For residential, single-family construction, where the architect has clearly named all the PME systems that will be in place, can the GC legally claim that they didn't budget for something in their final, contracted construction bid because there was not enough detail in the sealed permit drawings (the drawings on which they based their contracted construction bid), and hold the architect liable to pay subsequent construction change orders?
In my reasoning, If the GC has reviewed the plans and are basing their contracted construction cost on those plans, then they are responsible for noticing omissions of detail and asking clarifying questions before they sign a contract with a client. Effectively locking themselves into THEIR omissions.
Also, does anywone know where I can find the state laws that cover this issue? I'm in North Carolina.
Thank you so much! Working toward understanding! Mark
Chad Miller
Sep 25, 20 10:24 am
First off I am assuming the items the GC didn't budget for was the PME system and that in fact that system was not already in place?
Look at the contract. If you don't have one you're in for a legal battle.
Look at the drawings and specs - dose it say that the GC is to verify that the PME system was installed?
Markytect
Sep 25, 20 10:30 am
This was new single family construction. The plumbing system was generally described with a note saying that the plumbing contractor needed to design the system and install per code.
Jay1122
Sep 25, 20 11:05 am
That sounds really weak. I would do a dedicated sheet showing some basic schematic routing and big text for the Contractor to coordinate and provide final system design and installation. No way anyone can argue they did not see that. And it is always better if you can have Contractors on board during design and documentation. Offer their insights and experience.
Chad Miller
Sep 25, 20 11:16 am
If that note was on the drawing then the GC was informed and is responsible for the missed system.
In the future a note like that should have a line added to it stating that the plumbing sub will provide a design to the architect for coordination purposes.
Jay1122
Sep 25, 20 11:30 am
Chad, My first firm did a lot of public small reno works that deals with these scum bag GCs with no integrity. Trust me, those nasty contractors will not accept a tiny note on one of the sheet as acceptable defense. Even by basic logic that it is clearly indicated with a text call out note. Had an old architect told me a GC used poor spelling in drawing trying to discredit the architect's work in court. They try all kinds of nasty shits. In this case, the GC argues not enough details was provided to establish actual scope for bid price. The GC will probably say he saw the note, but it is too little and generic, can't provide a price on that, so we did not provide one during bid.
That is why I want to work on big projects with nice GCs that does not nickel and dime every time they see the chance. But so far, even the GC for 50m ground up is still scum bag. Maybe design build or private sector is the way to go.
Chad Miller
Sep 25, 20 1:21 pm
Doesn't matter. CD's are a contract and a single note on a set of CD's is enough to legally bind the GC. The GC may not accept it but the courts will. Obviously you need to make things clear in your CD's so the GC won't miss it as no one wants to go to court however that doesn't change who's legally responsible in this situation - the GC.
On a side note the size of the project / GC, project delivery method, or public vs private sector has no impact on the honesty of the GC or their desire to get all the available payment out of the owner. You simply don't know what you don't know.
Markytect
Sep 25, 20 10:28 am
Another way to ask this is:
Isn't it up to the GC to ask for more drawing detail than what is required for permit? Because the GC needs a lot more info than what's in permit drawings to create an accurate bid.
Everyday Architect
Sep 25, 20 1:44 pm
Depends on what they've been instructed to do for bidding. Perhaps they assumed in your situation that the owner was going to secure a design-build plumbing contractor under separate contract. Was the GC given any bidding instructions to indicate that they were responsible for the plumbing scope? Your note apparently called out the "plumbing contractor" and indicated their responsibilities to design and build the system. You can see that if the GC assumed that contractor would be hired separately that means they don't have any scope for that work, except for maybe some coordination, and hence why it was left out of their bid. If that was the case, maybe the level of detail was fine for what they understood and they wouldn't need to ask for more drawing detail.
awaiting_deletion
Sep 26, 20 1:32 pm
Markytect I have a exactly that note on all my drawings, hold on -
- WHERE NEW WORK IS REQUIRED AND IT CONFLICTS WITH EXISTING STRUCTURAL, MECHANICAL OR CODE LIMITATIONS, THE CONTRACTOR, BUILDER, OR THOSE IN RELEVANT OR CONTINGENT TRADES SHALL INFORM THE OWNER AND ARCHITECT OF SUCH, PRIOR TO PROCEEDING WITH SUCH WORK.
- CONTRACTORS SHALL INDEMNIFY AND HOLD HARMLESS THE OWNER, AND THE ARCHITECT AGAINST ALL EXPENSES AND ATTORNEY'S FEES AND ANY LAWSUITS OR ACTIONS ARISING IN WHOLE OR IN PART FROM ANY ACT OR OMISSION BY THE CONTRACTOR, OF THE SUBCONTRACTOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THE OWNER.
- THE SUBMISSION OF THE CONTRACTOR'S BID IMPLIES THAT ALL DRAWINGS, SPECIFICATIONS, AND NOTES HAVE BEEN READ, UNDERSTOOD AND INCORPORATED AS PART OF THE BID AMOUNT.
