Contributed by Eric D. Lussier
On July 26th, my company finished installing a flooring project that sparked a trilogy of blog posts, "Not Quite Ready Yet", "Project Compaction: Not Just for Soil" and (I thought) concluding with “It’s Just a Matter of Time” on July 29th.
This was a non-prevailing wage, privately funded project in one of the Boroughs of Manhattan where our standard credit terms were negotiated with us by the General Contractor. We typically request a 50% deposit at the time of the contract award, a 30% balance due on the day materials arrive on the project and then collect the 20% balance on the final day on site. On this particular project, they agreed to our 50% deposit, but asked to pay us down to 10% retainage within 30 days of completion. We reluctantly agreed and even though it was change ordered immediately, we didn’t insist on collecting additional money up front on the change order work. We eventually collected our 50% deposit on the base bid, despite it taking multiple payments to tally.
I won’t rehash many of the particulars that were outlined in my previous three posts, but this project did not go smoothly from award. We fought tooth and nail to have the space ready, then to have it solely to ourselves, to not have our in-place work damaged (by workers, inspectors or Acts of God) and then to complete within their requested window. The final brush stroke was on Friday, July 26th. I submitted all billing and paperwork in a timely fashion, and we did what many do to receive payment on a construction project: we waited.
At about a week before our Net 30 term approached, I started reminding the contractor that our money was due. We received immediate pushback from the GC that they had not been funded by the owner. Our response was easy: our payment terms were not paid when paid, as per your negotiation.
Back and forth we went. We waited. More back and forth. More waiting. As day 60 approached with no further money received, we decided to protect ourselves the best we could by filing a mechanic’s lien on the project.
Contributed by Liz O'Sullivan
On a recent project of mine, the lack of a submittal for the contractor’s proposed solution to an unexpected situation caused a problem. The contractor didn’t think that a submittal was required by the contract documents, and the architect didn’t realize that a submittal was required by the contract documents. The contractor could have saved himself some money and time, and could have saved the architect and the owner some time, if the contractor had just prepared a submittal for the architect’s review before proceeding with the work. (Oh, yes, some freshly-installed flooring underlayment had to be removed before the project could proceed. THAT was a waste of time and money.)
If something is added to a project, because of an unforeseen condition, everyone (architect, owner, contractor) often acts as if it’s the first time this sort of thing has ever happened. It’s not. Unexpected things happen all the time on construction projects, and that’s why we have standard processes to deal with them.
Anything that wasn’t originally in the project, but is part of the project now, is in the contract as the result of either a change order or a minor change to the contract. Whether it’s a moisture mitigation treatment for an existing slab, or a whole new roof assembly, whether it was initiated by an owner as a late addition to a project, or it was initiated by the contractor as a solution to an unexpected condition, or initiated as a substitution request because of a sudden product unavailability, it ends up in the contract as the direct result of a change order or a minor change (such as the type authorized by an ASI, Architect’s Supplemental Instructions). Even when the change results in no added cost to the owner, and even when its purpose is solely to repair a mistake made by the contractor, it’s a change, and it should be documented (and submitted on).
Architects and specifiers can make sure that the contract documents require submittals for things that weren’t originally in the project. Requiring submittals for items added to the project during construction is a good idea. In fact, requiring submittals for items added to the project during construction may be even more important than requiring submittals for things that were originally part of the design, since the new element wasn’t originally thought through along with the rest of the design. The contractor’s preparation of the submittal, and the architect’s review of the submittal, act as a double-check mechanism to help make sure that the added item will be appropriate.
Contributed by Julia Mollner
Imagine a construction site where material waste is minimized or absent; where any excess usable material is intentionally set aside; where project teams collectively choose to reuse.
The Useful Waste Initiative was conceived with this idea in mind; the idea that preemptive intentional action can divert excess construction waste and better serve the community. As a program of Portland State University’s Center for Public Interest Design, this initiative aligns with its mission to aid underserved communities while working within the typical construction workflow. The intent of this initiative is to redefine what is considered waste, and to utilize an overlooked material resource - construction mock-ups - by re-purposing them while responding to pressing social needs.
Mock-ups play an integral role on the construction site by demonstrating and establishing high quality procedures for building systems, sequencing, and installation. Project teams use the structure to perform tests, understand material compatibility, and demonstrate design aesthetics. It is used for quality assurance and a demonstration of design. Yet, as mock-ups act to save time and money with building installation errors, these mock-ups are seen as temporary structures and typically end up at landfills, which create the opposite output: waste and emissions.
