Specification dilemma - seeking guida...

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Author Message Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 95 Registered: 05-2003 Posted on Tuesday, April 19, 2005 - 03:23 pm:    We prepared specifications for a condominium project based on standard CSI 3part, with masterpsec as our base spec. After completing the specs and prior to start of construction the developer has retained a Constr Defect Mitigation Service whose number one recommendation is to delete the specs in their entirety - Arch has refused so their 2nd recommendation is that we the specwriter delete all reference in the specifications to standards, i.e.ASTM, ANSI, etc. The contention of the Defect Mitigation consultant is that the standards cited are impossible to meet for work in Florida due to our unique climate, further they contend that the GC and subs do not have the standards available to them on the job site so how can they perform their services based on these standards. The developer will grant us a hold harmless when we agree to rewrite the specs (at an agreed upon additional service) however we are uncomfortable with the thought of reinventing the wheel esp. on a condominium project - a litigation nightmare to begin with. Any experienced specwriters have any thoughts, recommendations, guidance - this is aprivate sector project, so the options are limited. Robert E. Woodburn Senior Member Username: bwoodburn Post Number: 18 Registered: 01-2005 Posted on Tuesday, April 19, 2005 - 03:51 pm:    There's an easy solution to one contention: Include a provision in each section that the Contractor keep one copy of each reference standard on the site at all times for the use of all involved, and require that this standards library be turned over to the Owner at the end of the job along with other project record documents. The GSA has used a similar requirement in the past, at least for some work (for example, an embassy). One has to marvel at the CDM Service's chutzpa, though...it's a truly radical approach to the elimination of defects, in the sense that it strikes at the very root of the problem: Without any standards, how could there even BE any defects? Anonymous   Posted on Tuesday, April 19, 2005 - 04:11 pm:    We once had a developer who told us to delete the reinforcing mesh in the floor slabs for a 20-story condo. Developers are full of Luney-Tunes. Sounds like you should write a line in the documents to delete the Constr. Defect Mitigation Service. Richard Howard, AIA CSI CCS Senior Member Username: rick_howard Post Number: 46 Registered: 07-2003 Posted on Tuesday, April 19, 2005 - 04:31 pm:    Just when I think I have heard it all, something comes along to amaze me. You realize that many of those same standards referenced in Masterspec are also referenced in the building code. Are they going to suggest you not to follow that? At a minimum, I would want to keep those standards in the specs to demonstrate compliance with the code. The whole idea of using industry-recognized standards is to make specs consistent from job to job and limit the words required to ensure the desired results. I would be worried about having subcontractors who don't know their own industry's standards. If you proceed on this path, I hope you plan to read the standards you delete to know what you have taken out of your specs. Masterspec and other the master specification systems rely on those references and they generally don't repeat all the useful criteria. This also raises a "standard of care" issue that your E&O insurer might want to weigh in on. He won't charge you to talk about it. He may help you figure out whether the "hold harmless" clause will protect you from the future building owners. My own experience is that the standards have covered my backside on many occasions where there was a question about the quality of the work. Anonymous   Posted on Tuesday, April 19, 2005 - 08:16 pm:    Once again, I recall what one of my former bosses would say in a moment of frustration - "If I had it to do all over again, I'd sell shoes." IIRC, MasterSpec's Division 1 either requires the Contractor to have copies of the applicable standards on site, or request copies of same from the Architect. With so many standards available on the Web now, there's just no excuse for not having these available on the job site. Excellent point from Mr. Howard re the E&O insurance issue. Some carriers offer A/E's a discount on their insurance for using a commercially available guide specification system like MasterSpec; I don't think they'd go for what this so-called "Service" is suggesting. If it were me, I'd flat tell them I was not deleting the specs because my insurance people would not allow it. I did public projects for 5 years, with some of the dumbest so-called "Construction Managers" I ever came across, and I thought I had heard it all, but this takes the prize. Anonymous   Posted on Wednesday, April 20, 2005 - 01:38 am:    The Owners advisor understands well that you will have no construction claims if you do not enforce the contract. On the other hand this action creates a situation where you will be unable to establish that you followed the standard of care when the home owners association sues the Architect and you. I recommend you discuss this with your insurance carrier and your attorney and if the Owner insists, consider walking away from this project. Anonymous   Posted on Wednesday, April 20, 2005 - 05:08 pm:    Are you sure that the Constr Defect Mitigation Service is not a wholly owned subsidiary of a law firm? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 96 Registered: 05-2003 Posted on Wednesday, April 20, 2005 - 08:02 pm:    Lawyers are always involved...I am meeting with the head of this Constr Defect Mitigation service on Friday to discuss their concerns regarding the specifications - this gentleman is a former chief building official in S. Florida, so that should be interesting...I am certainly open to their recommendations if it helps the architect avoid litigation, but I am not about to jeopardize the integrity of the specifications nor my reputation just to apease the Developer (who on this project is also the Architect). Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 57 Registered: 10-2002 Posted on Thursday, April 21, 2005 - 02:11 am:    Another alternative is to rewrite the specification as a straight proprietary document. List 1, 2 or 3 acceptable products/systems and than accept no substitutions. The inclusion of reference standards are primarily tools used to enforce the contractor to provide the products/systems you want to get anyway. As previously stated, one can not get away from code imposed standards. Just be sure that your project manual clearly states that the project must comply with all applicable codes and regulations [most general conditions cover this]. By keeping a tight rein on who your mfrs are, and maybe even who the installers are, the project should turn out OK. Phil Kabza Senior Member Username: phil_kabza Post Number: 101 Registered: 12-2002 Posted on Thursday, April 21, 2005 - 09:07 am:    I'd go back and look at what your design services agreement says about the nature of your professional services and deliverables. There is a point at which the concern should be raised with your legal counsel that this outside owner's consultant is interfering with your firm's client relationship and your ability to deliver your contracted services. Obviously, the consultant's leadership is aware of the architect's standard of practice and the implications of their recommendations. It's hard to understand why a knowledgeable owner's consultant would make such sweeping recommendations with such potential for causing the owner harm. J. Peter Jordan Senior Member Username: jpjordan Post Number: 60 Registered: 05-2004 Posted on Monday, April 25, 2005 - 10:44 am:    As a practical matter, converting all of the requirements to "proprietary" specs may be impractical. Would you really want to restrict the use of cement or reinforcing steel to a single manufacturer? How about clear float (annealed or tempered) glass? What about sand (for concrete or mortar)? Or steel tube or schedule 40 pipe? Or wood blocking (maybe the treatment)? This is one of those ideas that is so outlandish and absurd that it is difficult to argue against. Since a lot of contractors don't have specs on the jobsite (even when it is clearly required), that should be reason to do without them. I would ask this "consultant" whether he is willing to take on the E&O liability himself, then have your carrier draft up a document for him to sign. If he is willing to sign it, you should see about having him committed. J. Peter Jordan Senior Member Username: jpjordan Post Number: 61 Registered: 05-2004 Posted on Tuesday, April 26, 2005 - 09:35 am:    In thinking further about this situation, I would offer the observation that most (certainly not all) standards cover materials and fabrication, stuff that happens before the product arrives at the jobsite. These can be reviewed during the submittal phase. There are, however, very important standards that apply to erection/application/installation activities (see ASTMs for metal framing and suspended ceiling work and TCAs/ANSIs for tiling) as well as field quality control (concrete testing and earthwork compaction). I refuse to believe that anyone who has anything to do with placing concrete is totally unfamiliar with slump tests and taking concrete cylinders. And if the tiling subcontractor is unfamiliar with TCA standards, he should be thrown off the jobsite. I would love to have a report on your meeting. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 97 Registered: 05-2003 Posted on Tuesday, April 26, 2005 - 10:46 am:    JP - wow what a meeting, still trying to figure out myself what is going on - basically the Developer is in love with the CDMS while the architect and specwriter are not - guess who wins here - so we first went thru each spec section of the project and put together a matrix of standards used - this way we can determine quickly what is now in job and how we are going to appease the Developer. The CDMS would like us to do the following: Delete all Div 1 sections, delete any contractual verbage in Part 1; and delete all references to standards in Part 3. They claim that the contract between Owner and Contractor is not discoverable and therefore they can hide all the contractual verbage from the specs there - this they say is based on their years of experience with similar litigation (i.e. high rise condominium work). The attorney we have spoken to says this is preposterous, that the contract is discoverable and forms the basis for establishing the contractual relationship between parts during the trial - well that said, Developer still wins, cause Architect is not willing to challenge the CDMS on this one. As far as taking the standards out of part 3 this gets to be complicated, the CDMS would like us to rewrite each spec section by paraphasing the specific portions of the standard that apply to the spec section - paraphase - how to you paraphase the TCA Manual, or ASTM C926 for stucco, among too many others. We have suggested adding a requirement in submittals -if we are allowed to keep it in the section - for the submittal package to include the standards that the manuf recommends in their installation instructions - the parties are considering that option. Meanwhile my client, the Architect has asked us to draw up an additional services agreement with the estimated not to exceed upset fee - not an easy task. What makes this even more crazy is that normally we would salivate at the chance to provide this much additional services and be paid for it - unfornately our track record on AS agreements has been that we always tend to under estimate our fee, and get stuck with providing more time in order to maintain our reputation - also fortunately we are extremely busy, so it is not like we have the time to do all this additional work, and finally, even if we do underestimate or we have to negotiate numbers, we are typically able to reuse the resulting work or morph it into other projects for other clients - here however, we took a poll of some of our clients, who in a nutshell think we are nuts and have no desire to reinvent the wheel. Let's see, past two nights working on this mess, been to bed by 4am, up by 9am (get to sleep late cause our office is downstairs in our home) its gonna be alot more long nights until this is done - oh yes and the kicker is that the structural, MEP, waterproofing, and fenetstration sections have separate consultants who must do same and so far are resisting - and would like our guidance and input in revising their specs - its gonna be another long night. Did we mention client wants it in a week and we estimate so far at least three...more of this saga to come - keep coming with the suggestions as the dilemma continues. David R. Combs, CSI, CCS, CCCA Senior Member Username: davidcombs Post Number: 37 Registered: 08-2004 Posted on Tuesday, April 26, 2005 - 10:58 am:    JL: Another thought: Walk away (but respecfully). What harm is there in declining to make the requested changes, on the basis that the CDMS has no authority to dictate how the design documents are prepared? They are not the design professional of record, and have ZERO liability to assume if something goes wrong in the event the otherwise incorporated referenced standard would have saved the day or affected the outcome. The Owner is always free to delete certain provisions by Change Order (in which case THEY would be assuming any liability). Sounds like they may be looking for a scapegoat. You reference ASTM and ANSI standards. What about ACI (is there concrete work?), SMACNA and NRCA (is there roofing and flashing work?), BHMA (is there door hardware?), and GA (is there drywall?). And what about UL / FM (rated partitions, doors, firestopping, etc.)