specsandcodes

Owner-Provided Division 01

I have come across several projects where my client’s client (i.e. the owner) has provided their own version of Division 01 to be included in the project manual rather than using my masters.  Is this a bad thing?  The best answer I can provide is:  it depends.

Division 01 does two things for the construction documents:

1. It  expands upon the requirements in the General Conditions; and,
2. It eliminates the need to repeat common requirements in each of the sections in Divisions 02 through 49.

Regarding the first, if the owner has their own version of general conditions that vary from the standard AIA or EJCDC general conditions, then owner-developed Division 01 may benefit the A/E by minimizing the A/E’s need to modify their own Division 01 to conform to the owner’s general conditions. 

However, if owner-provided Division 01 sections are used, the A/E must expect that the procedures specified may not conform to the firm’s standard methods.  For example, the A/E may have certain methods for handling submittals, such as format and review times—the owner-provided section on submittals may specify a different format and review times that are shorter.  In other words, the owner may be dictating how the A/E performs its construction contract administration services. 

The A/E should review the owner’s general conditions and Division 01 sections to see if there are any conflicts between the A/E’s third-party obligations in those documents and the A/E’s contract with the owner.  The A/E should not provide more services than what is indicated in the A/E-owner agreement.  Additionally, the A/E should look at the quality of the sections provided.  I have seen some good owner-provided sections and I have seen some bad ones—really bad ones.  If the A/E is prohibited from editing the sections, this may raise a caution flag for the A/E.

Whether the sections are well-prepared or not, it may be advisable that an A/E firm seek the advice of their attorney and liability insurer to determine if there are any potential risks using owner-provided Division 01 sections.  Design professionals that seal specifications that were not prepared by them or under their direct supervision may be violating state licensing laws.  If that is the case, then A/E’s should clearly identify those documents for which they are sealing so as not to assume the liability for errors, omissions, and ambiguities that may exist in the owner’s Division 01 sections.

So, my question to you is this:  Do you think an A/E has the right to request additional services for handling claims based solely on the content of owner-provided Division 01 sections? 

To make it easier, let’s put some objectivity to the question.  Let’s assume the owner’s section on submittals did not stipulate the timeframe in which the A/E has to review submittals and the contractor submitted a claim stating that the A/E’s review time of seven days on one particular submittal was not of “reasonable promptness” according to the general conditions and delayed the project.  The A/E, if they had prepared Division 01, would have allowed the A/E ten days to review a submittal and would have required the contractor to include additional days for a resubmittal, if not approved the first time.  Had the A/E been able to use its standard section, the issue could easily have been resolved.  Now the A/E has to evaluate this claim as well as defend his review of the submittal in question.  Should the A/E be responsible to cover the cost of this review?

Construction Administration...or is it?

I see the term used everywhere: on websites, marketing materials, correspondence, and even contracts.  The term I’m referring to is “construction administration.”  A/Es frequently use this term to describe their services during the construction phase of a project; but on closer examination, they could be identifying scope of services beyond what they are insured for and licensed to provide.

To clarify, let’s analyze what “construction administration” means. 

First, let’s take a look at the word “administration.”  Open just about any dictionary and you’ll find the word “management” included in the definition.  Even the dictionary I keep on my desk (Webster’s II New Riverside Dictionary, 1984) uses “management” as a single word definition for “administration.”  Second, the word “construction” focuses on the act of constructing rather than designing.  Therefore, it doesn’t take much of a leap to go from “construction administration” to “construction management”—i.e. managing the construction of a building. 

So, for those A/Es out there that refer to their construction phase services as “construction administration,” are you really providing “construction management” services?  Probably not, but for liability purposes you probably don’t want that distinction clouding the intent of the services you were expecting to provide under your owner-A/E agreement.

Review any of the AIA owner-architect agreements, past or present—AIA Documents B141-1997 or B101-2007, for example—and you’ll find that there is no mention of “construction administration.”  Even the ConsensusDOCS 240 owner-design professional agreement doesn’t use the term; they just leave it at “construction phase services.”  Since the AIA Document B101-2007 is the most current, we’ll take a closer look at that document.  In Section 3.6.1.1 under “Construction Phase Services,” it states the “Architect shall provide administration of the Contract between the Owner and the Contractor” (emphasis added). 

So the administration the architect provides is not of the construction itself, but of the contract for construction.  Therefore, the construction phase services an A/E provides is more appropriately termed “contract administration.”  Further, AIA Document B201-2007, which should accompany the owner-architect agreement, is titled “Standard Form of Architect’s Services: Design and Construction Contract Administration” (emphasis added).  Although it includes the word “construction,” the title still connects it with the contract, thereby making it very specific to construction contracts.

Now, some of you may be thinking that I’m playing with semantics, and there is really no concern that an A/E provides “construction administration.”  However, to support my contention, when I attended a seminar by one of the largest professional liability insurers in the country, they specifically mentioned this “semantic” issue.  If it were not a problem, then I would doubt they’d be making a point of the difference in presentations for design professionals across the country.  An attorney's business is in the words used in documents and they'll try to use those words to defend their client, so why give them the ammunition?

There is this growing segment of construction industry professionals that call themselves “construction managers,” or CMs, which have their own professional organization called the Construction Management Association of America (CMAA).  The CMAA identifies two types of CM services: Agency CM and At-Risk CM.  For At-Risk CM, commonly referred to as CMAR, the CM is the constructor/contractor and is fully responsible for the outcome of the project—thus, the “at risk” element.  Agency CM—AIA calls it “CM as Advisor”—provides services as the owner’s representative or agent that parallel many of the A/E’s contract administration services.  However, many of the other special services provided by Agency CM go well beyond standard A/E services and clearly fall within the realm of managing or administering construction activities, such as involvement in the contractor’s safety program.  It is these special services that A/Es should avoid unless they are specifically licensed or insured to do so.

The bottom line is that A/Es provide construction contract administration—that is the way standard AIA owner-architect agreements describe A/E services during the construction phase.  A/Es should contact their liability insurers to see if using any other term for describing their construction phase services, either in contracts or other forms of communication (e.g. websites, marketing materials, etc.) is outside their coverage or is open for interpretation that may be difficult to defend.