I can't find the one that basically says "CONTRACTOR IS TO INFORM ARCHITECT OF ANY DISCREPANCIES OR MISSING INFORMATION IN THE PLANS."
apscoradiales
Sep 25, 20 10:48 am
All things being equal, and this being new construction rather than renovation, it is normal for the GC to qualify his bid by pointing out why he did not include some items.
If it's a reno, it's sometimes difficult to see what's in a wall until you start demolishing it. If it's a question of drawings and specs being ambiguous he would than say, "I couldn't price this or that because there was no information there". During the bidding process, GC's are allowed to query the architect on those items until the bid is submitted. After that, unless the GC says in his bid, or qualifies it, that something is not included, he is on the hook.
We have sometimes done jobs where we would say qualified bids will be considered invalid, and will be discarded.
So unless the GC has questions during the bidding process, and gets satisfactory answers, everything is included, and no extras will be entertained (unless of course initiated by the Owner or the Architect/Engineers).
Up in Canada we have standard CCDC (Canadian Construction Documents Committee) documents that are used in the bidding process. Those are sometimes amended or modified as per Supplementary Conditions. Do you have something like that in NC, and if you do, did you use them?
What exact "instructions" besides drawings and maybe specs did you give to the bidding contractor(s)?
Read them, and see what they say. If you don''t any additional documents and the drawings/specs are little bit questionable, you are then on thin ice.
Legally speaking, verbal instructions are acceptable by the courts just like written ones, but they are far more difficult to prove. That's why if it does not say it in the Contract Documents, then it is not included.
Also, keep in mind that the Contractor is not there to check or correct your drawings or specs; they are there to build as per the instructions you give them.
Jay1122
Sep 25, 20 10:48 am
PME system? As in MEP? Mechanical, Electrical, Plumbing?
Just my opinion. Not having detail drawing is not the reason that it can be dismissed. As long as you have clearly indicated the items and scope. Of course GC will argue how poorly you indicated the scope. Like a general note in the text group calling for those systems to be included in bid is really weak. It is especially true if it is a manufactured product. Some times you just call out GC to provide the Blah blah product by blah blah company. And supplement it with spec. You don't really need detail drawings if you don't think it is necessary. This is Single residential house, its private sector. Shouldn't you guys communicate more and negotiate prices and such? And MEP? how do you miss those? I know in small res project architects don't usually do mechanical or hire engineer. You work with HVAC subs to figure out the routes and system.
Chad Miller
Sep 25, 20 1:34 pm
There are many things wrong with this statement. However it is rather ridiculous to miss that the GC has nothing in their bid for plumbing.
Non Sequitur
Sep 25, 20 11:11 am
something missed by the comments above me...
are you suggesting that the arch is on the hook for the cost of the omitted items? Like, shit, we did not bid for the HVAC, arch, give us 10K? Your client is the one responsible to pay for construction costs not the arch...
Jay1122
Sep 25, 20 11:23 am
LOL sharp eyes. If he is like you, I doubt there will be this situation. Anyway, I think he meant architect is liable to approve the change order request because of the missed detail. I doubt he is the architect if he does not even know these.
wurdan freo
Sep 25, 20 11:38 am
def sounds like a homeowner who went with the cheapest cost on the drawings (less details and coordination) and cheapest contractor ( business model = bid low and change order in to profitability)
Non Sequitur
Sep 25, 20 11:40 am
wurdan, this definitively reads like it's the homeowner looking to get a free lunch.
Wood Guy
Sep 25, 20 12:58 pm
It does sound like that. Design contracts should include a limitation of liability to the amount of the design contract, or something along those lines.
wurdan freo
Sep 25, 20 11:38 am
All depends on the contracts.
mightyaa
Sep 25, 20 1:23 pm
Yep. btw; for omissions IF it was my responsibility... I absorb the cost of the design, not construction costs. My contract is for the design, therefore that is all I'll cover: I correct my work. Normally, MEP isn't in any of my residential contracts, just intent of the system like fixtures and outlets and some mechanical chases.
proto
Sep 25, 20 12:03 pm
"Can the GC claim they didn't budget for something listed in the contract docs?"
Yes, it happens all the time.
It means the due diligence background check on the GC was insufficient; the received bid review was insufficient; and now you are partnered with someone who isn't a good build partner for your project.
Cut bait or work it out.
Chad Miller
Sep 25, 20 1:35 pm
It doesn't mean the architect is responsible for the cost of omitted work though . . .
poop876
Sep 25, 20 12:17 pm
I'm confused too. Are you saying the GC wants the Architect to pay for the equipment or whatever that you missed on the drawings? If yes, then tell him to fuck himself. It is a change order and he should be going to the owner for the amount.
A client, a while back, took me to court to pay for a sewer line that I noted 10' but in reality it was 100' long so they wanted us to pay for the pipe. The judge pretty much said that he was going to pay for it anyways, so we were not liable.
SneakyPete
Sep 25, 20 12:29 pm
If nobody's damaged, there's nothing to justify a legal judgment.
Jay1122
Sep 25, 20 12:40 pm
That concept is called Betterment. Dude it's part of the ARE study material. Goes in, Goes out I guess.
poop876
Sep 25, 20 12:49 pm
Yup. Some shady shit people come up with!
