Words Matter… Especially in Contracts

I am not an attorney, but once in a while, I look at contracts all day long.  Why would I do that to myself?  Because these documents directly affect my work of preparing architectural construction specifications.

The contract documents for a construction project include contracting forms (such as the owner-contractor agreement), conditions of the contract (such as AIA A201), the drawings, and the specifications.  These documents, all together, make up the contract.

These documents should not conflict.  All too often though, because different parties prepare different documents, conflicts occur.

The owner-contractor agreement may say one thing, and the conditions of the contract may say the opposite.  The conditions of the contract may say one thing, and a Division 1 specification section may say the opposite.  A Division 1 specification section may say one thing, and a technical section of the specifications may say the opposite.  The technical sections of the specifications may say one thing, and the drawings say the opposite.  I’ve even seen General Conditions directly conflict with Supplementary Conditions!

My attorney and insurance professional friends will happily tell you that when a contract is ambiguous, courts usually side against the party who drafted the contract.  What does that mean for design professionals?

We have to coordinate, coordinate, coordinate.  If the Owner prepares General Conditions, the person preparing the specifications needs to make sure the specifications are coordinated with the Owner’s General Conditions.  If AIA A201 General Conditions are used, and the Owner just prepares Supplementary Conditions, the person preparing the specifications needs to make sure the specifications are coordinated with the Owner’s Supplementary Conditions.  If the Owner prepares General Conditions, Supplementary Conditions, and Division 1, the person preparing the technical specifications needs to make sure that his work product does not conflict with the Owner’s documents.  To protect his firm, the person signing the Owner-Architect Agreement should make sure that the Owner’s General and Supplementary Conditions do not conflict with provisions in the Owner-Architect Agreement.

And the issue on my mind all day today?  If the Owner has a Guide Specification/Technical Specification/Specification Standards sort of document that he expects design professionals to adhere to when preparing drawings and specifications, this guide SHOULD NOT CONFLICT with the Owner-prepared General Conditions and Supplementary Conditions.  Ah, yes, this should go without saying… However, I have spent days of my career as an architectural specifications consultant trying to coordinate conflicts among Owner-generated documents to make sure that the work I produce does not conflict with any other contract documents.

Again, I am not an attorney, but I have a feeling that uncoordinated Owner-prepared documents increase our risk as design professionals.  We have to produce coordinated documents, no matter what our Owner clients give us.  Every word matters! 

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