ConstructionPro Week, Volume: 3 - Issue: 4 - 01/24/2014

Is It Too Late to Complain About the Specs?

By Bruce Jervis

 

Contractors frequently have complaints about the contract specifications. The specs are vague, contradictory, or unduly restrictive. Sometimes contractors request additional compensation for complying with the project owner’s interpretation of the specifications. The law, however, follows common sense. The time to question the specifications is before one commits to the contract.

 

On competitively bid public works contracts, the time to question the specifications is prior to submitting a binding bid. A contractor cannot remain silent, submit a bid, and then complain that the specifications are flawed. Unless the flaw is latent – so subtle that it could not be reasonably detected – the contractor must call the issue to the attention of the project owner.

 

A recent example arose on a federal construction project. The contractor argued that a specification was tantamount to an impermissible sole-source spec. The contractor demanded additional compensation for purchasing an HVAC digital control system from that source. The administrative board said it didn’t need to rule on the question of a sole-source specification. The time to challenge the spec had been prior to bid submittal. It was now too late. The contractor was required to comply with the specification at no additional charge.

 

Do you agree that contractors should share responsibility for the adequacy of the specifications? Or, do you believe that project owners and their design professionals should bear the full brunt of any shortcomings? What are your practices regarding pre-bid review of the specifications? I welcome your comments.

 

COMMENTS

The A/E design process usually takes a year or multiple years to bring the project to bid. The Contractor is given three or 4 weeks to reivew and prepare his bid. As thorough as we try to be, it is unrealistic to expect that Contractors or specialty trades will be able to detect and report every error, inconsistancy, and contradiction. The onus should be on the A/E to be clear, complete, concise, and consistant.
Posted by: Craig Fisher - Friday, January 24, 2014 10:44 AM


Of course! Owners, Contractors, AEs all share responsibility for specifications. That said, Owners need to be somewhat flexible if they don't maintain their specs and/or use boilerplate specs. Unfortunately in the many instances, specs are indeed boilerplate. In the fed sector UFGS and/or MASTERSPEC are typically used. Some owners/site customize specs for their location and some do not. For JOC (job order contracting) / IPD and other collaborative construction delivery methods, specifications are...or should be integral to the contract. www.4Clicks.com


Posted by: Peter Cholaks - Friday, January 24, 2014 11:02 AM


I have been at this for 48 years and it has been only the last 10-15 years that I have seen the trend for the A/Es not to want to take any responsibility for their design/ specifications. In the "old" days everyone owned up if they made a mistake. Now days if there is a mistake in the drawings or specifications, we, as contractors, are expected /required to point out their mistakes and then we have to end up paying for their mistakes as they determine that we should have known better. We are not engineers and designers, we are installers who try to follow the drawings and specifications as written. I have found more mistakes in retrofit projects than I can count because the A/Es did not due their work or actually looked at the project site to see the actual conditions. We have to end up field engineering and routing to install our work. Outdated specifications, salesman pushing their products not necessarily meeting the clients objectives then wanting the contractor to verify that he has installed the equipment as specified, knowing that the equipment was not right for the proposed service. Add to that the lawyers who help write the specifications special conditions or modify the AIA specifications to indemnify the A/E and put all responsibility on the contractor for making the project work. I have been on the other side as an owner and have had A/E contracts where the A/E wants the owner to pay for any errors and omissions that they make. No one wants to be responsible any more.I am glad I will be retiring soon as I have seen many changes over the years and a lot of them are not good.
Posted by: B. Halderman - Friday, January 24, 2014 11:11 AM


It is way too much to think the A/E specs are perfect even if the design process took a decade.Sometimes the sole source requirement comes from the Owner and cannot be changed.Granted the A/E onus should be CCCC, but is there any responsibility for the contractor to be responsible ,or we to expect him/her just to figure it out as an extra CO and think that old line is going to work again and again and again. Too much blame that does not need to be if everyone does their job within standards of the industry.
Posted by: Don Godi - Friday, January 24, 2014 11:13 AM