? NFPA (is the building sprinklered?)? The purpose of referencing the [referenced] standard is to avoid having to rewrite it verbatim in the specifications. And reference standards are mere MINIMUMS, not gold-plating. Is the Owner or CDMS suggesting or implying, by their request, that you are to now write all that verbiage into your specs? Also remind the Owner that Condominium Associations are very adept at engaging attorneys to represent them and perfoming due diligence surveys to zealously seek out defects as a way of negotiating lower purchase prices for their property. So if you do revise the specs, and have some sort of waiver or release, please include a provision that imdemnifies you in the event faulty workmanship is traced back to a specification subsequently weakened by information deleted at the request / direction of the Owner or CDMS. Good luck. Robert E. Woodburn Senior Member Username: bwoodburn Post Number: 19 Registered: 01-2005 Posted on Tuesday, April 26, 2005 - 11:09 am:    "The Contract Documents form the Contract for Construction (A201, 1.1.2)." They may think "they can hide all the contractual verbage from the specs there" (in the "Contract"), but in reality, it's ALL the Contract. You can move, but you can't hide, that contractual verbiage. Run - don't walk - away from this one... Marc C Chavez Senior Member Username: mchavez Post Number: 97 Registered: 07-2002 Posted on Tuesday, April 26, 2005 - 11:15 am:    Oh My goodness. Mr. Combs is correct. Quietly leave the room and never come back. These people are certifiable! I'm serious. Send a letter (reviewed by your attorney) outlining your very serious concerns and terminate the relationship. If I had to walk away from lots of money on this one I'd do it. In fact you may talk to your lawyer about breach of contract with the Owner (I'm not sure about this part). I think that they are asking you to do VERY BAD things. Ronald L. Geren, RA, CSI, CCS, CCCA Senior Member Username: specman Post Number: 126 Registered: 03-2003 Posted on Tuesday, April 26, 2005 - 11:55 am:    If it's just you doing the work, I'd give a proposal for 168 hours (seven 24-hour days) at 200 or 300 percent of your standard hourly rate. If they accept, you know their nuts. Jo Drummond, FCSI Senior Member Username: jo_drummond Post Number: 8 Registered: 01-2005 Posted on Tuesday, April 26, 2005 - 12:01 pm:    What an interesting discussion! This makes the spec. forum worthwhile all by itself! Thank you, Colin, and thank you, Jerome, for posing the question and sharing your experiences with us. In 20 plus years as a spec. consultant, I have been asked many times to do specs. for condos. I have always turned them down. Now I know why. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 98 Registered: 05-2003 Posted on Tuesday, April 26, 2005 - 12:30 pm:    I would agree that writing specs for condominiums is sometimes a nightmare, but having written such specs for over a 100 condominium projects over the past 8 years, and not having been pulled into litigation on any of them - knock on wood - I must admit that the work has allowed our firm to grow and prosper - this is the first job where we have had to deal this this BS and probably will not be the last. Unfortunately walking away from this job will piss off the Architect, my client, and may cost us dearly as we are preparing specs for the same firm for several other condo and hotel-condo projects - this client does pay their bills, are usually very respectful of our role and has provided us the opportunity to work on some challenging projects - however there is something to be said about maintaining ones sanity - so right now we are considering allowing the Division 1 and part one changes, as long as we receive a hold harmless from the architect and the architect is made privy to the contarct to ascertain that the verbage deleted from the specs has made its way into the contract for construction. In regards to part 3, we do not want any part in this endeavor, the $$$ are not worth it so we are proposing that the specs be revised to rely on manufacturer's written instructions in lieu of an explanation of installation and testing - for most of the critical items - moisture control, fenetrations, and cladding, the respective warrantees are tied to how the manufacturer wants the product installed anyway, so why not cop out and place the burden back on the manufacturer - not my style, but this is an unusual if not mashugana (yiddish for totally nuts) situation. Any one have any thoughts on my thoughts? J. Peter Jordan Senior Member Username: jpjordan Post Number: 63 Registered: 05-2004 Posted on Tuesday, April 26, 2005 - 01:20 pm:    The "CDMS" (Certified Damage Magnification Specialist"?) should not be proving legal advice unless he is an attorney. It should also not be providing design advice (the specifications are part of the design) unless they are licensed/registered to practice in its particular discipline. I would really like to check this guy out. My suspicion is that he really does not have the credentials or the experience to make the recommendations he has made. If your client is really one you want to keep, I would suggest having a meeting with him w/o the CDMS. You should be prepared and include your professional opinion about these recommendations. It is my view that the credentials of the CDMS to make such recommendations should be an item for discussion. I would also believe that you should discuss the liability (liability accepted by your client and by you) that may stem from accepting these recommendations. You may also want to pay for a written opinion from your attorney. You may want to urge him to discuss this with his attorney. I have also been instructed in the past to put into the specs the substance of the requirements incorporated by reference. I have ignored this instruction. It creates lots