Backtrack two years ago, when the Kenton’s Women Village in Portland, Oregon was going through the development process. This village is based on other local villages such as Right 2 Dream Too, Dignity Village, and Hazelnut Grove, which have their own communal governance. The village-model provides what living on the streets often cannot - privacy, personal safety, property safety, a quiet space, access to clean drinking and bathing water, and cooking facilities. Villages are comprised of small sleeping rooms, also called “sleeping pods”, which are built by individuals or village residents to house one or two people. These sleeping pods create a communal village of residents under a self-governance. With Portland in a State of Housing Emergency, these villages started a local mindset shift. Although these “sleeping pods” do not have electricity or plumbing, they serve a critical purpose - housing first.
After my participation in the Kenton Women’s Village construction and alongside my own professional construction contract administration experience, I began questioning what purpose a mock-up could serve after use on a construction site. Do these structures - similar to tiny homes - need to go to the landfill?
Contributed by Liz O'Sullivan
I’m going to say it again: If something is required by the Specifications, it’s required by the Contract.
A procedure or item specified in the Specifications is part of the Contract, just as much as if the procedure or item were specified in the Agreement. (The Agreement is what many people usually think of as the “Contract,” because it’s the particular document that gets signed by the Owner and the Contractor, and it has the Contract Sum indicated in it. But the Agreement is only ONE PART of the Contract.)
The Contract is made up of the Agreement, the Conditions of the Contract, the Drawings, the Specifications, etc. AIA Documents state this requirement most clearly; Owner-generated Agreements and Conditions of the Contract sometimes fall short of being explicit about this. (This is one of many good reasons to use AIA Documents instead of Owner-generated documents.)
This requirement is SO IMPORTANT that it makes up ARTICLE ONE of AIA Document A101-2017 (Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum), a very commonly used Agreement.
“The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement, all of which form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein.” – from Article 1 of AIA Document A101-2017
I don’t think I can say this any more clearly.
But somehow, there are a number of Contractors out there who don’t seem to realize that the Specifications are part of the Contract, and there are even a few Architects out there who don’t seem to realize that the Specifications are part of the Contract that they are supposed to be administering during construction. An Owner agrees to pay a Contractor a certain sum, the Contractor agrees to provide the Owner with certain things indicated by the Drawings and Specifications and other Contract Documents, and, in a separate Agreement, the Architect and the Owner agree that the Owner will pay the Architect a certain sum, and the Architect will administer the Contract between the Owner and the Contractor. We all have contractual obligations during construction, and we all need to understand, and follow through on, all of those obligations.
Remember, if it’s in the Specs, it’s in the Contract.
This post originally appeared on Liz O'Sullivan's website as "If It’s in the Specs, It’s in the Contract"
(Editor's Note: The CSI (Construction Specifications Institute) Construction Document Technologist (CDT) Certification is an ideal resource for this core knowledge of project delivery. Want to learn more about the CDT and the Study Groups offered for the Spring Testing window? Please visit here.
Contributed by Cherise Lakeside
This past October, Let's Fix Construction once again attended CONSTRUCT in Long Beach, California and as members of the Education Advisory Council, we found it to be one of the best yet. We are honored to partner and work with CONSTRUCT as the show holds much the same philosophy as we do here at Let’s Fix Construction: bringing all parties of the project team together to learn, discuss issues and grow as a TEAM.
CONSTRUCT offers an environment where attendees can discuss issues in a way that we often cannot under the rules of communication in a construction Contract. There are few other conferences that have representative voices from the entire built environment in a room discussing our industry and needs - all with an equal seat. The best thing about CONSTRUCT is that it is not focused on any one discipline within the AEC Industry. Architects, Specifiers, Contractors, Engineers, Consultants, Subcontractors, Product Reps and Owners all have educational opportunities to learn and further your career. The social and collaborative environment of the show makes the education provided that much more valuable.
CONSTRUCT is an annual event that offers the opportunity to share best practices, learn the latest in construction industry design and processes, project delivery, specifications, contract administration, building product manufacturer (BPM) education and much more. The education, events and show floor are all formatted in a way to serve any member of the building team. The education is enhanced by the ability to discuss and share experiences on topics that we deal with every day in this industry.
CONSTRUCT is a great conference because of the diverse industry professionals that join us to share knowledge, solutions and real-world practices that can be used as soon as you return to your office or the job site. Speakers and instructors from all across the industry join us so we can all come to the table and learn from each other.
CONSTRUCT WANTS YOU!
The Call for Sessions for 2019 is out for submissions. CONSTRUCT is looking for industry leaders - in ALL disciplines - to consider submitting a proposal to speak or teach at CONSTRUCT. Now is your chance to share your knowledge and turn what you’ve learned into a unique presentation that will help improve the construction community. Consider submitting a proposal for CONSTRUCT 2019, which will be held October 9-11 at the Gaylord National Resort and Convention Center in National Harbor, Maryland (right across the bridge from Washington DC).
Let's Fix Construction is an avenue to offer creative solutions, separate myths from facts and erase misconceptions about the architecture, engineering and construction (AEC) industry.
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