Monday, August 5, 2013

Construction Contract Administration Via Email: The Recipe for Confusion

By Marvin Kemp, AIA, CSI, CDT
 
This is the second of several postings to The Felt Tips blog that deal with the umbrella topic of The Golden Rule: Do Unto Others As You Would Have Them Do Unto You. This post deals with the problems associated with conducting construction contract administration via email in the age of smart phones and other hand held digital emailing devices. The last post titled “The Message You’re Sending” dealt with the messages that you send in how you handle your business and more importantly the messages sent to employees of companies. In a couple of weeks, I'll present some thoughts on how attention to detail, or lack thereof, can affect your business dealings and the folks you hope to do business with.
 
Most of us involved in the construction industry have at some point received an email with the subject line “FW: (insert vague subject here)” and then the body of the email says “See below” with the sender’s signature line, probably followed by either “Sent from my iPhone,” “Sent from my Verizon Wireless 4G LTE Smartphone” or some similar signature. I seem to receive several of these a week if not several a day. I usually look at who the email was sent to in the “To:” line and am dismayed to see that it’s me, the engineers on our team, the client and several levels of the contracting team. Which one of us is to respond?
 
That’s always the $6M question: when 12 people are in the “To:” line, who is responsible for the eventual answer? If the question comes from the field, the superintendent or some other member of the contracting team, I usually assume that a member of the A/E team should provide the appropriate response. As I am the architect who usually holds the contract with the owner, at the onset of construction I always let the consulting engineers on the team know that I am to review any response prior to it going back to the contractor. This isn’t a control issue but a way for me to ensure that all issues are resolved and coordinated with other members of the A/E team. For example, a suggestion from the field to suspend the electrical transformer on Unistrut by drilling through the flanges of structural steel beams is easy for the electrical engineer to agree to, but I need to make sure the structural engineer accepts this damage to steel that he designed and specified.
 
The situation gets more complicated when one of three things happens. The first being the contractor forwards an email from the sub-contractor without fully reading or fully grasping the situation. I call this type of contractor either a “buck-passer” or a “paper-pusher.” That’s probably an unfair characterization because all general contractors are simply trying to finish their contracted work in the best and most judicious manner, but part of their duty to the owner is to fully understand all the issues circulating through the construction site and fully coordinate the work of all of their subcontractors. The example above with the electrical transformer and Unistrut actually happened to me recently. Unfortunately, this project was a tenant fit-out of an existing building and we do not have the services of a structural engineer on our team. If the contractor had taken a moment to look at the cover sheet of the drawings and see there is no structural engineer on our team or better yet call me, his response to the electrician might have been to consider a different attachment method. Instead, we had some back and forth through email and then finally we reached resolution only after I phoned the site superintendent to fully understand the electrician’s intentions.
 
The second complicating factor is when the body of the email below the “see below” comment is unclear. I recently became involved in a complicated issue surrounding a smoke damper. To be fair, I didn’t get involved early enough, choosing to let my engineer handle it, but all the team got from him was more questions. It was only when the owner phoned me to ask a very specific question about the building code and corridor walls, was I able to get to the bottom of the situation and answer the question for both the engineer and contractor.
 
Shame on me for not acting earlier, but I tend to be a creature of culture. This particular owner has severely limited our CA scope. They are seasoned professionals who choose to handle most issues in the field themselves. We are only contracted to review submittals, address RFI’s and perform a punch list at the end of the project. That has set the culture that at some point, the owner steps into the email fray and says, “this is what needs to happen” and the issue is resolved. I’m sure several nationally known bloggers are alternately cringing and spewing coffee over their screens as they read this. I do not like these sorts of contractual arrangements, but certain business decisions are made from time to time that I have to live with. I don’t like having our fee reduced or our influence during construction diminished, but it’s not always my call.
 
That is the third complicating factor: owner influence or obfuscation. Most of the work I do is for institutions of higher learning. Nearly all of them have architects, engineers and other construction professionals on their staffs which handle a wide range of issues and have opinions just as strong as mine in how the projects should progress and how situations should be resolved. The complication comes in when either standard AIA contracts or a reasonable facsimile of the same are used. The standard AIA contract assumes an unsophisticated owner who requires the advice and services of an architect to help negotiate the murky waters of design and construction. When an owner who is more sophisticated breaches their duties as prescribed in the AIA contract, a culture may be set that allows the contractor can circumvent the architect to suit his own needs.
 
That has happened to me on a recent renovation project. I received a change notification for an exorbitant amount of money to move sprinkler heads. As I eschewed email and spoke directly with the contractor I learned that as the ceiling grid was going in, the owner’s representative visited the site and directed the ceiling grid installation to move forward and the sprinkler heads would be moved later. This owner’s rep is very young and did not realize the ramifications of selecting the most expensive course of action. In most cases, shifting the grid less than 6” would have eliminated the conflicts. As I spoke with the contractor and portrayed my displeasure with being eliminated from the discussions, he realized an alternative solution. A minor change from 2’ by 2’ ceiling to 2’ by 4’ ceiling tile in certain locations would alleviate relocation of all but one or two heads. Unfortunately, it took an irate architect holding a “Come to Jesus” phone call with the contractor for the right decision to be made.
 
A worse situation is when the architect is excluded on purpose by a sub-contractor who has a prior relationship with an owner. On a different project but with the same owner and same young owner’s rep described above, I was pulled into a dispute between the general contractor and a sub-contractor who knew which buttons to push with the owner. The sub-contractor had exclusions in his bid that the general contractor did not catch on bid day. Rather than working it out one-on-one, contractor to sub-contractor, they both dug in their heels and the sub-contractor ordered a meeting on-site with the owner, the maintenance shop and the general contractor. The architect was excluded from this meeting and summarily blamed for the problem. The documents were clear but the inexperienced owner’s rep did not know this and the general contractor chose to avoid conflict and blame the person who was not in attendance. It took me several phone calls with the owner’s rep and the general contractor to solve the problem by pointing out the correctness of the documents.
 
These are a few examples that I’ve encountered recently. There are many, many others. Many of these problems can be avoided with a few simple ideas:
 
1.    Use the telephone whenever possible. Email and an RFI attachment can always be used to finalize the answer to all parties.
2.    Use email only for clear and concise communication.
3.    When email is used, make sure you completely read the entire message and understand the question before responding.
4.    When forwarding an email, make sure you have completely read the entire message for acceptability for all parties to read. It will save you or other team members embarrassment later.
5.    When email is the best solution, only include those who need to be party to the question and answer. The email blast and “reply all” is the scourge of humanity and tends to only create more confusion.
6.    When the architect and engineer are on-site, review every possible condition and question the contracting team has at the time. Make sure when you leave the site, you completely understand all conditions that affect the question and ultimately the answer.
7.    When a contractor knows the architect or engineer will be on-site, be judicious with their time. Make sure all sub-contractors are available to ask their questions or make sure you understand them well enough to discuss them with the architect or engineer.
 
Construction is confusing enough without adding to it via email. Design intent, incomplete documents, inaccurate bids and other items all add to that confusion. By adhering to these suggestions, many of the problems created by email can be avoided and the work allowed to move forward to everyone’s satisfaction.

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