“Oh, But I Assumed…”

Owners, have you ever heard, “Oh, but I assumed…” or “Oh, but our bid was based on…” from a contractor?  It’s frustrating, isn’t it?

For some reason, in construction, too many people make too many assumptions that they don’t tell anyone else about.  Everyone does it – architects, consulting engineers, contractors, and yes, owners, too.  But there’s a way to combat this problem, which will decrease an owner’s pain during construction, and will increase the value owners get out of a project.

There are three parts to this simple solution, and the entire project team (owner, architect, and contractor) is involved.

  1. Have good agreements and a good project manual.  (The project manual, which includes the project specifications, is also known as the “specs.”  Sadly, it’s often observed being used as a paperweight or a doorstop in construction trailers.)
  2. Make sure the architect and the construction manager (CM), if a CM is involved, enforce the requirements of the contract documents during construction.
  3. Use the contractor’s payment as leverage to make sure that the requirements of the contract are complied with.  Do not pay the contractor what he is not owed according to the requirements of the contract.  (And make sure that you DO pay the contractor what he IS owed according to the requirements of the contract!)

Good Agreements and Good Project Manual

Owners, you need good owner-architect and owner-contractor agreements, and they need to coordinate with each other, with the conditions of the contract, and with the requirements of the project manual.  AIA documents are commonly used for agreements on private projects and some public projects, and have been time-tested.  The requirements in AIA contracts are usually easily achievable in practice.  Talk to your attorney when preparing the agreements – but make sure you’re talking to an attorney who practices construction law!  (Construction law is a unique animal.  Non-construction lawyers sometimes create uniquely unenforceable construction contracts.)

As the design team prepares the project manual, they must make sure it coordinates with the agreements and the general conditions of the contract.  If the architect mentions that there are some unusual provisions in the agreement or in the general conditions, and suggests that you consider changing them, ask why.  Try to understand the architect’s explanation, and discuss it with your construction law attorney.

Division 01 of the specifications (the general requirements) is a crucial part of the project manual.  Division 01 expands on the provisions of the conditions of the contract.  Division 01 is where you put all those things that people often make incorrect budget-busting assumptions about – whether or not there will be occupants in a building that the contractor will have to work around, whether or not the construction will be phased and the owner will move into part of the construction prior to completion of the entire project, whether or not the owner will have separate contractors on site that the contractor will have to work around (such as a furniture installer).  Making the wrong assumption on important items like these can blow a schedule and can blow a budget, which will make for a tense and unpleasant project.  Owners, don’t assume that the architect automatically knows these requirements of yours.  Don’t assume that the contractor knows these requirements of yours.  Make sure that requirements such as these are in writing in the contract documents.  (The contract documents include the owner-contractor agreement, the general conditions of the contract, supplementary conditions of the contract, the drawings, the specifications, and addenda.)

Owners need to know what’s in Division 01 as well as what’s in the agreements and the general conditions, just as much as architects and contractors do.   Some owners prepare their own Division 01, it’s so important.  Division 01 contains the “rules” for the project during construction, and lists all the procedures for the administration of the project (processes for submittals, pay apps, mockups, testing, operations and maintenance manuals, substitutions, project meetings, construction trailer requirements, record documents, demonstration and training of new equipment, and many other important things).  You do not need to leave these things up to chance and just hope for a good contractor who somehow knows what you are hoping for.  You put these things in the contract.


Enforcing the documents means doing unpleasant things such as not approving submittals until proper documents are submitted, requiring work to be redone at the contractor’s cost if it does not meet the specs, and rejecting pay applications when too much money is asked for compared to the percentage of work actually completed.

The first enforcer is the contractor.  The contractor has to enforce the documents with his subs.  The next line of enforcement is the architect.  The architect has to enforce the documents with the contractor.  As an architect, I’ve worked with “enforcing contractors” and with “non-enforcing contractors.”  “Enforcing contractors” review the subs’ submittals and reject them when they don’t meet the requirements of the specifications – the architect never sees submittals that the contractor thinks aren’t right.  “Non-enforcing contractors” would rather disagree with owners and architects than rock the boat with subcontractors, and sometimes send submittals to the architect that might be so far off, they’ll make everyone scratch his head and wonder if the contractor even looked at the submittal (or at the specs).

Working with a contractor who enforces the documents is much better for an architect and an owner, and much better for a project.  But sometimes there’s not a lot of control over the contractor.  What’s worse for an owner than a “non-enforcing contractor” is a “non-enforcing architect!”  An architect is not being “difficult” or “hard to work with” or “not a team player” if he or she is consistently enforcing the requirements of the contract documents.  That architect is just following the rules, which were set out in Division 01 of the specifications (and remember – the specifications are part of the contract between the owner and the contractor).

Sometimes, architects have to enforce the documents against their own best interests, and sometimes against the financial best interests of the owner.  Owners, please try to understand this.  Under AIA A201-2007, a commonly used form for the general conditions of the contract, during construction, the architect is supposed to interpret the requirements of the contract documents.  Owners, if the architect omitted something from the documents that you had told him or her to include, it’s simply not in the contract between you and the contractor.  It’s not something the contractor owes you for no additional cost.  The problem of the omission is a problem to be discussed between owner and architect.  It’ll probably have to be added to the project, added to the contract, and yes, it’ll probably cost you, the owner, additional money beyond the original contract sum.  This is not a dispute to drag the contractor into – there’s nothing he could have done about it.