The description notes an "impermissible sole-source spec". Was this in conflict with the applicable federal law? Is the contract provision enforceable if it does not comply with the law? I believe the government can allow a sole-source (proprietary) specification if it is "in the best interests of the government"? Also, I believe the A/E can require a sole-source specification if they believe it's necessary to comply with their responsbility as the design professional.
Posted by: M. Quinn - Friday, January 24, 2014 11:23 AM


I feel the owner/engineer should bear a large share of responsibility. More and more engineers are failing to do the proper field investigations and rely on as built drawings and google earth for design purposes. Over the last decade there has been a shift from Owner/engineer supplying clear specs and drawings to the contractor bidding and installing projects. Then depending on the owners interpretation of the specs during construction. I would agree that the most fair and cost efficient approach is a well planned and designed project with specifications written to do more than indemnify the owner and engineer from responsibility .
Posted by: Gary Gray - Friday, January 24, 2014 11:26 AM


If engineering firms spent as much time getting the specifications and plans right as they do beating the contractors up for obscure differences in their opinions the construction industry would not be going through this mess. I get the sole source for private projects, sometimes its just a matter of comfortably and trust with a team. However, in State and Federal projects this seems to be just as bad. Construction Documents are not a Schematic Design nor are they considered Design Development. They are the last stage of the design process meant to provide a lump sum price from a contractor to obtain the necessary permits and construct the project. Now we have a word that floats through specifications and plans called "diagrammatic". Dictionary.com defines diagrammatic as; in the form of a diagram; graphic; outlined. An outline is what you use to start a project to insure you have done everything. I hardly consider "diagrammatic" as a final stage.


Posted by: Michael Carr - Friday, January 24, 2014 11:39 AM


I am working on several Veterans Administration projects now and the control system is sole source and so are some of the equipment items. It's in the bidding specs and they produce documents in the specs letting you know it is sole source items. Sometime the end user is not happy with this either but have no say in the specifications as the control system is so imbedded that it would be a logistic and monetary nightmare.
Posted by: bhalderman - Friday, January 24, 2014 11:39 AM


When we put a project out to bid we believe the specification is adequate and complete. If a potential bidder finds a discrepancy in the spec during the estimating process, our expectation is the bidder will point out the issues at hand prior to bid opening and if necessary we will correct the discrepancy through an addendum. After award, any latent errors or omissions caused by inaccurate specs are owned up to and handled accordingly by the owner. On the other hand, a contractor that attempts to dissect the spec in the field for the purpose of creating change orders, now that's a problem.
Posted by: Chris Akers - Friday, January 24, 2014 11:49 AM


As an architect, coordination is one of the biggest problems for A/E firms. The design process is not linear or as direct as construction...meaning is not as easy as it sounds to make sure the specs are "right". Design changes, value engineering, inaccurate info from vendors and suppliers, size and complexity of projects, overly restrictive design schedules, etc. all contribute as do errors and other factors. The matter is magnified in DBB projects by the simple nature of the procurement method. Over the years, I have come to really respect good contractors in situation where each party remains responsible for their work, but have the opportunity to collaborate to capture the expertise each party has to offer at the right time. At the end of the day, the Architect is there to help the GC construct a quality building for the customer. Any design or construction company with a long view wants happy customers, profitable projects and repeat business or referrals. This is issue is further evidence that DBB and similar procurements make lawyers wealthy and leave the rest of us fighting with each other rather than working together to achieve good results.
Posted by: Marshall Wilson - Friday, January 24, 2014 1:01 PM


I have worked in consulting for over 35 yrs and now in contracting fo the past 10yrs. I agree you need to question the spec before you submit a bid. If not you are subjected to the owners interpetation you will lose most times. Problem is most contractors do not have enough time during the bidding process to have an RFI answered before the bids are due, Especially when documents come out with a three to five day turn around. We as contractors are not that good to read the minds of the owner in that short of time and that is where I see the most conflict.
Posted by: Walt Mager - Friday, January 24, 2014 1:28 PM


The spec writers I know do their best to publish clear, concise, complete and correct documents. It is never in their interest to do less. Many design decisions are influenced, if not decided, by Owners and not the A/E or the spec writer.

