Document Conflicts

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Author Message Don Harris CSI, CCS, CCCA, AIA Senior Member Username: don_harris Post Number: 117 Registered: 03-2003 Posted on Wednesday, March 14, 2007 - 10:42 am:    I’ve always been told “there is no such thing as a stupid question”. This one might test the hypothesis. Apparently, in the past there were statements in contract documents that basically stated that if a contractor found a discrepancy they should bid the more expensive or higher quantity option. In my mind this is not only unenforceable, but also patently unfair. However, I keep getting asked by others in the firm why a statement like this is not included in our documents as a CYA. I’m in the camp of coordinate the documents the best you can and use the procedures in the Instructions to Bidders and General Conditions for answering questions. I can find nothing in A201 or A701 that even hints that such a statement would be proper. Does anyone still use statements like this? If so, what is the rational? Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 560 Registered: 02-2003 Posted on Wednesday, March 14, 2007 - 11:00 am:    Not stupid, Don, just interesting!!! Such inserts give up the purview/right/ obligation/power of the design professional and leaves what is actually provided at the whim/guess/desire of the contractor-- we lose control!. Documents need to be firm, and in such condition as noted in AIA A701, Instructions to Bidders. Documents should be used a basis for bids, and if conflicts or ambiguities arise, A701 calls for resolution by the Architect upon the discovery and request of the Bidders. To get a project faithfully built tothe design concept means we need to maintain control. Let's not give up any more power/authority than we have now! Richard Howard, AIA CSI CCS Senior Member Username: rick_howard Post Number: 120 Registered: 07-2003 Posted on Wednesday, March 14, 2007 - 11:01 am:    Statements of that sort actually delegate the architect's authority to interpret the contract documents to the contractor. This kind of abrogation of the architect's responsibilities is the reason that design-build has become so popular. If architects would like to have their profession reduced to just being a drafting service for builders, then that is the way to go. Helaine K. (Holly) Robinson CSI CCS CCCA Senior Member Username: hollyrob Post Number: 294 Registered: 07-2003 Posted on Wednesday, March 14, 2007 - 11:03 am:    You might want to look at the AIA A511/CMa 1993 Guide to Supplementary Conditions, Page 7, 1.2.3 Ronald L. Geren, RA, CSI, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 416 Registered: 03-2003 Posted on Wednesday, March 14, 2007 - 11:19 am:    Those types of statements are sometimes referred to as "document precedence," where an established order is set to determine which document takes precedence over other documents. This is typically used in government (city, state, and federal) contracts. The reason you can't find a similar statement in the AIA documents is that the AIA documents consider the construction documents as "complementary" (that's with an "e" and not an "i"). Look at AIA Document A201, Sections 1.2.1 and 3.2.1. If the contractor finds a discrepancy, he is required to bring it to the architect's attention (refer to AIA Document A701 "Instructions to Bidders," Section 3.2.1, and AIA Document A201, Section 3.2.2), and the architect, the official interpreter of the documents, makes a decision as to which is correct. The decision of the architect is final. During bidding, decisions such as these should be made available to all bidders via the addendum. After contract execution, these decisions are made via the RFI (provided the contractor notified the architect of the discrepancy with an RFI). Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 240 Registered: 01-2003 Posted on Wednesday, March 14, 2007 - 11:31 am:    If only we produced perfect documents! And if only bidders would look at them sometime before the day of the bid opening! Having what amounts to an order of precedence can be useful during bidding, provided the items in question are addressed immediately after award of contract. What do you tell the bidder who calls two hours before bids are due, to ask if you want the VCT indicated in one place, or the onyx tile indicated in another? "Make your best guess" seems pretty lame. In contrast, the "greater expense" rule gives the bidder clear direction. This does not give the bidder control of the project. The design professional remains responsible for resolving discrepancies, and for documenting them by change order. As long as the changes are made immediately after award, there should be few problems. It is certainly more open and fair than when bidders include non-specified products in their bids, or choose the less expensive option when faced with an ambiguity or conflict, knowing they have a chance to beat the other bidders and then make a nice profit on the change order. Note that the process would appear in the instructions to bidders, and not in the supplementary conditions. The former makes it a way to resolve late bidding questions, while the latter does take control from the design professional. Mark Gilligan SE, CSI Senior Member Username: