Rewrite Division 01 for Contractor to...

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Author Message Chris Grimm, CSI, CCS, SCIP, LEED AP BD+C Senior Member Username: chris_grimm_ccs_scip Post Number: 307 Registered: 02-2014 Posted on Saturday, March 28, 2015 - 05:59 pm:    Anyone else been asked to rewrite terms throughout Division 01 with the common thread being that the CMc thought Contractor means their subs and/or they do not wish to be called Contractor because they are a CM? I did confirm that they are an "at risk" CM, not a CM as Adviser, and that there is only one prime construction contract, which they hold, so there are not multiple contracts going on where you might need to address them specifically in Multiple Contracts Summary. I also confirmed that the Architect is working directly with the Owner (also through another Architect, which is not unusual), so it is not Design/Build where their entity could conceivably legally administer things the way they have marked it up. It seems that they want to direct all Contractor duties to their subs through means of these revisions, most likely due to misunderstanding that they ARE the Contractor. They want Div 01 to say that they can issue a CCD, cross out where it says Architect, and a few dozen similar things. This would be a case of unlicensed practice of architecture, would it not? I don't see people having to re-write the whole Division 01 on every project that has subcontractors, to suit the CMc or GC. Doesn't a Contractor's agreement with their subs normally pass-through the duties as applicable to the subs? Pretty sure I'm not going to be able to use their changes and I will keep an annotated document explaining why, which I will give to the Architect in case they wish to send it to the Owner or to this CMc. We already tried to explain to them in the initial call to review their proposed markups, that all of these would be resolved by using the right definitions for terms and including the provision that the Contractor and Construction Manager are synonymous for a CMc project in 011000. Guess who wants to write 011000 though? From reading http://discus.4specs.com/discus/messages/2195/685.html, I am encouraged we should write our own even if it duplicates, or write as a subsection like 011010. Also they sprung this on us late this week and specs are due Monday. Dave Metzger Senior Member Username: davemetzger Post Number: 571 Registered: 07-2001 Posted on Saturday, March 28, 2015 - 06:23 pm:    The contract documents are written for the owner/contractor(CMc) agreement. What the CMc wants to call its subcontractors is the CMc's business alone, and can be spelled out in the CMc/subcontractor agreements. We have used the wording you note, "The terms 'Contractor' and 'Construction Manager' are synonymous." on multiple projects, and have never had an issue with any alleged misunderstanding of the terms "contractor" and "subcontractor". On one project the CMc tried to play the game that he was a "CM" and not a "contractor"; we showed him the synonymous sentence and the subject was not raised again. If the CMc wants to write Section 011000, you can put the synonymous sentence in the Definitions section. But I do like your idea of writing your own Summary section. J. Peter Jordan Senior Member Username: jpjordan Post Number: 809 Registered: 05-2004 Posted on Saturday, March 28, 2015 - 07:59 pm:    I have not had any pushback on this issue, but I have had projects where the CMc wrote their own instructions to sub-bidders and trade contractors. These were usually generated before the price was finalize in a public bidding situation where competitive bidding at that level was mandated. I included in Division 00. This document assigned the scope of work of the various subs. Chris Grimm, CSI, CCS, SCIP, LEED AP BD+C Senior Member Username: chris_grimm_ccs_scip Post Number: 308 Registered: 02-2014 Posted on Monday, March 30, 2015 - 10:59 am:    Good idea on definitions section Dave, it can't hurt to put it there also -- in case the CM does not include recommended wording in 011000, and because their document is published separately. Like Peter I have had an occasion where subbid scopes were correctly written, and I was happy for the jointly planned Div 00 had these scopes authored by the CMc. (It ended up that CMc wanted Div 00 to be theirs and be bound separately, fine by me.) In the case of this new project though their markups would wipe out the effectiveness of much of Division 01. Regardless of their current misunderstanding/misapplication of Division 01, it still needs to reflect and support the Owner/CMc agreement. According to their markups, they (instead of Architect) can issue Contract Modifications. I do not know if that is true since as I mentioned they are not a design/build entity with an Architect on staff or hired and they are not the Architect of Record for this project. I am not making that revision