more work, multiplies the liability (imagine that paragraph you are trying write at 11:00PM when you fail to include the word "not"), and is absurd on the face of it. If your client is experienced, you may find that he is having some of the same thoughts you are. Jo Drummond, FCSI Senior Member Username: jo_drummond Post Number: 9 Registered: 01-2005 Posted on Tuesday, April 26, 2005 - 02:54 pm:    Let's say the specs. are changed to reflect the instructions of the CDMS: No Part 1, modified Part 3 to eliminate standards and weakly say someting about manufacturer's recommendations or warranties or something. (What do you do about all the stuff that the manufacturer's recommendations include which says someone else has to do, i.e. elevators, floor prep. for finishes, etc.?) Now let's fast forward to 2 years after the project is completed. The balcony railings are loose and the balcony traffic cover is leaking into some of the units. The leaks have caused extensive air conditioning damage. A claim is made by a third party owner, not the developer and not the builder, which goes to arbitration? litigation? whatever, and the specs. become part of the evidence. If another spec. consultant, say a highly reputed one, is asked to testify as to whether this document is "standard of care", or the way he usually does it, or whatever. What will happen when he says his specs. contain all 3 parts, his specs contain details for installation of materials, coordination of work, etc? The third party owner can sue anyone he wants to, and it seems to me it would be difficult for the architect, the developer, the spec. writer, or anyone to prove standard of care. The architect and developer could prove that "they made me do it", (I presume you are documenting all conversations), which might help. But it looks like an invitation for disaster to me. Robert E. Woodburn Senior Member Username: bwoodburn Post Number: 20 Registered: 01-2005 Posted on Tuesday, April 26, 2005 - 05:35 pm:    Has the CDMS presented any kind of case that is even plausible, i.e., backed up by evidence, case histories, etc., to support its radically unorthodox approach? What reasoning is this based on? If the CDMS were a lawyer, I might assume this is based on some hairbrained "legal theory" that he (I can't imagine a woman proposing such a wild and reckless idea) wants to test in court... The "standard of care" rules, and this seems to be...its extreme opposite. Doug Frank FCSI CCS Senior Member Username: doug_frank_ccs Post Number: 100 Registered: 06-2002 Posted on Wednesday, April 27, 2005 - 08:45 am:    This whole deal is ludicrous. Are you sure you’re not on Candid Camera? How can your client, the Architect, acquiesce to the deletion of all Division 1 sections? He’s not a party to the Contract for Construction established by the Contract Documents and cannot be bound by it. I assume he has a Contract with the Owner that contains obligations to perform work like CA Services? Without Division 1 sections, how can an Architect enforce his own contractual obligations? I’d be amazed if any Structural Engineer would agree to the deletion of applicable ACI, AWI, AISC, ASTM, and other standards. If they do, I’d like to know who it is so I can be sure to not ever him them for our work. Regarding the request to delete reference to all Standards, what happens when a manufacturer's written recommendations include one or more of those "Standards" that you're being asked to delete? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 99 Registered: 05-2003 Posted on Wednesday, April 27, 2005 - 10:08 am:    Candid Camera no, Twilight Zone yes! Still waiting to hear what structural engineer will be willing to do - they have much more weight then we do - if they go along with this mushugana process - than maybe we will all be certifiable when we are done. As of yet we are holding out for a miracle, but we would need to make a decision this week - so any other comments on our dilemma are welcome and needed so that we can complete out written response. Anonymous   Posted on Wednesday, April 27, 2005 - 01:05 am:    Trying to convince the developer that he should be concerned about litigation in 10 years probably will not resonate. Typically the developer forms a seperate corporation to build each project and when he has sold the condos and gotten his money out he closes the corporation. Thus when the litigation occurs he has no liability exposure. In addition if the Architect is not willing to walk maybe you do not want him as a client. Anonymous   Posted on Wednesday, April 27, 2005 - 10:29 am:    Wow-this is amazing! I have some questions/comments, but first, let me understand the relationship: First, I take it you are the consulting specifier, not an in-house employee of the Architect-is that correct? Second, I think that the Architect and Structural Engineer should immediately consult their counsel and liability insurance providers, if they haven't done so already. I also like the idea of the Architect meeting privately with the Owner without their architect attack dog-excuse me, the Consultant present. This may be the most effective way to resolve this. In my opinion, this "Consultant" has interfered (or will, if the team agrees to their demands) so greatly with the A/E's instrument of service that it could be argued these unlicensed persons are engaging in the practice of architecture, and a complaint should be filed with your state's licensing board. Has the Architect gotten a "second opinion" from another CM or Contractor who does peer review of documents? The "Consultant's" response to another opinion could open the Owner's eyes. Finally, I know you hate to lose a client, but you may need to have a serious conversation with this Architect. If they agree to this, it may not be somebody you want to work for, as they are in effect agreeing to a devaluation of what you do. BTW, I am not trying to hide by posting "anonymous"-I just started reading this and got so caught up in it I had to respond. Helaine K. Robinson CCS Senior Member Username: hollyrob Post Number: 131 Registered: 07-2003 Posted on Wednesday, April 27, 2005 - 12:03 pm:    JJL: Sounds as if you are involved in mishegoss with meshuggeners! Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 100 Registered: 05-2003 Posted on Wednesday, April 27, 2005 - 03:39 pm:    Well the plot thickens, during a conference call with Architect (my client), Structural Engineer, and myself, I advised that terminating our agreement was being considered - interesting Architect liked that idea, hmmmmm...waiting for PE to make a decision - they are big boys on the block, curious to see how they respond. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 101 Registered: 05-2003 Posted on Wednesday, April 27, 2005 - 03:43 pm:    Anonymous Part of the problem with going directly to the Owner is that on this project, the Architect is a major partner in the development and is indeed the Owner - ya think Oprah would be interested in this story...hmmm, maybe Morry? Sorry, humor is the only thing keeping me going now - this dilemma is too absurd to deal with, not a drinking man, but before the end of this bizarre week, I may become one. Anonymous   Posted on Wednesday, April 27, 2005 - 01:26 pm:    As a specifications consultant, with the architect as your client, what liability could you possibly have in providing specifications as directed to do so by your client? If your contract is with the architect, not the Owner, not the developer, you are responsible only to the architect. I see no reason why you would have any objection to making the requested changes since you have no liability. It may be a really bad idea, but that isn't your problem. Are you required to be a registered architect to prepare the specs? Are you required to stamp the specs for the project? Doubtful. It is the architect that assumes full liability for this. If it makes you feel better, get a letter of indemnification from your client, make the changes, and sit back to see what happens next. anon Curt Norton, CSI, CCS Senior Member Username: curtn Post Number: 84 Registered: 06-2002 Posted on Wednesday, April 27, 2005 - 04:26 pm:    If your client (the architect) goes out of business, the hold harmless agreement won't be of any value... To me, it's not a matter of who directed you to do it, being paid to do the work, or having a hold harmless agreement. Its just the wrong thing to do and I wouldn't want any part of it. I doubt your client would stop doing business with you because of it. If he did, you're better off without him. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 102 Registered: 05-2003 Posted on Wednesday, April 27, 2005 - 04:30 pm:    Anon Bingo this is one of the reasons why we do all this condo work, however my problem is how this will effect my reputation - word travels fast in this business, and although making the changes with a hold harmless would seem to be a valid solution, it may not be the solution best for my firm or for me - decisions, decisions... BTW - thanks for your responses and to all who have responded - I'll be printing a copy, rereading them all, and formulating my written response tomorrow afternoon - still time for you last minute laggards to dive in with your opinions. Lynn Javoroski Senior Member Username: lynn_javoroski Post Number: 201 Registered: 07-2002 Posted on Wednesday, April 27, 2005 - 04:53 pm:    There is no way that I can add anything of substance to this discussion. It's all been said: don't do it. Whether or not you have liability, you will be named in the suit, and it will damage your reputation and cost you dearly. By virtue of your asking the original question, you admitted that you are uncomfortable with the idea. Follow your original instinct. It's right. Margaret G. Chewning CSI CCS Senior Member Username: presbspec Post Number: 49 Registered: 01-2003 Posted on Wednesday, April 27, 2005 - 04:58 pm:    Jerry, We met at the SCIP meeting last week and you seem to be a sensible person. I agree with Lynn, go with your instinct, this is a bucket of hot coals that will burn everyone who hangs on to it. Let it go! Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 81 Registered: 10-2003 Posted on Wednesday, April 27, 2005 - 05:20 pm:    I agree with Lynn that there is nothing more to be added to this discussion except my vote for walking away! I'm not sure where the concept of a Construction Defect Mitigation Service came from but let's hope it dies a qick death and doesn't gain a foothold as did Construction Mismanagers, I'm sorry, I meant Constructon Managers. But then that's a subject for another day! Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 103 Registered: 05-2003 Posted on Wednesday, April 27, 2005 - 05:27 pm:    Margaret Must be someone impersonating me, unable to attend the SCIP meeting, although it was my intention to do so - just too damn busy to leave these days. We have a 'new' building code in Florida effective July 1 and it seems everyone is trying to get their jobs submitted for permit prior to that date - I do forsee sunning on a beach somewhere or enjoying the company of family in July though, after the dust settles. I do think that I am leaning toward just saying no, and take the termination clause in our agreement and see what happens. Could be an interesting week next week. Hmmm, I wonder if my client is reading this - something to be said about posting anon. David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 440 Registered: 03-2002 Posted on Wednesday, April 27, 2005 - 05:33 pm:    I agree with most of you and would have walked from the project. Whenever someone wants me to do something convoluted and complicated I get very suspicious. Especially if it has never been done before. What do they have up there sleeve? What goes through my mind while reading this thread is that Jerome is being set up to to take a fall. The only reasons I can see to eliminate industry wide accepted standards is if the products are not specified in the project or not applicable to the area (for example: Woodworking Institute of California). Jerome - Don't worry about losing face from walking away. You would look much worse in court. "Know when to walk away.....know when to run." RUN! Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 82 Registered: 10-2003 Posted on Wednesday, April 27, 2005 - 05:41 pm:    Since this sounds like a major gamble here, I'm reminded of the words of a Kenny Rogers song entitiled "The Gambler"...."know when to hold them, know when to fold them"... Ron Beard CCS Senior Member Username: rm_beard_ccs Post Number: 58 Registered: 10-2002 Posted on Wednesday, April 27, 2005 - 05:44 pm:    <<my problem is how this will effect my reputation>> Interesting question: damaged reputation vs. still having your sanity and money; OR, good reputation vs no money and institutionalized [maybe even divorced]. Besides, when people find out the details of the situation, they will realize how smart your are for your stand. Ron PS: I passed this thread along to one of the country’s leading construction attorneys [many in this group know him]. I am hoping he will respond. If he doesn’t, it may be because he hurt himself when he fell off his chair from laughing. Lynn Javoroski Senior Member Username: lynn_javoroski Post Number: 202 Registered: 07-2002 Posted on Wednesday, April 27, 2005 - 05:47 pm:    The Gambler lyrics, in part, are: "You got to know when to hold ’em, know when to fold ’em, Know when to walk away and know when to run." That's why you were reminded of the song, Richard... I would love to see an attorneys response... Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 83 Registered: 10-2003 Posted on Wednesday, April 27, 2005 - 05:50 pm:    I knew there was something familiar about it. I would like to see the attorney's response too! I showed this thread to our own in-house counsel who is also an architect. We had a good laugh over it too! Doug Brinley AIA CSI CDT Senior Member Username: dbrinley Post Number: 31 Registered: 12-2002 Posted on Wednesday, April 27, 2005 - 06:01 pm:    An element of this that doesn't get much play is that the standard of care evolves, it's not a static concept. Admittedly, the advisors appear to be making foolish, uneducated 'leaps' that exceed a rational interpretation of standard of care. But I know Seattle developers that are no less creative than these folks. It seems obvious the advisors act (and compel others to act) without a disregard for those who might be harmed, and that to me seems the most dangerous of all - even if one party or another 'idemnifies' you - you know better. Obviously you're being careful. You should know too that your decisions have an impact for the rest of us. It's remarkable you are getting this much support - AIA could learn from this forum. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 104 Registered: 05-2003 Posted on Wednesday, April 27, 2005 - 06:07 pm:    Thanks Colin - this forum has certainly helped me look at all the options available in regards to my current specification dilemma, as it has in the past. I have turned many of my colleagues on to this forum - its amazing how few know of its existence - but it is the only place I know online where the views of so many can be shared - still wondering though if my client is reading this.... probably not!!! David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 441 Registered: 03-2002 Posted on Wednesday, April 27, 2005 - 06:24 pm:    Jerome, I respect people that stand up for themselves and say "no". Being a weird situation, I don't think the architect will hold it against you for having the sense to bail. In fact when the architect lands in court he may think highly of you for getting out when you did...and wish he had done the same. Anyhow, nobody respects a "spec whore". ;-) Richard L. Hird P.E. CCS Senior Member Username: dick_hird Post Number: 25 Registered: 02-2004 Posted on Wednesday, April 27, 2005 - 08:55 pm:    Perhaps the best we can offer Jerome, should he acquiesce to a business decision that is preposterous, is the prospect of his being thrown out of CSI for unprofessional practices. This threat to his future capability to support his young children (hopefully he has some real young ones) will sit well with the courts, even if the CDMS, his client and the Developer do not care about children. Tami B. (Unregistered Guest) Unregistered guest Posted on Thursday, April 28, 2005 - 11:40 am:    I am trying to locate research indicating that contractors which use products that are basis of design are less at risk or have a reduced liability. Does anyone know of such research? David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 442 Registered: 03-2002 Posted on Thursday, April 28, 2005 - 01:12 pm:    Jerome, I spoke with my brother-in-law who is an attorney yet does not practice construction law in your state. Larry says that everything is discoverable. The only things that are not discoverable is confidential discussions between you and your attorney, doctor, therapist or minister. Larry also reminded me that this discussion is now in the public domain on the internet and is also discoverable. He warned that it sounds like the CMD wants you to commit fraud by purposely removing important information from the specs. Larry said quite perceptively that it sounds like the consultant wants you to write "secret specs" with information in hidden traps or landmines. Larry is very puzzled by the consultant's recommendations. Don Harris CSI, CCS, CCCA, AIA Senior Member Username: don_harris Post Number: 31 Registered: 03-2003 Posted on Thursday, April 28, 2005 - 02:16 pm:    I really think that the ownership of the CMD should be investigated. Anon's posting regarding ownership by a law firm is sounding plausible. I think it was during Watergate that Deep Throat said "Follow the money". Just a conspiracy theory to consider. What other firms have been given these recommendations? Have any of them followed them? What have been the results? Does the CMD have any "successful" projects on their resume? Are you the guinea pig? Have others led the way? All are interesting questions to pose to the CMD. Put them on the defensive. Kim A. Bowman, CSI, AAIA, LEED AP Member Username: archspecmaster Post Number: 3 Registered: 02-2005 Posted on Thursday, April 28, 2005 - 05:11 pm:    We have 6 offices in Florida and design schools and higher education buildings all over the state...we also have designed a lot of office biuldings with Florida developers. Their attitude: the cheaper the better. Maybe they think by taking out half the spcs the building will come in cheaper?! Our motto is this, regardless of what our clients say, we sign and seal the drawings and specs, we assume liability for the drawings and specs, therefore, how we think it should be specified and detailed, it is. When the developers try to get us to take out these things in the specs, that is our answer and guess what, 9 out of 10 times they end up saying OK. When we do have to "water down" the specs, the parts we do leave in no matter what are the references to the building standards. Gotta have a basis somewhere. This CMD firm is absolutely nuts! (Unregistered Guest) Unregistered guest Posted on Thursday, April 28, 2005 - 04:14 pm:    Sounds to me like it will be a pretty easy spec to write since you don’t have to deal with all those pesky standards that help ensure quality construction and aesthetics, code compliance, and safe building construction. All you will need to do for specs is provide a long list of products to use and include a front page that says something like: “Build as indicated on drawings. Hope building looks good and doesn’t fall apart. Sell your construction business. Change your name. Get out of town before the lawsuits fly.” David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 