Everyday Architect
Sep 25, 20 12:33 pm
I feel like maybe this needs mentioning. The Owner needs to pay for everything once. It sounds like the bid didn't include money for the system so the Owner hasn't paid for it. Now the OP (owner?) is asking if they can hold the architect liable and get them to pay for it ... owner still hasn't paid for the system. I'll say it again in case someone missed it. The Owner needs to pay for everything once.
Jay1122
Sep 25, 20 12:43 pm
OH DAM, OP is the owner? trying to gouge architect to pay for it? That is some shady shit. I thought OP is part of the architecture group. Now i want to take my comment back, I don't want to educate crooks like that.
Jay1122
Sep 25, 20 12:51 pm
I thought he is part of the architecture group trying to know whether that little note on the plan actually bought the MEP systems as part of contract.
poop876
Sep 25, 20 12:52 pm
Mark is the architect.
Jay1122
Sep 25, 20 1:02 pm
Nah he is not the architect, probably the architect's intern at best.
Everyday Architect
Sep 25, 20 1:03 pm
Yeah, looking at their post history I can see that they would be the architect. My statement still stands, owner needs to pay for everything once.
I'll throw some shade at Mark though for not being a better architect. So many things could have prevented this type of thing. First, relying on a note is a cop out. Sorry, it just is. Second, your note could be misunderstood if the GC was thinking the owner was engaging a different contractor to handle the plumbing. If I'm the GC and it says "plumbing contractor" in the note ... well, that's "by others" in my book unless there is something somewhere saying I'm responsible for the plumbing contractor. Pro-tip: always write your documents to the GC even if another trade they will hire will do the work (in that arrangement the owner has no contract with the trade contractor, only the GC so, as a contract document, drawings should only be written to the GC who is party to the contract). Third, even asking for a simple breakdown of the bid would have caught this as you'd see no line item for plumbing. Fourth, if not a bid break down, at least a schedule of values that you could use to approve pay apps would have pointed out the missing scope. Fifth, asking for a list of major subs would have also indicated a missing plumbing subcontractor.
apscoradiales
Sep 25, 20 1:12 pm
As you note, there are no "others" in a Stipulated Sum contract.
I remember way back when if we said that on the drawings, a senior, more seasoned guy would come along and say, "Oh that's nice, so you are paying for this?" LOL!
List of subs is a good way to protect your client's ass, and your own.
Chad Miller
Sep 25, 20 1:17 pm
That dose not matter aps. If a the CD's says 'by other' or some variant then the GC dose not include it in their contract.
Wood Guy
Sep 25, 20 1:26 pm
Legal aspects aside, I made and kept a sign over my desk (and need to put it back) that says: IF IT MATTERS, DRAW IT. Doing so would save many of our headaches.
Chad Miller
Sep 25, 20 1:29 pm
Jay112 wrote"
"Nah he is not the architect, probably the architect's intern at best."
If I where you, I wouldn't be casting shade on the OP Jay. You've made it quite clear in this and other threads that you lack some basic experience and understanding in various areas of this profession. Don't get cocky.
Jay1122
Sep 25, 20 1:51 pm
Not trying to be cocky. You try to tell me that is a licensed architect with his own firm in charge of a new ground up? I am only 3-4 years in the profession and even I would not do a single line note based on the reply above for MEP systems. You are saying a licensed architect would make that judgement?
Everyday Architect
Sep 25, 20 2:00 pm
Jay, doesn't matter whether you believe it or not, check with the licensing board and you'll see that he is a licensed architect with his own business.
Everyday Architect
Sep 25, 20 2:18 pm
Given the clarification below, I'll withdraw most of my shade noted above. Still some issues, but not as bad as we were all assuming.
Chad Miller
Sep 26, 20 5:38 pm
Jay1122 wrote:
"Not trying to be cocky. You try to tell me that is a licensed architect with his own firm in charge of a new ground up? I am only 3-4 years in the profession and even I would not do a single line note based on the reply above for MEP systems. You are saying a licensed architect would make that judgement?"
Yes. It's called a performance based spec.
Edit: Looks like someone beat me to it below . . .
Markytect
Sep 25, 20 1:52 pm
I'm still reading through these, but wanted to clarify the house is on stilts, elevated off the ground, and the issue was that the GC was not sure how to protect the supply and sanitary piping exposed from the first floor down to the ground. I searched the code and could not find an answer (nor am I a licensed plumber), so I wrote in the specs that the plumbing system was only schematic and that a licensed plumbing contractor had to protect and insulate these exposed pipes per code. The GC based their bid off of these specs. The inspector didn't like how they did it and prescribed a way fix it. The GC is charging me for the labor and material costs of that fix.
Jay1122
Sep 25, 20 1:57 pm
Hey that does not sound like anything you said above. We all took wild circles around Mars. Context is important.
Non Sequitur
Sep 25, 20 1:58 pm
then your GC fucked up and did not do their own due diligence when they bid a solution. Or you can argue with the AHJ and find a solution to fits what the GC had in their bid.
