Words: Paul Potts
Photos: Paul Potts, Sneksy
What is a Construction Defect? This question cannot easily be answered because there are such a variety of defects from defective materials and workmanship by the contractor to design errors by the architect-engineer. Simply making a list of defects would take several pages. What is more important is to know who is responsible for identifying design errors, non-compliant materials, equipment, or workmanship and which party must pay to correct it. The following overview should convince any architect or contractor of the benefits of collaboration.
Information in this article is not offered as legal wisdom. If you need legal advice consult an attorney in the state where the wrong occurred. Common law varies significantly from state-to-state.
SCOPE OF CONTRACTOR’S WORK
The scope of the contractor’s work is described in the bid division description, Related Documents and Summary paragraphs at the beginning of each specification Section, prebid addendums, and prebid meeting minutes. The contractor is responsible for performing their work in accordance with the plans, specifications and other contract documents and in accordance with applicable building codes, and best standards of the trade.
AIA DOCUMENTS REFERENCED IN THIS ARTICLE
AIA contract documents referenced in this article are AIA B132 – 2009 Owner-Architect Agreement and AIA A201 2007 General Conditions. While AIA standard form agreements are favorable to the architect, they are the most widely used and the most integrated standard form contract documents in the construction industry.
Quotes from the AIA general conditions and AIA owner-architect agreement are sometimes followed by a typical circumstance that corresponds to the quoted paragraph.
CONTRACTOR NOT RESPONSIBLE FOR COMPLIANCE OF DOCUMENTS
Document A201 ™ – 2007 General Conditions of the Contract for Construction
In accordance with paragraph 3.2.3 the contractor is not required to ascertain that the contract documents are in accordance with applicable laws, statutes, ordinances, codes, rules, and regulations or lawful orders of public authorities, but the Contractor shall promptly report to the Architect any nonconformity discovered by or made known to the Contractor…
Regardless of paragraph 3.2.3, most specification sections are supplemented in Part 1 of each Section by performance clauses requiring that the contractor’s work must conform to building codes or other industry standards. For example, electrical components and installation must comply with NFPA 70 and 72, and air terminal units must comply with ASHRAE 62.1. According to the Concrete Section 033000, the concrete contractor must employ on the site an American Concrete Institute (ACI) Certified Concrete Flatwork Technician. Masonry construction must comply with TMS ACI 530. These are called performance requirements incorporated by reference because the whole substance of the requirement is not printed verbatim in the specifications. It is expected the contractor will have copies of the referenced document in their office library.
For example, on a high school addition, the floor elevation of the new and existing buildings did not match. The difference was not discovered until after the floors of the addition were placed. The contractor for the first time punched a hole through the existing building wall and discovered the discrepancy. The architect failed to determine that the floor elevation on the existing building drawings did not correlate with the actual height of the building. The architect-designed a ramp in the corridor to bridge the differences in elevation and negotiated the cost with the owner.
ARCHITECT’S SITE VISITS ARE NOT REQUIRED INSPECTIONS
Document A201 – 2007 General Conditions of the Contract for Construction
In accordance with paragraph § 4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction, or as otherwise agreed with the Owner, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine in general if the work observed is being performed in a manner indicating that the work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.
THE ARCHITECT IS NOT RESPONSIBLE FOR THE WORK OF THE CONTRACTOR
Document A201 – 2007 General Conditions of the Contract for Construction
In accordance with paragraph § 4.2.2 the Architect will not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor’s rights and responsibilities under the Contract Documents.
ARCHITECT’S INSPECTIONS
Document A201 ™ – 2007 General Conditions of the Contract for Construction
§ 4.2.9 The Architect will conduct two inspections to determine the date or dates of Substantial Completion and to determine the date of final completion.
The architect is only required to make two inspections of the project. One inspection is to establish a date of substantial completion and the other is a final inspection after occupancy when the owner has occupied and used each space for its intended purposes. The owner’s occupancy is thus the most thorough inspection.
ARCHITECT NOT RESPONSIBLE FOR CONTRACTOR’S WORK
AIA B132 2017 Owner-Architect Agreement
In accordance with para. 3.6.1.2 The architect shall not have control over, charge of, or responsibility for the construction means methods, techniques, sequences or procedures, or for safety precautions, and programs in connection with the work, nor shall the architect be responsible for the contractor’s failure to perform the work in accordance with the requirements of the contract documents. The architect shall be responsible for the architect’s negligent acts or omissions, but shall not have control or charge of, and shall not be responsible for acts or omissions of the construction manager or the contractor or of any other persons or entities performing portions of the work.
CONTRACTOR IS NOT RESPONSIBLE FOR ARCHITECT’S FAULTY DESIGN
The contractor is not responsible for building a non-compliance matter into the work if it is clearly shown in the construction documents and the contractor builds it according to the documents without knowledge that it is wrong.