The architect who enforces the documents consistently will speak up and interpret the documents fairly, and admit the omissions of his or her firm, if there are any.  Consistent enforcement of the documents by the architect is key to having a smoothly running project.  I believe that it’s easier for contractors to hear about their mistakes, and fix them, when they know that the architect has been honest about his or her own mistakes.   

Payment as Leverage

Owners, you’re not being “mean” if you don’t pay the contractor the full amount requested when the pay application includes work that’s noncompliant with the documents, you’re merely complying with the requirements of your agreement.  Don’t pay for work that’s not in compliance with the documents.  Architects shouldn’t certify pay applications if they’re not certifiable.  (There’s one project in my past that never got certification from my firm on the contractor’s final pay app.  The work wasn’t complete.  I didn’t approve it; nobody from my office approved it.  The owner paid the final payment to the contractor anyway, and lost leverage to get the punch list items completed, and may have taken on some liability that the architect might have otherwise had.)

Don’t Make Assumptions!

Write down all your assumptions!  Discuss them with the architect, even if you already have standard published requirements that are supposed to go in Division 01, as many public agencies do.  Put them in writing, as part of the contract, whether they belong in Division 01, or in the conditions of the contract, or in the owner-contractor agreement.  Once they’re in the contract, they’re no longer just assumptions.  They’re contract requirements.

Make sure they’re enforced.

Support the architect, who is in the weird position of having to be the neutral enforcer of the contract.  Architects have to be as hard on themselves as they are on the contractor – it’s an awkward position to be in, but they can’t be defensive about the documents, they have to enforce the contract.

Owners, back up the architect’s enforcement of the contract with payment for compliant work and with non-payment for non-compliant work.

Those are the rules!

The Meaning of Teamwork

Ah, the meaning of teamwork is being discussed again.  In a recent online column, Michael S. Weil wrote that I don’t understand the meaning of teamwork.  (He was mixed up about my name, which is O’Sullivan, not Sullivan, but he quoted from my blog post on Integrated Project Delivery in his piece.)  This post is my response to him.

Sometimes, the most valuable player on the team is the one who demands that each member pull his or her own weight.

Many people understand my above statement pretty well from experiences in their personal lives, especially people who are part of a household with children and 2 parents who work outside the home.  It might take time for such demands to be appreciated and to be seen for what they are.  It is not always easy to be the “bad guy.”  I know both men and women who sometimes have to remind their partners at home that it’s their turn to do something for the kids or something in the kitchen.  Speaking up and reminding one’s partner is better for the relationship than not speaking up (and just doing it oneself and resenting it).  We need to team up on the things we can’t do alone.

Years ago, when I was the architectural project manager on a school addition/remodel project, I had assistance from various coworkers throughout the project.  For the more technical items, such as the design and detailing of the roof assembly and parapets, an architect who was much more experienced than I assisted me.  Sometime early in construction, a question from the contractor came up about parapet height and the tapered insulation on the roof.  I discussed the issue with my boss, and I offered to figure it out.  He said no, have the architect who originally detailed it figure it out and fix it

I never discussed his reasons with him, but I see a few good reasons for his response:  First, it’s good to have people clean up their own messes.  (This was not a mess, just a minor miscalculation, but the idea is the same – require people to finish what they start.)  Second, it’s important to maintain continuity of thought throughout a problem-solving process – only this other architect knew what factors she had taken into account from the beginning – giving the problem to someone else to solve would have thrown away that knowledge.  Third, it’s good to pick the most appropriate person for the task based on skills.  Since the other architect was more experienced than I, she was the more appropriate person on our office team to draw those details.

Teamwork on a Construction Project Team

Teamwork!  It often means working by oneself, and bringing the products of that work back to the team.  Work must be broken down into discrete tasks, and the tasks have to be given to the people on the team who are best-suited to those tasks.  Many of these discrete tasks (such as detailing a roof parapet) are best accomplished in solitude.  Some (such as compiling a GC’s bid on a bid date) need to be accomplished while working constantly with others.  In either case, people must give their all – team members cannot expect others to pick up their slack. 

My January 2012 blog post “On Collaboration” discussed my vision of teamwork: 

“I think about construction project team collaboration kind of like this:

“If everyone on a project team gives 101%, if everyone does his own job as thoroughly and as best as he can (accounting for the 100%), PLUS goes an extra 1% (tries to anticipate and be proactive about locations where gaps between the work of team members might occur, and tries to overlap a tiny bit) we’ll get to 100% (our best work as a team) on the project.”

The Teeter-Totter

There’s a teeter-totter kind of mechanism in every relationship – if things are to keep moving, the less one party does, the more another has to do.  The more one party does, the less another has to do.  (You may have grown up calling it a seesaw.  I grew up calling it a teeter-totter.  It’s a board on a fulcrum; kids often try to bounce each other off it.  This activity may end in tears.)