or others like it, and have alerted the Architect and annotated why for them & the CMc to review. Chris Grimm, CSI, CCS, SCIP, LEED AP BD+C Senior Member Username: chris_grimm_ccs_scip Post Number: 309 Registered: 02-2014 Posted on Monday, March 30, 2015 - 11:01 am:    I can only HOPE that what this CMc's markups were intended to mean is that they pass the Architect's CCDs and other changes along to their subs (whom they wish to call Contractors). J. Peter Jordan Senior Member Username: jpjordan Post Number: 810 Registered: 05-2004 Posted on Monday, March 30, 2015 - 11:16 am:    A lot of this depends on the General Conditions. If you are using AIA A 201, then it is pretty clear who the Contractor is and who the subcontractors are. There are numerous other ramifications. Changing Division 01 won't change the General Conditions. The Owner-Architect Agreement gives the responsibility for writing the specifications to the Architect and establishes certain responsibilities that the Architect has toward the Owner. The Contractor can't change that without the consent of both the Architect and the Owner. Division 01 is a part of the specifications which means that it is the responsibility of the Architect. While you may wish the Contractor to have some input as a courtesy, these are supposed to be the Architect's documents. According to AIA documents the Architect is responsible to assist the Owner in preparing Bidding and Contracting Requirements. In my view, many Architects overstep their responsibilities in this regard. These same people are frequently confused about the content of Contract Conditions and Division 01 which confuses it even more. You should document to the Owner where the Contractor's markups conflict with your firm's responsibilities under the design contract and with the Contact Conditions that the Owner expects to use. Whatever the case is, you should be sure that the Owner is ready to back you up. Chris Grimm, CSI, CCS, SCIP, LEED AP BD+C Senior Member Username: chris_grimm_ccs_scip Post Number: 310 Registered: 02-2014 Posted on Monday, March 30, 2015 - 12:19 pm:    Been wondering the same thing. I've asked a couple times for draft owner/contractor agreement & general conditions and whether it will be AIA, and got nada. Might as well try again. Wayne Yancey Senior Member Username: wayne_yancey Post Number: 733 Registered: 01-2008 Posted on Monday, March 30, 2015 - 02:51 pm:    Peter hit the target. I would guess about 9 out of 10 projects have a contractor retained with their own secret agreement with the Owner. Review of our Div 01 by the contractor for coordination is at the bottom of the bottom of the bottom of the pit. I simply drop Division 01 documents that have to do with $$ changing hands, temporary facilities and controls, and stick to the administrative and procedural requirements the firm has agreed to perform. Chris Grimm, CSI, CCS, SCIP, LEED AP BD+C Senior Member Username: chris_grimm_ccs_scip Post Number: 311 Registered: 02-2014 Posted on Monday, March 30, 2015 - 05:27 pm:    Earlier phase specs (not prepared by me) had retained places where MasterSpec said CM meaning a CMa. The project has a CMc, not a CMa. This CM was apparently trying to help correct it with these markups, in their own way without realizing just delete most of where it says CM. Phil Kabza Senior Member Username: phil_kabza Post Number: 555 Registered: 12-2002 Posted on Tuesday, March 31, 2015 - 09:33 am:    I agree Chris. Intent is for CMc (CM-at-Risk) to use standard A201, not the A201 CM edition. Then add a qualifying statement in 011000 SUMMARY that clarifies that wherever the specifications use the term "Contractor," the CMc is intended. To add to Peter's excellent statement above, most state licensing statutes for architects also clearly state that the architect is responsible for preparing the drawings and the specifications. Division 01 sections are specifications, and are therefore integral to the practice of architecture. I agree with Wayne that whittling the sections down to those essential to defining the administrative and procedural requirements connected to interpreting and administering the contract are most important to retain in all projects. Those are usually five sections: Submittals; Quality Requirements; Product Requirements; Execution; and Closeout Procedures. I like to prepare the Summary section as well for the convenience of the building team. Louis Medcalf, FCSI, CCS Senior Member Username: louis_medcalf Post Number: 52 Registered: 11-2010 Posted on Wednesday, April 15, 2015 - 09:39 am:    I ran into this on a project in Wisconsin about 10 years ago in which the CMc offered to write not only all of Div-01 but the supplementary conditions for A201. Those supplementary conditions included a provision that made the owner responsible for subcontractors' work! When I showed that to the client, I got full support on letting my firm write Div-01 specs.