The contractor's responsibility is to read and understand the specs prior to submitting a bid. The signed contract usually so stipulates.

The appropriate time to raise questions is pre-bid, perhaps at the pre-bid meeting, which most large projects have. Those questions can then be answered in an Addendum.

Should questions arise after a contract is signed (yes, it can happen for a multitude of reasons), they should be brought to everyone's attention in a non-adversarial manner. As was pointed out above, all parties should be trying to produce the best solution!


Posted by: Lynn Javoroski FCSI CCS - Friday, January 24, 2014 2:25 PM


The industry must improve their specifications. Young designers do not have the training to write adequate specifications. Training does not occur at the college level. Designers need input from the contractors on what are good and bad specifications. Having standard specs such as Masterspec don't do us much good unless you understand what they mean. I am all for online courses, webinar training, ASCE sponsored or college level courses that teach fundamental specification preparation - especially for civil engineers. If any knows something out there please let me know!
Posted by: Pete Rigby - Friday, January 24, 2014 3:43 PM


On competitively bid public works contracts, project owners and their design professionals should bear the full brunt for the adequacy of the specifications and any shortcomings. In the event an inadequacy or shortcoming is manifest at the time a contractor prepares its bid, the owner must be immediately notified. The notice should be consistent in form and content with any applicable requirements within the bidding documents, limited to a statement of the apparent inadequacy or shortcoming, and include a request for clarification from the owner prior to bid submittal. This will place the brunt of unforeseeable effects arising from the inadequacy or shortcoming and the clarification upon the owner.
Posted by: Richard Bull - Friday, January 24, 2014 6:15 PM


Both parties need to ensure the specifications are met. The designers must ensure that the contractors are perfectly advised of the specifications. A pre bid conference meeting where contractors are advised of all terms that may affect the contract price. What I would call the small print/salient features of the specification. The contractors need to invest the necessary resources to read the entire specification and if need be issue as many caveats as necessary when providing a price
Posted by: Andrew - Saturday, January 25, 2014 12:50 AM


There is no indication of inadequacy of the specifications in the description of the case. Public procurement does allow for sole source specifications, when there is a legitimate reason. HVAC controls are a perfect example. Can you imagine any Owner, including a government Owner, managing any number of buildings without a consistent Building Automation System (BAS)? For this reason, public entities typically have a separate, public and competitive procurement for the BAS. The resulting BAS contract period could last for decades, since the BAS for multiple buildings involves an expensive and complex assembly of communication equipment, servers, operators, maintenance staff, training... Once the BAS is established, the Owner then provides the necessary BAS spec for their future buildings. While the HVAC digital control industry has recently made some attempts of compatibility, there are still many systems that must use proprietary equipment. If the Owner of multiple facilities had to accept a collection of different manufacturers' pieces and parts, based upon what it building Contractors chose to supply, it would not be able to manage the systems of the facilities afterward.

HVAC digital controls are a major component in the specifications. From an Owner's perspective, it is difficult to imagine how a General, Prime or Sub-Contractor could miss such a specification in the bidding process, if they actually read the specification during the bid process.
Posted by: JB - Monday, January 27, 2014 7:12 AM


Asking questions are truly good thing if you are not understanding something entirely, except

this piece of writing gives fastidious understanding even.
Posted by: Hubbs - Sunday, May 04, 2014 7:07 AM


 









WPL
PUBLISHING CO, INC.
WPL Publishing - 5750 Bou Avenue #1712 - Rockville, MD 20852

Phone: (301)765-9525  -  Fax: (301)983-4367

All Content and Design Copyright © 2022 WPL Publishing
About Us

Contact Us

Privacy Policy

My Account