markgilligan Post Number: 144 Registered: 05-2005 Posted on Wednesday, March 14, 2007 - 11:44 am:    My preference is to require the Contractor ask the Architect for clarification, when there is a conflict, prior to building it. At the same time there should be no extra charge as long as the cost of what the Architect required does not exceedd the cost associated with either of the conflicting conditions. This is consistent with the responsibility the Contractor has to identify conflicts during bidding and prevents the abuse where they claim an extra when the Architect selects the more expensive of the two conflicting details. I do not believe that this is unfair. This approach also retains for the design professional the ability to resolve conflicts. Nathan Woods, CCCA, LEED AP Senior Member Username: nwoods Post Number: 183 Registered: 08-2005 Posted on Wednesday, March 14, 2007 - 11:53 am:    There seem to be two points of view. As a full time construction administrator, I think both are correct. Bid language should assume the higher cost item, construction contract language should defer to the Architect for clarification. Richard A. Rosen, CSI, CCS, AIA Senior Member Username: rarosen Post Number: 9 Registered: 08-2006 Posted on Wednesday, March 14, 2007 - 12:09 pm:    Has anyone heard of court decisions that deal with this? I have been told that "the courts" have determined that since the point is to submit the lowest bid then the contractor can make the assumption that when there is a conflict the lower priced alternative can be reasonably assumed. Ron is correct, these statements are typical in government work where there isn't any RFI proceedure. Ronald L. Geren, RA, CSI, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 417 Registered: 03-2003 Posted on Wednesday, March 14, 2007 - 12:29 pm:    To modify Nathan's statement: bid language "may" assume the higher cost. Requiring the bidders to use the higher cost item will penalize the owner in the end on bid day, especially if it tips the project over the unfundable line. Granted, some of these items can be modified by change order after contract execution, but will the owner get all the cost back? Very unlikely. Plus it adds to the administrative work for all parties. Letting bidders take the option of pricing the higher cost item puts the risk on them; for they might not get the contract due to a higher bid. If I were a bidder, I'd want everyone bidding on the same items, therefore, I'd inform the architect to get the word out to all the other bidders. All this aside, there needs to be some reasonable judgement on the part of all parties. AIA Document A201 also uses the term "reasonably inferable." If VCT is used in the specifications, on the finish schedule, and on the floor plans, does one note on a detail or two referring to onyx tile mean that onyx tile is required? To me, it would be reasonably inferable that VCT is required on the project and not onyx tile. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 481 Registered: 07-2002 Posted on Wednesday, March 14, 2007 - 01:50 pm:    in the Seattle market about 25 years ago, we developed an order of precedence to be used for bidding only with the final adjustments to be made after the bids were taken. the point of this was to avoid the contractor claims of "well, it was unclear so we just left it out". the idea was that there would be something in the bid, even if it was wrong, instead of nothing in the bid. (the example I had from my job was the reflected ceiling plan showed 2 x 4 panels; the schedule showed gypboard, and so the contractor left out all ceilings in that space. now... it was clear that we intended something to be there, but it wasn't clear what we intended. I was irritated at the idea that they would not put anything in there, but they argued that it would make them lose the bid). once this idea got out, it was pretty useful in the public bid sector. I then moved to doing all negotiated projects, so the usefulness was somewhat less. I think the idea of "you have to bid the most expensive thing" is the wrong idea. But an order of precedence that says something like "large scale details overrule small scale details; schedules take precedence over reflected ceiling plans; " or the like shows that you've at least thought of where the conflicts might be. I never rely on "reasonably inferable" or general terms. I think that if you're going back to language like that, you've lost the argument already. Clearly the Architect is the arbiter, but we also have the time and responsibility to make sure that these items are covered somewhere. we can resolve a conflict; we can't really resolve an absence of information. Steven Bruneel, AIA, CSI-CDT, LEED-AP Senior Member Username: redseca2 Post Number: 37 Registered: 12-2006 Posted on Wednesday, March 14, 2007 - 01:55 pm:    I often see a variation of this in specification language provided to us from our structural engineering consultants for performance criteria for systems with a degree of design-build. Here is one I just copied from a "Window Wall and Curtain Wall" Section from a current project: "Provide complete wall system capable of withstanding wind pressures acting inward and outward to be calculated in accordance with the more stringent value from the CBC, 