For example, the engineer’s drawings showed fire alarm pull stations at some exits but not at every exit. The National Fire Protection Association code NFPA 72 cited in Specification Section 283111, Summary of the fire alarm specification requires the installation of the fire alarm system to comply with NFPA 72 and all applicable codes and ADA requirements. To comply with NFPA 72 there would have to be a pull station at every exit. The electrical contractor brought the issue to the attention of the architect asking to be paid for the pull stations that were not shown on the drawings. The contractor was directed to install all the pull stations required by the code whether shown or not. No change order would be issued because the number of required pull stations is common knowledge in the electrical trades.
In another example of the architect’s error in the documents, the footing dimensions would not close the perimeter of the building. Fortunately, this was discovered by surveyors before the foundations were poured.
AESTHETIC EFFECTS
Document A201 ™ – 2007 General Conditions of the Contract for Construction
4.2.13 Aesthetic Effect: The Architect’s decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents.
The defect may be a matter of aesthetics, appearance, or coordination with adjacent structures. The architect may reject the mason’s work if it does not meet the common standards of the trade. For example, the mason’s work may be rejected if masonry joints are as thick as a cigar in one part of the wall and as thin as a cigarette in an adjacent part of the wall.
PUDDLES IN THE PAVILLION CONCRETE
Project Standards ACI 117 “Specifications for Tolerances for Concrete Construction Materials” and ACI 302 .1R.” Guide for Concrete Floor and Slab Construction.”
The project was a covered recreational pavilion. The dimensions of the concrete slab were 120-ft. by 40 ft. The 4-inch, reinforced, 4000 psi concrete had a leveling allowance of 1/4-inch in ten feet in accordance with ACI-117. On the day, the concrete was placed, the general contractor had a substitute superintendent onsite and the architect’s representative was not scheduled to be at the site.
The first time it rained after the concrete work was finished large bodies of ponded water were observed measuring deeper than 1-inch.
The owner’s representative notified the general contractor of the defect and provided a letter from the owner rejecting the slab and requiring that the concrete be removed and replaced. Due to the thirty-eight columns set in the slab, it would not be an easy task to renovate. The owner impounded $35,000.00 to ensure the work was done correctly. Several meetings followed where the general contractor argued that the defect was not worth the cost of correction. The owner counter-argued that they did not want to be squeegeeing water off the pavilion floor every time an event was planned, and it rained. The contractor removed and replaced the concrete.
THE ARCHITECT IS RESPONSIBLE FOR ERRORS AND OMISSIONS
The architect is responsible for the owner-client defects that result from errors and omissions in the construction documents.
A design defect occurred in the plans and specifications for a high school auditorium lobby ceiling. The space above the ceiling served as a return air plenum and the ceiling should have been designed in compliance with ASTM E-84 and ASTM E119, which it was not. The ceiling was constructed out of compliance and was later rejected by the building inspector. In this case, the design team awarded the contractor a change order for removal and replacement of the ceiling. The architect was left to negotiate the cost with the owner.
CONSTRUCTIVE COLLABORATION
Constructive collaboration fosters creative problem solving and generates extra value for the collaborating parties. The designer gets a firsthand look at how the design intent is being interpreted by the contractor and the contractor gets access to the designer’s advanced knowledge of the construction documents to resolve issues of interpretation before they interfere with the progress of the work. While the architect experiences some risks by having a conversational interaction with the contractor during site visits, risk aversion by avoidance is hardly a better management tool. Each has the knowledge to offer the other that will smooth the way for the contractor to avoid slowdowns waiting for answers from the designer and for the architect to avoid costly design mistakes or sloppy work from being built into the project. https://www.pauljpotts.com/collaboration-between-architect-and-contractor/
OBSTACLES TO COLLABORATION
Making conditions favorable for design professionals and contractors to collaborate during construction requires the parties to come to grips with forces that mitigate against it. These forces are social, contractual, and financial. Sometimes resentment explains the contractor’s destructive contempt for design professionals but architects feed this contempt by refusing to make positive contributions that would facilitate the contractor’s work.
The architect and the contractor are put at odds at the outset by the adversarial nature of the owner-architect agreement and general conditions. This arrangement benefits the owner but sets the architect and contractor on a path to conflict. Only by conscious effort can the architect and contractor put aside their contractual conflicts and form a partnership of constructive collaboration. https://www.masonrydesignmagazine.com/design-intent-and-constructive-collaboration/
CONSTRUCTION IS A CONTINUATION OF DESIGN BY OTHER MEANS.
Project design is a continuum from schematic design until final occupancy. During construction, the construction documents are put to the test. Errors are found and corrected, missing parts are discovered and added, code inspectors comb the building for compliance issues. Each of these steps is the implementations of the design development phase of the project. Occupancy is the final punch list. The client occupies and gives use to every part of the project for its intended purpose. Only once the client accepts the building can it be said the project has fulfilled the design intent. https://www.constructionspecifier.com/construction-collaboration-to-achieve-design-intent/