Everyday Architect
Sep 25, 20 2:04 pm
What's the installed condition and what's the fix? If it is just adding to what is installed ... owner needs to pay for everything once. If it is tearing something out and replacing with something else ... GC needs to take it up with their plumber and perhaps the permit office that approved the solution (they won't get anywhere with the permit office) ... and/or the inspector who rejected it.
poop876
Sep 25, 20 2:04 pm
NO! Tell him again to fuck off in a professional way...or just fuck off!
Everyday Architect
Sep 25, 20 2:12 pm
I won't go into it, this is a whole other issue:
"I searched the code and could not find an answer (nor am I a licensed plumber), so I wrote in the specs that the plumbing system was only schematic and that a licensed plumbing contractor had to protect and insulate these exposed pipes per code."
Jay1122
Sep 25, 20 2:12 pm
So it is about pipe insulation. You should lead with that in original post. Took me to Mars. I would say GC's fault if you clearly indicated it is only schematic and the requirements for proper insulation. GC is responsible to figure out how to meet the requirements you prescribed in drawing or spec. Means and method. However, if you just say, GC needs to do work and meet code with no real performance guide or direction, that is real weak and ambiguous. Probably not acceptable.
Everyday Architect
Sep 25, 20 2:15 pm
This is more than means and methods ... but nice try [shrug].
Markytect
Sep 25, 20 2:16 pm
I was also opening up general discussion about this grey area of architect/GC relations. Curious to see what people had to say. I have this specific example, but was hoping to explore the topic.
Jay1122
Sep 25, 20 2:16 pm
If he clearly prescribed the performance requirements of pipe insulation in drawing or spec, even though without detailing the actual assembly. Didn't he bought the thing and just let GC figure out and meet the requirements. Isn't it mean and method on the GC. EA, throw me one of your lengthy post.
Jay1122
Sep 25, 20 2:25 pm
I am referring to performance spec. You don't give actual thing, just to meet the performance requirements set. Whether OP put in enough information regarding the requirements of the pipe insulation he wants is another story
.
Jay1122
Sep 25, 20 2:31 pm
Based on that sentence, "so I wrote in the specs that the plumbing system was only schematic and that a licensed plumbing contractor had to protect and insulate these exposed pipes per code". Ok he probably did not put down enough information. That sentence sounds like, I put down a few general 6x6 wood columns and beams on the plan and wrote "GC to figure out their size and spans required".
Chad Miller
Sep 26, 20 5:48 pm
Jay - you really are out of your depth here. A performance based spec (or notation) often refers to code, trade standards, or other requirements such as ANSI as the basis of the work to be performed. It sounds like the OP put down enough information to ensure that a system would be installed that met code and performed correctly. I personally would of added notes requiring a type of screening to be installed around the piping for decorative and protection purposes though. Regardless it's not the OP's fault that the GC missed this in their bid. It was in the contract documents.
bhardy
Oct 14, 20 1:11 pm
A few notes here as an Architect who now does full time PM. First if I was running this job I would have been pissed that my designer basically shrugged his shoulders and said "not my problem see this note"? I always tell my design team that we need to solve problems not only identify them. Now as to who is at fault, unless the GC has some carve-out I would argue its "on the drawings". Part of this discussion also needs to be viewed relative to the contract. It possible the GC has a blanket exclusion which may supersede any note on the documentation.
Markytect
Sep 25, 20 2:21 pm
Everyday Architect - yes, i know that sounds weak, but the point is that I'm not the plumbing expert right? And there is SO MUCH detail on MEP systems that are hardly ever included in single family residential drawings. Also part of this point is that if the GC didn't like me passing the solution on to the qualifying expert, the GC should have made that clear before setting their bid and entering into the contract with the client, correct?
proto
Sep 25, 20 2:58 pm
yes, they should have ID'ed any exclusions from the contract docs
and, yes, it's quite normal in residential to not have the plumbing designed
Everyday Architect
Sep 25, 20 3:05 pm
I'll avoid getting into the issue I pointed out with your quote above and handle this from a practical point of view based on what I understand your situation to be at this point.
You knew you weren't sufficiently qualified to propose a solution to the problem (that's good). You delegated that responsibility to the contractor through the documents (questionable about how you did it, but let's assume everything is ok here).
The contractor now has the responsibility to hire a designer (i.e. knowledgeable plumber) who can finish your design and meet the code. It sounds like this could be where the problem is. The design doesn't pass inspection and needs to be fixed. Either the design and installation meets code and the inspector is wrong, or the design doesn't meet code and the contractor and their plumber are wrong.
Assuming the inspector is correct (because even if they are incorrect they usually get their way), the question is who needs to pay for it. If what is installed will work with some minor tweaks the owner needs to pay for it (they pay for everything once and what they've already paid for is still there ... it just needs a little more). If what is installed won't work and needs to be replaced, the GC and their plumber are going to be on the hook for some of it as they had the responsibility to finish the design and meet the code.
If the cost of the fix is the same as what was originally installed, the GC and the plumber should eat the cost of demo (it was their responsibility to design and install something that would pass inspection ... they don't get paid for things that don't are non-compliant) and the labor and materials. If the cost of the fix is more than what was originally installed, the GC and the plumber should eat the cost of the demo, apply the amount they've been paid for the original to the fix, and bill the owner for the difference (owner has to pay for everything once).
wurdan freo
Sep 25, 20 3:18 pm
Again.... depends on the contract... my contract says Owner pays for everything... period.
