pricing and coordination skills become part of the contract scope.

Another factor is the Project Delivery Method desired.  Again, the divisions between methods are often divided between public and private work, although some public agencies are now able to procure projects using a Design-Build method.

Types to consider include:

  • Single Prime Contract:  Still the most common kind of Construction Contract.
  • Multiple Prime Contract:  Used where fast-track construction is desired or multiple contracts are required (sometimes by law).
  • Construction Manager Advisor:  Could be combined with either of the two above.
  • Construction Manager Contractor (At-Risk) Could be combined with either of the first two above.
  • Design-Build:  The A/E and Contractor are the same entity, a very different form of delivery.
  • Owner-Builder:  The Owner and Contractor are the same entity, another very different form of delivery.

Basis of Payment, or Compensation is also a factor.  Some Project Delivery methods and Contract Types lend themselves to different compensation methods, which offer different values to the Owner.

Lump Sum:  Where the lowest price can be guaranteed on bid day, but the final price of the project is not known until completion or after.

Cost Plus A Fee:  This method does not offer much certainty about the price, but does ensure that the costs and fees are transparent and visible to all parties.

Guaranteed Maximum Price:  A variety of Cost-Plus-A-Fee, where the Project's Maximum Price is known at time of Contract signing, but whether this is the lowest price obtainable is not known.

 Unit Price:  Where the Cost for a given unit is known,  but the ultimate scope cannot be predicted or is subject to change.

Each of these methods of compensation can be specified to occur periodically, or in different intervals depending on project size, complexity and financing.

These Procurement Methods, Project Delivery Methods, and Methods of Compensation are capable of combination and re-assembly into an almost infinite number of combinations, depending on the Owner's needs, Project requirements, and Legal constraints. For further reference, see CSI PRM Module 3 for Proejct Delivery.

For purposes of our future discussion, the Single Prime Contract, Design-Bid-Build will be the method we will discuss, it is the most common, although maybe not the simplest, of the methods.

Each of these Contracts will have the same following basic Elements:

  • Identification of the Parties and a statement that the Parties make a promise constituting an offer;
  • Both Parties sign, indicating understanding and agreement
  • Both Parties receive consideration and possess legal authority to negotiate a contract.

 

Third Party Obligations of Participants

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Today's slide demonstrates the common three-sided (or tripartite) arrangement of the parties in design and construction activities in a Traditional Bid or Negotiated Contract.

In this diagram from the CSI PRM, the Owner is bound to the A/E and Contractor by solid lines representing contracts (or agreements).  The A/E is bound to his consultants with similar lines and agreements, while the Contractor team is made up of materials suppliers and subcontractors, also under contracts to the Contractor.

The A/E and the Contractor do not have contracts with one another, but are bound by the dotted line designated Third Party Obligations. These are responsibilities described the Design Contract (Owner-A/E Agreement) and the Construction Contract (Owner-Contractor Agreement) that define the relationships of the A/E and the Contractor and their behavior and duties to one another.

The Third Party Obligations are necessary to the operation of the Construction Contract, and their performance is a requirement of the Design Contract, it is important that these obligations be clear, identically aligned, and reciprocal.  Since the obligations are described to two different parties in two different contracts, those contracts must be carefully prepared to ensure that what is required in one, is required in the other.  If this is not the case, then the differing expectations of behavior between the various parties could become a stumbling block to efficiency of contract operations or even cause them to fail altogether.

For this reason, the Model Contracts prepared by various organizations, AIA, EJCDC, AGC, ConsensusDocs, and others, include models of both types of agreements,  Design and Construction Contracts, so these third party obligations are properly described without conflict or error, in identical terms.  Often, however, Owners may choose contracts prepared by other sources.

While this blog is not dispensing legal advice, and every action taken with regard to a contract should be reviewed by the individual or firm's legal counsel, it is fair to say that coordination of the requirements of the Design and Construction Contracts is an important task.  However, it is not a task for the specifier to perform.

The specifier should review the Design and Construction Contracts, (which should be done as part of developing Division 01) and advise the Owner of conflicts observed in that review, then ask for written resolution of the conflicts prepared by the Owner's counsel.  I have often seen conflicts between these two contracts, particularly with reference to the duties of the A/E, when prepared directly by an Owner's counsel.  Sometimes these contracts are prepared by different attorneys, even years apart.

An example:  A Design Contract requiring that the Architect respond to RFI's in seven (7) days, while the Construction Contract says to the Contractor that the Architect will respond to RFI's in forty-eight hours.  Here, the Contractor is given a high expectation of the Architect's responsiveness, which the the Architect's agreement does not require him to provide.  How will this discrepancy be resolved during construction administration?  Which party will give way?  Will contract change orders occur?   I have seen similar conflicts in submittal review requirements, payment processing, and many other construction administration tasks.  No value judgments are to be inferred regarding any particular level or type of obligation, simply that the two expectations should match to prevent conflicts.

Even if model contracts are used, discrepancies can still appear and it is not possible for the specifier to resolve them or determine which to put into Division 01.  This latter action is the duty of the Owner and his counsel.

These difficulties also show why it is important when specifying Division 01,  to review the identical contracts under which the work is to be performed.  We will discuss this again in detail during the Division 01 topic.

Next Topic:  Single Prime Contract

 

 

 

Specifications in the Project Life Cycle: Construction Documents

The Construction Documents Stage of the Project Life Cycle is concerned with the preparation of documents that will be used to obtain bid
prices or upon which a negotiated contract can be based.

These documents include

  • Geotechnical Data
  • Property Surveys
  • Procurement Documents
  • Construction Agreements
  • Conditions of the Contract
  • More Detailed Drawings
  • Civil, Structural and M-E-P designs
  • Designs of other disciplines
  • Full 3-Part Specifications

The 3-Part Specifications prepared in this phase are organized by MasterFormat for most types of Project Delivery Methods, but may be organized using UniFormat for Design-Build project delivery.

These specification sections are prepared using SectionFormat, hence the 3-Part terminology.

Next Post:  Construction Agreements.