Using specifications and drawing notes to create an end-run around the contract
by Steven G. Shapiro*
During a typical design and construction project, the general contractor and architect work closely for the duration of a project, often without a direct contract, to legally define the scope of their relationship. In the absence of a contract, the parties often jockey to create greater rights to protect their own interest. Lately, it seems that the architecture community has expanded its rights to the detriment of the contractors.
Consider, for example, an architecture firm designing an office building and a general contractor engaged in its construction. By the terms of its agreement with the owner, the general contractor delivers a submittal to the architect for review and may contractually expect a response in 7 business days. By the terms of the drawing notes and specifications, however, the architect may have reserved 10 business days to respond to the submittal.
This simple example illustrates the seemingly endless tension in the allocation of the rights and duties between the general contractor and the architect. In the traditional delivery method of design-bid-build (or various hybrid forms of project delivery), the architect holds a contract with the owner regarding the duties of design and contract administration. As part of its engagement, the architect then issues drawings and specifications setting forth the design of the project.
At the same time, the general contractor negotiates a separate contract with the owner regarding construction services. In the construction services agreement, the drawings and specifications are incorporated into the document to form the contract documents. These contract documents bind the GC to their dictates and directions and, at times, conflict with the terms and conditions of the construction agreement.
By appearances, the architectural community has recently expanded the reach of the specifications and drawing notes to place undue risk to the contractor. As a construction manager and allied member of the AIA, I appreciate the agenda of the architects. The zeal to re-allocate risk to the contractor is now beyond the norm.
Legal disputes, or perhaps battles of negotiation, are likely brewing between the GC community and developers, and, by extension, architects. In the near-future, I would expect to see contractors seeking to limit the power of the architects to set forth their working relationship. In the absence of resolution, I can envision litigation to resolve these issues.
*Steven G. Shapiro, an allied member of the AIA and former commercial real estate development attorney, is an adjunct professor at the University of Maryland and a project manager at a large general contractor. He can be reached at firstname.lastname@example.org.
This entry represents the informed opinion of the author only. It is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine the complex interaction of laws, suggestions, and illustrations with specific situations.