Everyday Architect
Sep 25, 20 3:40 pm
wurdan, that sounds nice for an owner-architect agreement. However, an owner-contractor agreement will typically not require payment for non-compliant work.
SneakyPete
Sep 25, 20 6:23 pm
A contract can say anything, until the court gets involved the only thing that makes everyone happy is everyone being happy. See also: EULAs.
wurdan freo
Sep 26, 20 7:03 pm
design build contractor here.... FYI
awaiting_deletion
Sep 26, 20 7:19 pm
so you don't read wurdan freo?
wurdan freo
Sep 26, 20 10:45 pm
I read from time to time... recently I've read fix this next, raising private capital, Richter homes and the way of the warrior kid... anxiously awaiting saving the constitution... I'd recommend them all...
wurdan freo
Sep 26, 20 10:45 pm
JFC... that would be eichler homes...
awaiting_deletion
Sep 26, 20 11:45 pm
jesus christ, a builder who reads! (kidding, you said 7 layers therer)
midlander
Sep 25, 20 11:10 pm
more basic than debating hypotheticals about contracts this seems like ordinary poor communication between the 3 parties. The architect should have explicitly informed the owner this portion of the work required specialist design and either offered to an add service for a plumbing sub as a consultant, or communicated clearly to the GC to include this in the bid. And gotten written acknowledgement from both noting the issue.
Architects should provide good clear communication to all parties involved. This isn't a legal principle but it's the first step in avoiding problems.
midlander
Sep 25, 20 11:25 pm
it also seems quite possible that suitable enclosure of the plumbing could require architectural work and shouldn't have been completely and quietly delegated to the gc. Is it possible the solution requires an insulated enclosure and structural support? It sounds to me like the GC made a good faith effort to do something workable without actually understanding what the architect meant by the note. Like, if I drew a bunch of too-narrow exit doors and noted on the general notes the gc should ensure all doors meet code, it's probably my fault if no one recognizes this problem.
Everyday Architect
Sep 26, 20 12:36 am
I need more thumbs to use for these posts.
midlander
Sep 26, 20 2:14 am
i added one for you :)
Everyday Architect
Sep 28, 20 12:50 am
This is basically what I have been trying to avoid, and instead have been focusing on practical responses. The good communication horse has already bolted (in a manner of speaking), no use in worrying about the door at this point. However, it's always good to figure out how you got there and how to prevent it in the future.
For all the contractors I've seen lately trying to exclude any delegated design from their contracts, this is something that I think architects are going to have to figure out better, and start educating clients about ... but that could be a whole other thread.
archi_dude
Sep 27, 20 6:17 pm
Purused this real fast so my response is more related to the first half. From the GC's perspective. I think architects give us way too much credit when it comes to perceptions of how we price. Theres this idea that we are finding all the loopholes and excluding them, ready to change order the crud out of the owner. The reality is we are just way over worked, with bid sets due almost immediately after they are issued and arent smart enough to be that conniving. If a project I was on had zero change orders that would be AWESOME! The amount of time to identify and RFI the bust or unclear drawings and then negotiate pricing for things is not covered by the increase in fee plus it would be so awesome to focus on building rather than all that paperwork. We need to all focus our attention on the real culprit. These crazy deadlines that result in bidding DD sets with endless addenda and schedules that want construction to start before permits. Let's push back together!
apscoradiales
Sep 27, 20 6:23 pm
Based on what you are saying, you sound like a contractor.
Nothing wrong with that, and I understand your situation. The sad reality though is that the architects themselves hardly ever come up with stupid deadlines or sill tendering process based on DD package or hear-say method.
You can point that finger at the Owners!
If an architect said to the Owner, "We shouldn't be doing that, and we should not be sending a half-baked set of drawings out for tender", he would turn around and go to another architect who would tell him, "Hey no problem."
Architects are many times their worst enemies.
archi_dude
Sep 28, 20 12:23 am
Im an architect but got fed up with low wages and am a field engineer now for a GC. Same with contractors. I hear from higher ups, if we said no to deadlines owners will go to a contractor that will say yes. We need to remember it's the damn owners lol. Let's not fight each other. Plus we love a good architect, when there is a good architect its awesome.
BulgarBlogger
Sep 27, 20 8:09 pm
I don’t understand why anyone would get themselves into a situation with their client where the pricing set would be the permit set. Whoever agreed to that arrangement, is a pendejo.
BulgarBlogger
Sep 27, 20 8:16 pm
Also, it sounds to me like the client hired you to simply to a permit set and the GC would take on the rest. That is generally okay, as long as the client understood that there was going to be a gap between the permit set and the pricing/construction set. Beyond that, even if the client understood that, the bigger concern is if you, as the applicant, are being strict with the GC about code deficiencies due to lacking information on the drawings and are now expecting the GC to fill in THOSE gaps. A GC may know a thing or two about codes, but you as the design professional, should have made all the code issues crystal clear on the drawing set. If there are no code issues, then the GC is just looking for ways to make extra money, and is being a dick by blaming the architect.