444 Registered: 03-2002 Posted on Thursday, April 28, 2005 - 06:07 pm:    Jerome, Ask the CDMS if the architect should leave the dimensions off the drawings. That way the architect will not be held liable if something gets built to the wrong dimension. Richard L Matteo, AIA, CSI, CCS Senior Member Username: rlmat Post Number: 84 Registered: 10-2003 Posted on Thursday, April 28, 2005 - 06:12 pm:    What's my liability if all these e-mails about a CDMS clogs up my computer and it crashes? I think we've established the point that CDMS's are a bad idea and we should run away as fast as we can!! Enough is enough already! Brett M. Wilbur Senior Member Username: brett Post Number: 28 Registered: 12-2004 Posted on Friday, April 29, 2005 - 09:22 am:    Florida? Climate? Huh? Two words come to mind: Dade County. Two more: Factory Mutual. How can you meet insurance requirements for hurricane resistance if you don't cite the requirements? How can they be enforced? Are you going to specify the fastener patterns or indicate them on the drawings? Reference standards are also used by testing agencies. How can you specify testing of soil density requirements without referencing the test method? Yes, I see, re-inventing the wheel. Indeed. Hey, who moved the cheese? Reference standards not only set minimum quality requirements, requirements used to enforce conformance or to justify claims, they also are cited as a shorthand approach to stating requirements without having to state them to the letter. It would be impractical to add all the information contained in the standards to the drawings and specs. “Beginning at 3 inches to the leeward side of the parapet, provide stainless steel roofing fasteners, staggered at 6 inch on center perpendicular to the roof edge with a minimum penetration of 1-1/2 inches into 20 gauge metal deck until you reach a point contained outside the tributary area effected by the uplift contained in the bilateral drift…blah, blah, blah”. Might as well sticky-bak them all to the drawings. Is there a way to address the issue so that a win-win strategy can be employed? Like, could you leave the standards in the specs, but add a note in Div01 to the effect that “reference standards are provided as a means to set a standard of quality required for the project, but shall not be construed to be applicable or to protect the author in the event of claims resulting from their use". Naw, says it all to me. Anonymous   Posted on Thursday, May 05, 2005 - 06:21 pm:    I have been through a similar vetting process only by a client/developer/GC/owner. At the end of the day, we delivered a "record spec" or "as-built spec" (take your pick) purged of any and all things that could trip-up client/developer/owner and be used against the client/developer/owner in a court of law. If, during the bidding phase for trade contractors, the sub chose brand x from the list of brands x, or y, or z in part 2, the spec is changed to include only brand x by "brand name" and with material references (such as ASTM) removed. Standard references to NRCA, SMACNA, FM remained intact elesewhere where appropriate or required for performance requirements. Included in this vetting are watered down submittal requirements, QA/QC requirements, installation requirements (other than "install according to manufacturers printed instructions"). Best practice warranty requirements remained intact. Basically, a 3-Part spec became an outline spec (See figure FF/OS-4 in CSI former MOP). The client did not want anything in the spec that would not be enforced by himself. Construciton sites and GC's are few and far between that have and maintain current editions and complete volumes of ASTM, FM, UL, SMACNA, GA, NRCA, ANSI, TCA, NFPA. Hell, most A/E firms cannot afford to maintain such a complete library. You've been great. I'm out of here. Enjoy Law and Order - Criminal Intent. PS we received additional fees to do this. Phil Kabza Senior Member Username: phil_kabza Post Number: 104 Registered: 12-2002 Posted on Thursday, May 05, 2005 - 09:43 pm:    We have ASTM online subscription, FMG as part of submittal, free UL online access, SMACNA as part of online CCB, GA in free manufacturer's binder (anyone got a PDF?), NRCA 5th CD, access to all ANSI online via subscription, TCA on network courtesy of supplier. Plus full Masterspec library on network and IBC 2000 and 2003 on network, and online NFPA. Total cost this year less than $10,000 for access by 200 people. Value? Priceless. Any reference resource we have online or on our network means our CA staff has access to it from the job trailer anywhere in the world. There's no reason for claiming that any contractor can't have similar access to these resources for any job bigger than a room addition. The reference standard specifying method is only going to continue to increase. Most contractors are very capable of accessing and reading this material. We shouldn't waste any more time here making excuses for the few who can't. Nor should we hire them. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 109 Registered: 05-2003 Posted on Thursday, May 12, 2005 - 02:00 am:    An update to my dilemma - we have all taken a time out while our client reacts to our resounding 'no way Jose approach' - we dumped the problem on all the other consultants on the project who are being asked to make the same changes - when the dust clears, we'll let everyone know what has happened - my sincere thanks to all the responses - more feedback than we ever expected - it has been a wonderful learning experience. Though we doubt it is over and expect the next round to start soon. John Guill (Unregistered Guest) Unregistered guest Posted on Thursday, May 12, 2005 - 01:37 am:    Dear original poster: Everything is discoverable, at any time, especially these posts. You describe a very bad situation, a nightmare. Drop everything and run away as fast as you can to a quiet place where you can "drink to refusal" (similar to driving piles,only more fun). Seriously, I hope this works out for you, because it sounds so bad as to be surreal. Please update the post so we can find out the hopefully happy ending. Regards... JG Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 121 Registered: 05-2003 Posted on Monday, May 16, 2005 - 11:15 pm:    An update to my specification dilemma - I've managed to delay an outcome for this week - all those involved are working on several huge crucial dealines - so those who have yet to respond, your 2 cents may still be needed as the dilemma continues. Susan McClendon New member Username: susan_mcclendon Post Number: 1 Registered: 01-2005 Posted on Thursday, June 02, 2005 - 10:19 am:    Jerome, I have just finished reading all this for the first time and I feel like the last page of the thriller is missing. What happened? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 128 Registered: 05-2003 Posted on Thursday, June 02, 2005 - 10:47 am:    What Happened? Well after writing our response letter six times and discarding it six times, we simplified our response by just saying no! We declined to make any changes as requested by the Owner/Developer's consultant and offered them a sweet deal - we would sell them a digital reproducible version of our original specifications (by the way, we have never done this before) for the project, as long as they give us a hold harmless letter, take our name off the project, advise all concerned that we no longer have any involvement in the project and advised them that once they issue revised specifications we will no longer answer any questions pertaining to the specs. The architect is thinking about it. The unfortunate part of this whole thing is that besides this project, we have two other much larger projects in house with the same architect/developer team. We have not offered them the same option on the other two projects - both of which we have yet to release Permit issue specifications. The Architect who is also Developer would like us to join the pissing match - we have declined. Waiting for round two. Richard L. Hird P.E. CCS Senior Member Username: dick_hird Post Number: 27 Registered: 02-2004 Posted on Thursday, June 02, 2005 - 09:08 pm:    Jerome: Why did you feel compelled to offer them the opportunity to use your specifications? It seems like you were writing them off anyway, when you said you would not answer any questions. Just curious David Axt, AIA, CCS, CSI Senior Member Username: david_axt Post Number: 460 Registered: 03-2002 Posted on Thursday, June 02, 2005 - 09:29 pm:    Jerome, I am not an attorney, but I bet that you can still be dragged into a legal battle. The hold harmless letter just slows things down a bit. The only way I can see you being held harmless is if they stole your specs. I equate giving them specs to edit as to giving some guy a loaded gun and saying that you will not be held responsible for what he does with it. I once (read once) gave an architect an electronic copy of my specs. That was the last job I got with him. He just reused my old specs for his new work and I was out of a job. My experience being an independent specifier (I am now employed) taught me that having no client is better than a having a bad client. It's hard to turn down what seems at first like good lucrative work, but bad clients can end up costing you more money that they are worth. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 129 Registered: 05-2003 Posted on Thursday, June 02, 2005 - 09:43 pm:    Well, I doubt they will agree to pay me for the specs, I expect they will just scan the specs without my permission and do what they want with them...actually that is my hope, once they do this I have a clause in my agreement that will than terminate our agreement. Mark Gilligan SE, CSI Advanced Member Username: markgilligan Post Number: 5 Registered: 05-2005 Posted on Friday, June 03, 2005 - 12:53 am:    I think that you are almost litigation proof. You resigned from the project because you were being asked to do something you disageed with and you told your client of your objections. When they modify the specifications you are home free. If there is a problem Your client will not counter claim against you because if he brings you into court you will say that you warned him of the problem. Talk about a poison pill. The electronic copies of the specifications should not be delivered until you have been paid in full for your time to date. If you handle it right you may make some money by consulting for the plantifs. Litigation is almost guaranteed for condominium projects. What supprises me is that the Architect is going along with this scheme. How can he defend himself if something goes wrong? Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 167 Registered: 05-2003 Posted on Thursday, October 06, 2005 - 02:51 am:    Well...for an update on my original post back in April, appears I may have won the battle, however the war continues...on the original project, I stood my ground with the help of my colleagues on this board and said no and 7 months later, it appears that the issue on that project has been dropped, however the same developer has two other projects, both of which are much bigger than the first one, and on one of those projects the battle begins tomorrow as I am to attend a meeting with the same players from the first project, supposedly with the same goal in mind. It should be interesting, I expect the old blood pressure will rise during the meeting and I will report back to you all as to where this goes...one thing about being a specwriter on condominium work in the south, there is never a dull moment. By the way it seems that the reason I won the first round was due to the fact that while everyone was contemplating how to respond to my resounding no, the GC went ahead and built the building, its been topped off and should be finished in May of next year - seems like no one wants to rock that boat now, on the other building the GMP is being negotiated, so the developer expects changes can still be made...we will see...always interesting this business of specwriting. Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 234 Registered: 02-2003 Posted on Thursday, October 06, 2005 - 07:15 am:    Good Luck!!! Kill 'em with professionalism!! Remember: what is good for the goose [i.e., the first project] is good for the gander [each of the subsequent projects]. Tough times never last-- tough people do!!! Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 169 Registered: 05-2003 Posted on Thursday, October 06, 2005 - 09:52 am:    So Ralph were you a cheerleader in a former life...you always seem to know what to say...let's hope it doesn't kill me first. Jerome J. Lazar, RA, CCS, CSI, SCIP Senior Member Username: lazarcitec Post Number: 209 Registered: 05-2003 Posted on Thursday, March 23, 2006 - 02:11 pm:    Update on my previously documented specification dilemma as I prepare to leave for Vegas - Specwriter 1, Developer's Mashugana CDM Consultant 0 - it seems I have won. Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 343 Registered: 02-2003 Posted on Thursday, March 23, 2006 - 02:36 pm:    Geez, Jerome, you're so high now with success and power, you won't have to use a plane!!!!!