A question for general contractors who have done Construction Manager as Constructor projects – have you ever received unfinished drawings at GMP pricing time and been asked for a ton of input at that point from the architect?  Did it feel like a bunch of someone else’s work was dumped on you?  

A tough question for architects – have you ever gotten stumped, busy, or lazy on a Construction Manager as Constructor project, and decided to ask the CM for technical design advice, on a question like the appropriate height of a roof curb or flashing, or the appropriate thickness of material for a metal door, or the proper type of paint for the metal bollards, instead of researching it yourself?  Do you realize that you were asking the CM to do some of your work for you?  (I have done that sort of thing myself, on one project.  I was young; I didn’t know what I was doing.  It was a mistake.)

The Right Party for the Job

Some CMs have the knowledge and the contacts to do a good analysis of what would be an appropriate design solution in a particular situation.  But my personal experience with CMs leads me to believe that many only analyze by cost, and many seem to just forward their questions on to their favorite subs.  If the question just goes to one subcontractor, there’s no analysis, just an answer driven by convenience and economics, not by a comprehensive look at what product or detail would be best for the owner, short term performance-wise, or long term performance-wise, or aesthetically.

On a project team, such as the kind we have under a CMc agreement, the contractor is the best person to answer questions about cost and schedule, and the availability of installers for systems and assemblies, but the contractor is not the best person to answer questions about specific products and technical construction details.

A good technically-minded architect (who understands building science, durability, product interfaces, assembly transitions, and building codes), someone who does not have anything to gain financially by recommending a particular product or solution, is the most appropriate person to explore solutions involving specific products and technical construction details.  Now, that architect (a firm’s technical director, or the firm’s construction specifier, in many cases) will be getting some of his or her information from people who do have products to sell.  But that architect ought to be doing independent research, and ought to be talking to more than one technical sales rep about more than one product for more than one possible solution.  The contractor, even a CM getting a preconstruction fee, might not do anything more than talk to one person about the question.  The CM is probably not the right party to do this research.


As I commented on Antony McPhee’s blog post, I do not doubt that IPD will make the construction industry more efficient.  But, I think it will not make aesthetic design better overall, and I think that worse aesthetic design, in general, will be bad for the built environment.  There’s also the ethical side of more-contractor-influence for owners to consider.  Under design-bid-build and CMc, when different solutions involve products and systems and assemblies that someone sells, the design professional doesn’t get a “cut” or percentage of that sale for specifying it on the project, but the contractor’s profit figure is always based on the cost of the project.  In a team relationship such as CMc, the design professional is supposed to be the party evaluating different solutions for their aesthetic value and their performance value over the life-cycle of a building, and the contractor is supposed to be the party evaluating these different solutions for their scheduling and cost issues and installer issues.  The contractor, because of the profit factor, should not be the only party evaluating different solutions.  Architects should not be taking direction from contractors on products under CMc.  What is the expectation under IPD?  Everyone designs!

Architects’ Fees

Sometimes, some architects dump some of their work into the laps of CMs.  But there’s that owner-architect contract and those general conditions of the contract that spell out the architect’s roles, responsibilities, and obligations, and that delineates architects’ fees.  Whether or not they actually accomplish all those obligations, whether the contractor is designing the roof-edge drainage system, or the architect is designing the roof-edge drainage system, the architect gets the fee for designing the roof-edge drainage system. 

Architects, do you plan to transfer more of this type of work in the future, under an ever more team-oriented agreement such as IPD?  Do you think that “teaming” means doing less of the work that architects have traditionally done, and getting the same fees?  Do you understand that if you keep giving away work, such as technical design work, you will keep receiving lower and lower fees over time?  Do you know what IPD may lead to in the future? 

Under CMc, the CM usually gets a preconstruction fee.  Preconstruction services are often a great value to a project and to an owner.  But that fee has to come out of the one project cost “pie” that the owner has.  When one party does less work, another has to do more work, and should be compensated properly for that work.  There’s one “pie” of one size.  The more work architects give away, whether contracted to do that work or not, the lower their fees should be.  Is this what architects want?  It’s not what I want.  

The Technically-Minded Architect

Architects, get, and keep, a technically-minded architect on your team.  In house, out-of-house, wherever, but keep this person under your umbrella.  Pay this person fairly.  You know you need him or her under design-bid-build, to reduce change orders and to preserve your reputation.  CMc can be a better value for the owner if the architect has this technical person on the design team.  Architects, if you want less erosion of architect fees under IPD, you need a technically-minded architect on your team.  If you don’t have people like this, and you want to start developing some, a good place to start is by getting some of your team members involved in CSI, the Construction Specifications Institute.  There are CSI chapters all over the United States.  Canada’s equivalent is the CSC, Construction Specifications Canada.   

Teamwork Summary

Demand that each member pull his own weight.

Put the right party on each task.

The right party to evaluate the suitability of products and assemblies and systems, without the influence of profit to gain, should be on the design team.  This will provide the best value to the owner.

Architects, if you don’t have one, get a technically-minded architect on your team.