For residential, single-family construction, where the architect has clearly named all the PME systems that will be in place, can the GC legally claim that they didn't budget for something in their final, contracted construction bid because there was not enough detail in the sealed permit drawings (the drawings on which they based their contracted construction bid), and hold the architect liable to pay subsequent construction change orders?
In my reasoning, If the GC has reviewed the plans and are basing their contracted construction cost on those plans, then they are responsible for noticing omissions of detail and asking clarifying questions before they sign a contract with a client. Effectively locking themselves into THEIR omissions.
Also, does anywone know where I can find the state laws that cover this issue? I'm in North Carolina.
Thank you so much! Working toward understanding!
Mark
First off I am assuming the items the GC didn't budget for was the PME system and that in fact that system was not already in place?
Look at the contract. If you don't have one you're in for a legal battle.
Look at the drawings and specs - dose it say that the GC is to verify that the PME system was installed?
This was new single family construction. The plumbing system was generally described with a note saying that the plumbing contractor needed to design the system and install per code.
That sounds really weak. I would do a dedicated sheet showing some basic schematic routing and big text for the Contractor to coordinate and provide final system design and installation. No way anyone can argue they did not see that. And it is always better if you can have Contractors on board during design and documentation. Offer their insights and experience.
If that note was on the drawing then the GC was informed and is responsible for the missed system.
In the future a note like that should have a line added to it stating that the plumbing sub will provide a design to the architect for coordination purposes.
Chad, My first firm did a lot of public small reno works that deals with these scum bag GCs with no integrity. Trust me, those nasty contractors will not accept a tiny note on one of the sheet as acceptable defense. Even by basic logic that it is clearly indicated with a text call out note. Had an old architect told me a GC used poor spelling in drawing trying to discredit the architect's work in court. They try all kinds of nasty shits. In this case, the GC argues not enough details was provided to establish actual scope for bid price. The GC will probably say he saw the note, but it is too little and generic, can't provide a price on that, so we did not provide one during bid.
That is why I want to work on big projects with nice GCs that does not nickel and dime every time they see the chance. But so far, even the GC for 50m ground up is still scum bag. Maybe design build or private sector is the way to go.
Doesn't matter. CD's are a contract and a single note on a set of CD's is enough to legally bind the GC. The GC may not accept it but the courts will. Obviously you need to make things clear in your CD's so the GC won't miss it as no one wants to go to court however that doesn't change who's legally responsible in this situation - the GC.
On a side note the size of the project / GC, project delivery method, or public vs private sector has no impact on the honesty of the GC or their desire to get all the available payment out of the owner. You simply don't know what you don't know.
Another way to ask this is:
Isn't it up to the GC to ask for more drawing detail than what is required for permit? Because the GC needs a lot more info than what's in permit drawings to create an accurate bid.
Depends on what they've been instructed to do for bidding. Perhaps they assumed in your situation that the owner was going to secure a design-build plumbing contractor under separate contract. Was the GC given any bidding instructions to indicate that they were responsible for the plumbing scope? Your note apparently called out the "plumbing contractor" and indicated their responsibilities to design and build the system. You can see that if the GC assumed that contractor would be hired separately that means they don't have any scope for that work, except for maybe some coordination, and hence why it was left out of their bid. If that was the case, maybe the level of detail was fine for what they understood and they wouldn't need to ask for more drawing detail.
Markytect I have a exactly that note on all my drawings, hold on -
- WHERE NEW WORK IS REQUIRED AND IT CONFLICTS WITH EXISTING STRUCTURAL, MECHANICAL OR CODE LIMITATIONS, THE CONTRACTOR, BUILDER, OR THOSE IN RELEVANT OR CONTINGENT TRADES SHALL INFORM THE OWNER AND ARCHITECT OF SUCH, PRIOR TO PROCEEDING WITH SUCH WORK.
- CONTRACTORS SHALL INDEMNIFY AND HOLD HARMLESS THE OWNER, AND THE ARCHITECT AGAINST ALL EXPENSES AND ATTORNEY'S FEES AND ANY LAWSUITS OR ACTIONS ARISING IN WHOLE OR IN PART FROM ANY ACT OR OMISSION BY THE CONTRACTOR, OF THE SUBCONTRACTOR OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY THE OWNER.
- THE SUBMISSION OF THE CONTRACTOR'S BID IMPLIES THAT ALL DRAWINGS, SPECIFICATIONS, AND NOTES HAVE BEEN READ, UNDERSTOOD AND INCORPORATED AS PART OF THE BID AMOUNT.
I can't find the one that basically says "CONTRACTOR IS TO INFORM ARCHITECT OF ANY DISCREPANCIES OR MISSING INFORMATION IN THE PLANS."
All things being equal, and this being new construction rather than renovation, it is normal for the GC to qualify his bid by pointing out why he did not include some items.
If it's a reno, it's sometimes difficult to see what's in a wall until you start demolishing it. If it's a question of drawings and specs being ambiguous he would than say, "I couldn't price this or that because there was no information there". During the bidding process, GC's are allowed to query the architect on those items until the bid is submitted. After that, unless the GC says in his bid, or qualifies it, that something is not included, he is on the hook.