2001 edition, the ASCE, and information shown on the Drawings". This is saying to the Contractor to pick the more expensive solution in a slightly more subtle way. Richard Baxter, AIA, CSI Senior Member Username: rbaxter Post Number: 42 Registered: 12-2004 Posted on Wednesday, March 14, 2007 - 01:58 pm:    Here is some paraphrased information I heard at the CSI show last year: The Spearin Doctrine states that if the contractor is bound to building according to our plans and specifications, the contractor will not be held responsible for the consequences of defects in the plans and specifications. General disclaimers requiring the contractor to check plans and determine requirements do not shift the responsibility to the contractor, assuming that the contractor is truly misled and truly damaged by the deficient specs. Courts generally interpret ambiguities against the party that drafted the agreement (i.e., the specifier). In other words, it is our responsibility to state it correctly. Asking the contractor to bid the more expensive or higher quality option in a discrepancy is one of many ways to attempt to shift responsibility for the ambiguities or conflicts in our documents to the contractor. Including such a statement should at best be considered a request rather than a requirement. The contractor might comply with it, but I’m guessing that the courts will not consider such a statement valid if the contractor chooses not to comply with it. If we want the contractor to bid the more expensive or higher quality item, then it is our responsibility to specify that item. Ronald L. Geren, RA, CSI, CCS, CCCA, SCIP Senior Member Username: specman Post Number: 418 Registered: 03-2003 Posted on Wednesday, March 14, 2007 - 02:21 pm:    The "reasonably inferable" statement doesn't just apply to the contractor's execution of the work, it also applies to the architect's interpretation of the documents in cases of conflict (AIA Document A201, Section 4.2.11). I've relied on these statements in the past with reasonable success. I agree, conflicts can be resolved, and the "reasonably inferable" statement is the basis upon which the architect makes his/her decision. If it's not on the drawings or in the specifications, then it can't be reasonably inferable, therefore it isn't enforceable. The real problem comes when the conflict could easily be interpreted either way. However, the architect's decision is still final, and if the decision adds cost or time, then the contractor has a right to make a claim per A201 Section 3.2.3. Steven Bruneel, AIA, CSI-CDT, LEED-AP Senior Member Username: redseca2 Post Number: 38 Registered: 12-2006 Posted on Wednesday, March 14, 2007 - 03:16 pm:    "More expensive" may also be very hard to define when stirred into a pot of Contractor's means and methods options. For a simple example: Is $100 per unit delivered from NYC to SF with a minimum 4 week lead time really better than walking across the street to the big box store and paying $125 on an as-needed basis for the same item blister-packed? Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 241 Registered: 01-2003 Posted on Wednesday, March 14, 2007 - 03:21 pm:    Good documents will prevent most problems, and addenda can be used to correct others before bid opening. The issue here is the question that comes up when it's too late to do anything. If you can't issue an addendum, you can't tell just one bidder what to do. It's like any order of precedence clause - sometimes it will work in the owner's favor, sometimes not. The A701 requires written requests to be received by the architect seven days before bid opening. The reality is that, despite the many complaints about not having enough time to bid, it seems many contractors don't get started until the week before bid opening. As Ron notes, reasonable judgment is important, so you can't really ignore an important question that pops up after the seven-day cutoff. If I were a bidder, I also would want everyone bidding on the same thing, and I'm sure any architect would issue an addendum if there were time to get it to all of the bidders. The A701 sets that time at four days before the bid opening, but we use a shorter period when not doing public sector work, as we have more control over who is bidding. I'm sure four days was considered the last minute when we relied on snail mail, but today, issuing an addendum by e-mail or fax one day before bid opening gives the bidder just as much time to deal with it. It doesn't sound as good, but in practice, it's better. In the good old days, when we used snail mail all the time, a contractor who received a mailed addendum the day before bid opening would find it difficult get the information to subs. Today, an e-mail received at the same time could be relayed to others instantly. J. Peter Jordan Senior Member Username: jpjordan Post Number: 223 Registered: 05-2004 Posted on Wednesday, March 14, 2007 - 04:11 pm:    I have always discouraged the use of "precedence" requirements in construction documents, basing this view on the complementary requirements in A201. This doesn't get anyone in too much trouble with private jobs and select bidders. The projects that I have worked on will have a period of negoiation after bids are opened and any last minute stuff is usually resolved