ConstructionPro Week, Volume: 3 - Issue: 11 - 03/14/2014

Does Pre-Bid Clarification Shift Design Risk to Contractors?

By Bruce Jervis

 

The rule requiring pre-bid clarification of obviously ambiguous documents is founded in fairness and common sense. If a bidder is aware, or should be aware, of a mistake, contradiction or omission in the drawings and specifications, the bidder should not be allowed to financially exploit the error. The bidder must call the matter to the attention of the project owner prior to bid submittal. If the bidder fails to do so, it will not be allowed to recover extra performance costs necessitated by the owner’s interpretation of the design documents.

 

Problems arise, however, when it is a close call as to whether an ambiguity is patent – or obvious – as opposed to latent – or subtle. Bidders are not expected to be design experts. After all, it was the project owner that commissioned the design.

 

An example was found on a recent federal project. The drawings showed ladder cable runways, suggesting a point of origin for telecommunications cabling, in two different rooms. The specifications spoke once of a single communications equipment room but then referred to rooms in the plural. The government directed a single point of origin for cabling. It was held that there was a patent ambiguity in this regard and the contractor should have sought pre-bid clarification.

 

Is it fair to require bidders to scour design documents this closely? The rule seems reasonable when the ambiguity is truly blatant. But if interpreted too broadly, does it shift the risk of design errors away from the project owner and place the risk with the contractor? I welcome your comments.

 

COMMENTS

Like many disputes: it depends. How big was the project? If this element was the centerpiece of a relatively small project, and it was unclear whether there should be one or two points of origin, that seems pretty obvious (patent). How much scouring does it take to tell 1 from 2? or to ask what appears to be a simple question?
Posted by: Michael E. Peters - Friday, March 14, 2014 10:42 AM


If the error is "blatant" why is it still on the bid documents? This is pure design negligence.

If owners want the documents cleaned up prior to bid, perhaps they might consider paying contractors who bring this stuff up prior to bid and whack the design team fee accordingly. As it stands now, owners are benefiting from no-cost design review.

Tell me how fair that is.
Posted by: Bob Polwarth - Friday, March 14, 2014 10:46 AM


The General Contractor should never be held responsible for design errors unless the design was completed under the GC's scope of work like on a design build project. The fact is many mistakes are pointed out prior to bids but given limited times on hard bid projects the GC should hold no responsibility for design errors that are not caught by the GC or its subcontractors prior to the bid.

If a desingn mistake results in an add cost, but that cost would have been required if it was correctly on the drawings to begin with, the cost should be solely that of the Owner. If the design mistake results in additional cost to the project due to changes required to completed work, the Designer / Architect / Engineer should be solely responsible for that cost.

General Contractors already bare enough responsibility on projects, and to stay cost effective the design responsibility on hard bid projects need to remain with the Owner and Design Professionals.
Posted by: Mark Helman - Friday, March 14, 2014 11:14 AM


Designs will never be perfect and totally clear, so the responsibility is being shifted to the contractor since the owner does not want any extra costs from change orders. For the "low" bid to be awarded the job, the contractor cannot cover every ambiguity in the bid documents. I feel that the owner should bear the responsibility of the ambiguity in the documents but not errors in the documents. Errors are the responsibility of the designer. Contractors are being stuck with no cost design review, which is not fair. Many documents now attempt to make the contractor responsible for everything needed, even if not shown. The pendulum must swing back to fairness to the contractor.
Posted by: Dennis M. Enns - Friday, March 14, 2014 11:23 AM


As usual, in articles of this type, the lack of detail prevents us from understanding the particular inconsistency in the specs (and thus, whether the ambiguity was such that is 'should have' been noted by the bidders).

The article states: "The specifications spoke once of a single communications equipment room but then referred to rooms in the plural. "

This suggests (without more information) that the error was simply an errant "s" at the end of a word somewhere within the text of the specification. If so... and considering most people reading the specs would either scan over that one letter, or figure it was a typographical mistake... it would not appear to be something a bidder 'should have' discovered and brought to the attention of the designers (who are presumed responsible for proof-reading their own materials).

It would be nice to get some additional information on the specifics of the 'error', how simple or difficult it would be to notice it, and how the 'judgment' was arrived at (that the bidder should be held responsible).

Otherwise we can only speculate...
Posted by: howard i. littman, aia - Friday, March 14, 2014 11:50 AM


The first question in answering this question is what form of agreement and general conditions are being used for the contract? The AIA A201 states that the contractor must visit the sites and become generally familiar with the local conditions and compare that with the contract documents. By executing the contract they represent they have done this. It also states that the contractor must "carefully study and compare the various Contract Documents relative to that portion of the Work" But in the same paragraph that this review is not for the purpose of identifying errors, omissions or inconsistencies, but if found it must be reported to the architect.

The next question is what did the drawings say? Since there were two rooms shown a responsible cabling contractor would know that cabling would originate from two rooms, especially if the floor plate was large enough to exceed the permissible lengths for cabling.

Also the AIA documents say that the drawings and specifications are complimentary. What is required by one is required by both. If there is a question then ask. Problems arise when owner’s try to set precedence with the Contract Documents that one takes priority over the other. The documents cover different material and one is not more important than the other. Drawings show locations and quantities and the specifications give the qualitative requirements for the materials.

I feel that with the limited information given a qualified cabling contractor would have known the requirement for two rooms.


Posted by: Neil Davison, RA, FCSI - Friday, March 14, 2014 11:57 AM


place the risk with the contractor, No way! design negligence. Pay me now or pay me later.

If I need to do your design, I will get payed for it.
Posted by: T.Kehl - Friday, March 14, 2014 12:07 PM


Gentlemen:

Here ya go Mr. Littman. Google this: "MCCANN_01-24-14_3443__GOTTFRIED_CONTRACTING_LLC.pdf" w/o quotes.
Posted by: Richard Bull - Friday, March 14, 2014 1:05 PM


We can identify with Bruce's example as all we do is Federal Construction Contracts. We have noted a disturbing trend in these contracts of poor attention to details and lack of design reviews and cross checking of drawings with specifications. This occurs with both agency designs and the ones the contract to AE firms. We recently experienced a contract designed by a large national engineering firm the 40% through construction the pending contract modifications exceeded the COs authority to execute the mods, they exceeded the original contract price. The CO admitted that the Gov was liable for design deficiencies though. Another example was a solicitation where during the bidding phase contractors identified errors resulting in 120 RFIs, 75% of the 130 drawings replaced, 6 specification sections deleted, and 10 specification sections added. I would never hire that designer for one of my D-B projects.


Posted by: Ronald Vietmeier - Friday, March 14, 2014 11:14 PM


We can identify with Bruce's example as all we do is Federal Construction Contracts. We have noted a disturbing trend in these contracts of poor attention to details and lack of design reviews and cross checking of drawings with specifications. This occurs with both agency designs and the ones the contract to AE firms. We recently experienced a contract designed by a large national engineering firm and 40% through construction the pending contract modifications exceeded the COs authority to execute the mods, they exceeded the original contract price. The CO admitted that the Gov was liable for design deficiencies though. Another example was a solicitation where during the bidding phase contractors identified errors resulting in 120 RFIs, 75% of the 130 drawings replaced, 6 specification sections deleted, and 10 specification sections added. I would never hire that designer for one of my D-B projects.


Posted by: Ronald Vietmeier - Friday, March 14, 2014 11:16 PM


 









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 © 2018 WPL Publishing
About Us

Contact Us

Privacy Policy

My Account