We have sometimes done jobs where we would say qualified bids will be considered invalid, and will be discarded.
So unless the GC has questions during the bidding process, and gets satisfactory answers, everything is included, and no extras will be entertained (unless of course initiated by the Owner or the Architect/Engineers).
Up in Canada we have standard CCDC (Canadian Construction Documents Committee) documents that are used in the bidding process. Those are sometimes amended or modified as per Supplementary Conditions. Do you have something like that in NC, and if you do, did you use them?
What exact "instructions" besides drawings and maybe specs did you give to the bidding contractor(s)?
Read them, and see what they say. If you don''t any additional documents and the drawings/specs are little bit questionable, you are then on thin ice.
Legally speaking, verbal instructions are acceptable by the courts just like written ones, but they are far more difficult to prove. That's why if it does not say it in the Contract Documents, then it is not included.
Also, keep in mind that the Contractor is not there to check or correct your drawings or specs; they are there to build as per the instructions you give them.
PME system? As in MEP? Mechanical, Electrical, Plumbing?
Just my opinion. Not having detail drawing is not the reason that it can be dismissed. As long as you have clearly indicated the items and scope. Of course GC will argue how poorly you indicated the scope. Like a general note in the text group calling for those systems to be included in bid is really weak. It is especially true if it is a manufactured product. Some times you just call out GC to provide the Blah blah product by blah blah company. And supplement it with spec. You don't really need detail drawings if you don't think it is necessary. This is Single residential house, its private sector. Shouldn't you guys communicate more and negotiate prices and such? And MEP? how do you miss those? I know in small res project architects don't usually do mechanical or hire engineer. You work with HVAC subs to figure out the routes and system.
There are many things wrong with this statement. However it is rather ridiculous to miss that the GC has nothing in their bid for plumbing.
something missed by the comments above me...
are you suggesting that the arch is on the hook for the cost of the omitted items? Like, shit, we did not bid for the HVAC, arch, give us 10K? Your client is the one responsible to pay for construction costs not the arch...
LOL sharp eyes. If he is like you, I doubt there will be this situation. Anyway, I think he meant architect is liable to approve the change order request because of the missed detail. I doubt he is the architect if he does not even know these.
def sounds like a homeowner who went with the cheapest cost on the drawings (less details and coordination) and cheapest contractor ( business model = bid low and change order in to profitability)
wurdan, this definitively reads like it's the homeowner looking to get a free lunch.
It does sound like that. Design contracts should include a limitation of liability to the amount of the design contract, or something along those lines.
All depends on the contracts.
Yep. btw; for omissions IF it was my responsibility... I absorb the cost of the design, not construction costs. My contract is for the design, therefore that is all I'll cover: I correct my work. Normally, MEP isn't in any of my residential contracts, just intent of the system like fixtures and outlets and some mechanical chases.
"Can the GC claim they didn't budget for something listed in the contract docs?"
Yes, it happens all the time.
It means the due diligence background check on the GC was insufficient; the received bid review was insufficient; and now you are partnered with someone who isn't a good build partner for your project.
Cut bait or work it out.
It doesn't mean the architect is responsible for the cost of omitted work though . . .
I'm confused too. Are you saying the GC wants the Architect to pay for the equipment or whatever that you missed on the drawings? If yes, then tell him to fuck himself. It is a change order and he should be going to the owner for the amount.
A client, a while back, took me to court to pay for a sewer line that I noted 10' but in reality it was 100' long so they wanted us to pay for the pipe. The judge pretty much said that he was going to pay for it anyways, so we were not liable.
If nobody's damaged, there's nothing to justify a legal judgment.
That concept is called Betterment. Dude it's part of the ARE study material. Goes in, Goes out I guess.
Yup. Some shady shit people come up with!
I feel like maybe this needs mentioning. The Owner needs to pay for everything once. It sounds like the bid didn't include money for the system so the Owner hasn't paid for it. Now the OP (owner?) is asking if they can hold the architect liable and get them to pay for it ... owner still hasn't paid for the system. I'll say it again in case someone missed it. The Owner needs to pay for everything once.
OH DAM, OP is the owner? trying to gouge architect to pay for it? That is some shady shit. I thought OP is part of the architecture group. Now i want to take my comment back, I don't want to educate crooks like that.
I thought he is part of the architecture group trying to know whether that little note on the plan actually bought the MEP systems as part of contract.
Mark is the architect.
Nah he is not the architect, probably the architect's intern at best.
Yeah, looking at their post history I can see that they would be the architect. My statement still stands, owner needs to pay for everything once.
I'll throw some shade at Mark though for not being a better architect. So many things could have prevented this type of thing. First, relying on a note is a cop out. Sorry, it just is. Second, your note could be misunderstood if the GC was thinking the owner was engaging a different contractor to handle the plumbing. If I'm the GC and it says "plumbing contractor" in the note ... well, that's "by others" in my book unless there is something somewhere saying I'm responsible for the plumbing contractor. Pro-tip: always write your documents to the GC even if another trade they will hire will do the work (in that arrangement the owner has no contract with the trade contractor, only the GC so, as a contract document, drawings should only be written to the GC who is party to the contract). Third, even asking for a simple breakdown of the bid would have caught this as you'd see no line item for plumbing. Fourth, if not a bid break down, at least a schedule of values that you could use to approve pay apps would have pointed out the missing scope. Fifth, asking for a list of major subs would have also indicated a missing plumbing subcontractor.