there. I can see the wisdom of a default precedence requirement in the Bidding Documents and may consider it in future projects. Strict deadlines with bidding can be problematic. One architect I worked for would issue addenda on the same day that bids were due (I was horrified). Will all due respect to the observations about electronic communications, many of the subs do not have access to such facilities--if they are a small sub, they may be on a jobsite and completely out of touch. While I do sympathize with bidders who call at the last minute with very real questions, they must do the best they can and assume the risks associated (actions and risks with which the architect is all too often unaware and unsympathetic). I would never recommend that addenda be issued later than 5:00 pm of the day before the day before bids are opened. The deadlines are affected by bid dates. deadlines for a bid received on Tuesday should be viewed differently from bids received on Wednesday or Thursday. A bid opened on Tuesday will suggest to me that the last day to issue addendum is the Friday before. Those who put off examining the documents until the weekend before may be out of luck if they have questions. Does anyone recommend receiving bids on Monday or Friday. In this part of the world, we also take into account the opening dates for hunting dove and deer (which vary across the state) as well as regular holidays. Wayne Yancey Senior Member Username: wyancey Post Number: 317 Registered: 05-2005 Posted on Wednesday, March 14, 2007 - 04:30 pm:    If all else fails include the following tried and true paragraphs in the event of "It's My Fault, Your Problem" scenario. No warranty expressed or implied when using this laguage. Use at your own risk. "The plans and specifications are to be taken together. Anything shown on the plans and not mentioned in the specifications and not shown on the plans, is to be considered as both shown and specified, or anything wanted by the [Architect][Engineer] shall be considered as shown, specified, implied, intended, and required, and shall be provided by the Contractor without expense to anybody but himself." "If the Work has been done without any expense to the Contractor, the Work shall be taken down, dug up or reworked, and redone again until the expense is satisfactory to the [Architect][Engineer]." "Anything that is correct in the plans is to be considered correct; amything that is incorrect in the plans is to be discovered by the Contractor and shall be made correct without informing the [Architect][Engineer] or indicating it in the Applicaiton for Payment." "Anything that is forgotten or left our of the plans or specifications but which is necessary for the convenience of the Owner shall be provided at the Contractor's expense. The [Architect][Engineer] reservses the right to, at any time, change his or her mind concerning what is best or most expensive or both." "Any evidence of satisfaction on the part of the Contractor shall be considered as just cause for withholding final payment and the Contractor shall have no recourse." Just kidding of course. Anne Whitacre, FCSI CCS Senior Member Username: awhitacre Post Number: 483 Registered: 07-2002 Posted on Wednesday, March 14, 2007 - 04:39 pm:    Peter: we used to have the same issues with bids on Monday or Friday -- it just wasn't done. Monday was scheduling and take-off day; Friday was payroll. I haven't seen any references to hunting season for a long time now, but there are some parts of the northwest where its part of the "business as usual" Sheldon Wolfe Senior Member Username: sheldon_wolfe Post Number: 242 Registered: 01-2003 Posted on Wednesday, March 14, 2007 - 05:42 pm:    Local tradition is to avoid Mondays and Fridays, days just before or after public holidays, as well as fishing opener, deer opener, and a couple of other "holidays". Ralph Liebing, RA, CSI Senior Member Username: rliebing Post Number: 561 Registered: 02-2003 Posted on Thursday, March 15, 2007 - 07:05 am:    And don't receive bids at noon hour in congested areas; and never receive before noon; be sure to have signs directing bidders to the room of receipt; have ample parking; lock the room door at the "appointed hour"; time stamp all bids received; make requirement that faxed bids MUST have ALL pages printed out prior to bid time [responsibility of the bidder!]; electronic bids must contain time and must be received prior to bid time; don't bid when storms are coming,the wind is out of due south, or in very remote locations that are difficult to find. Oh, and never under nimbo-cumulus cloud cover [i.e., the "dark" cloud hanging over.....] Tracy Van Niel Senior Member Username: tracy_van_niel Post Number: 208 Registered: 04-2002 Posted on Thursday, March 15, 2007 - 07:54 am:    I can remember being at a bid opening at the State of Ohio and the deadline for bids had just passed and the door was locked ... someone came running off the elevator and tried the door. When he found the door locked, he took his bid envelope and passed it over the top of the partition wall (walls, of course, did not go up to the ceiling) ... the architect I was with and I both watched to see what happened. About a minute later, the envelope came sailing back up over the partition wall and out into the corridor.