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EXAMINING CONTRACT DOCUMENTS
The Holloway Consulting Group, LLC is an expert in examining contract documents for change orders. This type of work is typically part of our assignment, whether on the owner’s or contractor’s behalf. Holloway most often finds that resolution of change requests is shown in the contract documents themselves.
This post continues our series on the issues in contract documents that have led to approved or denied change orders and disputes.
FAT SPECIFICATIONS
“Fat” specifications tend to develop and evolve over some time. As the exact specs are used over and over on projects, issues arise, and change orders are issued. Subsequent specification revisions begin to reflect the architect’s experiences. With each experience, architects sometimes incorporate additional language into their specs.
A contractor confronted with such a specification may conclude that the specification’s objective is to pin down the contractor because the spec appears to be so slanted in the owner and architect’s favor that it’s difficult to understand why any contractor would sign a contract with such a document. However, the “fat spec” can also cause difficulty for the owner and architect because the spec assumes they have coordinated all the different language with the contract documents. The architect has likely added the additional language as each issue arose. The parties may have needed more time to determine if the responsible party had accommodated the issue in some other fashion. Another problem results when the new language is outside the design of the current project and different from the intent of those who had prepared the original spec.
Holloway’s Experience
Our experience examining contract documents for change orders has shown that the net result can be a complicated and confusing specification with overstatements, contradictions, and ambiguities. Although the architect may have thought they included protective language, in all likelihood, the only thing that the architect accomplished was an increased probability of a contractual inconsistency leading to change orders or disputes.
Some of the characteristics of chubby specifications, particularly on a smaller project, include:
a. General Conditions or Special Conditions that are more extensive than the technical specifications themselves.
b. Extensive duplication in the general provisions.
c. Descriptions and instructions that are much longer and labored than necessary.
d. The presence of clauses describing requirements that are not normally encountered in specifications for the type of project.
FINISH SCHEDULE V. SPECIFICATION INDEX
Comparing the Finish Schedule with the Specification Index can expose potential duplications and omissions and indicate whether the design process has been completed in a coordinated manner or performed by different individuals without sufficient coordination.
A Finish Schedule/Specification Index comparison amounts to simply considering the schedule’s headings against the categories included in the technical specifications to confirm that:
a. Each item is accommodated in the technical specifications.
b. Each item is included only once.
INADEQUATE LEVEL OF DETAIL
Holloway Consulting has found that an inadequate level of design detail sometimes reflects that designers attempted to avoid either spending the proper amount of time necessary to complete the design and to shift the burden of any remaining design onto the contractor under the guise of “coordination.”
Missing design information
Missing design information can take many forms, ranging from the obvious to the subtle. Examples include:
a. Mounting or fastening details.
b. Insufficient dimensions to allow the proper location of the work.
c. Incomplete descriptions. For example, should the blocking be continuous, 24 inches on-center, or eliminated?
d. Vague descriptions of unique shapes, angles, etc. For example, what is the exact angle of the spandrel glass?
e. Imprecise layout. The correct radius of curved stone is a consistent problem and source of disputes.
These and other types of deficient design can eat away at a contractor’s profits. They can also require disproportionate amounts of time to resolve because significant time and effort may be needed to convince both the architect and the owner that the missing information is the designer’s responsibility. Examples of time-consuming issues include:
a. Shop drawings are returned with “By GC” or “GC to coordinate” notes on them instead of providing the requested dimensions and details.
b. Job meeting after meeting goes by without a definite and complete resolution of the designs.
d. The contractor assumes unnecessary design liability by taking it upon himself to determine design and dimension solutions to allow the work to move forward.
Remember, “coordination” typically refers to the process of promptly moving existing information from one place to another. On the other hand, “design” typically refers to the preparation of new information. Contractors should generally use caution before assuming any design responsibility, formally or informally, particularly under fixed-price contracts.