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?

Comments

[Liz O'Sullivan]

Yes, I think the A/E has the right to request additional services for handling claims that are caused by owner-provided Division 1 sections that are deficient.

However, before we end up in that situation, we should implement some preventative measures.

When the architect is in the process of negotiating the contract terms with the owner, I think that the architect should include in the fee some time for reviewing Division 1 and discussing potential problems with the owner. The specifier should take the lead on reviewing Division 1. If the specifier is an outside specifications consultant (like I am), this should be spelled out in the specifier's proposal to give the architect a heads up that there could be issues that they'll need to work out with the owner. The specifier would have to review the owner's Division 1 and try to identify those issues as early as possible, but definitely before the documents go out to bid!

In the additional services portion of the owner-architect agreement, the possibility of deficient owner-provided documents should probably be addressed, too.

[Ron Geren]

I agree. If more architects make an issue of it up front, the more likley the owner will take notice and either drop the practice of providing Division 01 sections, or allowing the A/E to edit where they see deficiencies.

Regarding the latter, if the A/E is permitted to edit the sections, then they should probably have sufficient fee included, since it will probably take longer to edit that their own sections.

I have experience with an owner--a very well-liked one--that had their own Division 01 at one time, but later dropped it. Now, they just provide input of what they want to see in Division 01 to cover their specific issues. That approach is very reasonable and places the risk back on the A/E (why would an owner want to assume that risk, anyway?).

[Alan Itzkowitz]

I have some experience in dealing with Owner provided Division 0 and 1 documents/sections. As both Liz and Ron stated, the specifier has to take the lead and review the provided documents and make sure there are no conflicts between them and the technical sections. We all have master sections that reference to Div 0 and 1 and all of those have to be reviewed to be certain that they are correct.

[Ron Korzecke]

We have a few clients that insist on using their front-end for all projects and I am not a proponent of this practice. It can be problematic in correlating certain facets of the working sections with the general requirements.

Another issue with this method is how well the client's general requirements mesh with the contract between the owner and contractor, no matter what format that document may be.

Additionally, some work involves HUD or other government entities that demand the inclusion of douments that are in conflict with our specifications and create a need for more time on my part to prepare the specifications.

Currently, with the economic climate in Michigan suffering greatly, it can be diffcult to convince a client to add extra services for these items. Perhaps when things are flush, this could be negotiated but right now, I think we have to keep our proposals competitive.