Alternates selected during construction

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Author Message David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 714 Registered: 03-2002 Posted on Thursday, August 31, 2006 - 01:30 pm:    Currently we have a project under construction where the owner wants to select an alternate that was not accepted in the original bid. I am cautioning our CA person to not consider it. I figure that the owner and architect could be accused of manipulating the bids with alternates and getting the contractor that we want (or excluding one that we don't want). Then we go back and select the alternates that we wanted in the first place. It just looks too suspicious. The owner should have selected the alternates he wanted shortly after bid opening and not during construction. Has anyone else experienced this issue? Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 453 Registered: 02-2003 Posted on Thursday, August 31, 2006 - 01:38 pm:    No experience, but instead of "taking the alternate" [old news} why not merely make it new work and in the form of a Change Order requested by the Owner? Perhaps a talk or negotiations with the Contractor is in order since there may be ramifications involved that would have been accounted for in the original alternate, but now have been obviated by not accepting the alternate. Ronald L. Geren, RA, CSI, CCS, CCCA, MAI Senior Member Username: specman Post Number: 320 Registered: 03-2003 Posted on Thursday, August 31, 2006 - 02:01 pm:    We've done it, and on a public bid, too. Like Ralph states, make it a change order to the contract. I understand your concern, but if it was an issue that the Owner didn't have the funding at the time of bid open, but later was authorized an increase, then there's nothing that anyone could have done. It's kind of like a losing bidder coming in after construction is complete and filing a complaint that he could have done the construction with all the change orders for less cost, so he should have been awarded the contract. You can't anticipate everything at bid time; applies to owners and bidders. The only recourse that a bidder has is if the bidder has definitive proof that the Owner withheld funds in order to manipulate the alternates so a specific contractor was awarded the contract, and then "amazingly found additional money" to pay for the other altenates after award of the contract. For public entities, this would be difficult to do since approval of funds for projects are usually through a public process. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 715 Registered: 03-2002 Posted on Thursday, August 31, 2006 - 04:33 pm:    When we started construction on the job the contractor wanted to lay down some ATB in order to keep the site from becoming a mud pit. The contractor even went so far as to split the cost with us for the ATB. We did not install ATB because ATB was an alternate and we were afraid of a bid protest. (In hind site we should have taken the ATB. The site became a mosh pit sans rock band.) Now the owner wants to take an alternate on a large folding panel partition door yet there is not talk of bid protests. We are also asking the contractor to reprice it instead of taking the price indicated in the bid form. I don't get it. John Bunzick, CCS, CCCA Senior Member Username: bunzick Post Number: 572 Registered: 03-2002 Posted on Tuesday, September 05, 2006 - 09:36 am:    Assuming this is publically funded, there is only one correct answer to this, and that is in the legislation, and administrative rulings of the oversight agency, of the state (or local) project's jurisdiction. In Massachusetts, it is plainly illegal to accept the alternate later on. This is a bid process manipulation technique large enough to drive a busload of lawyers through. If the text of the law is not explicit, there may be either court cases, or administrative adjudicative rulings that make this determination. The owner's lawyer ought to be the one determining whether this can be done, and I'd be surprised if it's okay. Tom Good architect CDT, SCIP, www.VGBN.org Member Username: tom_good Post Number: 3 Registered: 11-2006 Posted on Saturday, April 14, 2007 - 09:33 am:    I guess this would not apply to public jobs in Massachusetts, but I always ask as post bid information in the instructions to Bidders "Within 4 calendar days after notification of selection for the award of a Contract and before execution of a contract, the Bidder shall state in writing the last possible date to include Bid Alternates by Change Order such that the Contract Sum will be adjusted by the amount stated on the Bid Form and that the Contract Time will not be extended. Bid Alternates which are not accepted for inclusion in the Contract Sum at execution of the Agreement for the Work will be deferred for decision by this date." I then add this to Article 4 of the AIA A101 Agreement: "4.2 The Contract Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: ......... Up to the deferral date and for a change in the Contract Sum indicated below for each Alternate, Alternates may be included by Change Order without a change in the Contract Time:" and then the unaccepted alternates are listed. This gives the Owner the option of selecting Alternates until later. I will have to remind myself that this may not be appripriate for all projects due to bidding regulations. However, in 20 years of practice, I have never had a bidder dispute.