As you note, there are no "others" in a Stipulated Sum contract.
I remember way back when if we said that on the drawings, a senior, more seasoned guy would come along and say, "Oh that's nice, so you are paying for this?" LOL!
List of subs is a good way to protect your client's ass, and your own.
That dose not matter aps. If a the CD's says 'by other' or some variant then the GC dose not include it in their contract.
Legal aspects aside, I made and kept a sign over my desk (and need to put it back) that says: IF IT MATTERS, DRAW IT. Doing so would save many of our headaches.
Jay112 wrote"
"Nah he is not the architect, probably the architect's intern at best."
If I where you, I wouldn't be casting shade on the OP Jay. You've made it quite clear in this and other threads that you lack some basic experience and understanding in various areas of this profession. Don't get cocky.
Not trying to be cocky. You try to tell me that is a licensed architect with his own firm in charge of a new ground up? I am only 3-4 years in the profession and even I would not do a single line note based on the reply above for MEP systems. You are saying a licensed architect would make that judgement?
Jay, doesn't matter whether you believe it or not, check with the licensing board and you'll see that he is a licensed architect with his own business.
Given the clarification below, I'll withdraw most of my shade noted above. Still some issues, but not as bad as we were all assuming.
Jay1122 wrote:
"Not trying to be cocky. You try to tell me that is a licensed architect with his own firm in charge of a new ground up? I am only 3-4 years in the profession and even I would not do a single line note based on the reply above for MEP systems. You are saying a licensed architect would make that judgement?"
Yes. It's called a performance based spec.
Edit: Looks like someone beat me to it below . . .
I'm still reading through these, but wanted to clarify the house is on stilts, elevated off the ground, and the issue was that the GC was not sure how to protect the supply and sanitary piping exposed from the first floor down to the ground. I searched the code and could not find an answer (nor am I a licensed plumber), so I wrote in the specs that the plumbing system was only schematic and that a licensed plumbing contractor had to protect and insulate these exposed pipes per code. The GC based their bid off of these specs. The inspector didn't like how they did it and prescribed a way fix it. The GC is charging me for the labor and material costs of that fix.
Hey that does not sound like anything you said above. We all took wild circles around Mars. Context is important.
then your GC fucked up and did not do their own due diligence when they bid a solution. Or you can argue with the AHJ and find a solution to fits what the GC had in their bid.
What's the installed condition and what's the fix? If it is just adding to what is installed ... owner needs to pay for everything once. If it is tearing something out and replacing with something else ... GC needs to take it up with their plumber and perhaps the permit office that approved the solution (they won't get anywhere with the permit office) ... and/or the inspector who rejected it.
NO! Tell him again to fuck off in a professional way...or just fuck off!
I won't go into it, this is a whole other issue:
"I searched the code and could not find an answer (nor am I a licensed plumber), so I wrote in the specs that the plumbing system was only schematic and that a licensed plumbing contractor had to protect and insulate these exposed pipes per code."
So it is about pipe insulation. You should lead with that in original post. Took me to Mars. I would say GC's fault if you clearly indicated it is only schematic and the requirements for proper insulation. GC is responsible to figure out how to meet the requirements you prescribed in drawing or spec. Means and method. However, if you just say, GC needs to do work and meet code with no real performance guide or direction, that is real weak and ambiguous. Probably not acceptable.
This is more than means and methods ... but nice try [shrug].
I was also opening up general discussion about this grey area of architect/GC relations. Curious to see what people had to say. I have this specific example, but was hoping to explore the topic.
If he clearly prescribed the performance requirements of pipe insulation in drawing or spec, even though without detailing the actual assembly. Didn't he bought the thing and just let GC figure out and meet the requirements. Isn't it mean and method on the GC. EA, throw me one of your lengthy post.
I am referring to performance spec. You don't give actual thing, just to meet the performance requirements set. Whether OP put in enough information regarding the requirements of the pipe insulation he wants is another story .
Based on that sentence, "so I wrote in the specs that the plumbing system was only schematic and that a licensed plumbing contractor had to protect and insulate these exposed pipes per code". Ok he probably did not put down enough information. That sentence sounds like, I put down a few general 6x6 wood columns and beams on the plan and wrote "GC to figure out their size and spans required".
Jay - you really are out of your depth here. A performance based spec (or notation) often refers to code, trade standards, or other requirements such as ANSI as the basis of the work to be performed. It sounds like the OP put down enough information to ensure that a system would be installed that met code and performed correctly. I personally would of added notes requiring a type of screening to be installed around the piping for decorative and protection purposes though. Regardless it's not the OP's fault that the GC missed this in their bid. It was in the contract documents.
A few notes here as an Architect who now does full time PM. First if I was running this job I would have been pissed that my designer basically shrugged his shoulders and said "not my problem see this note"? I always tell my design team that we need to solve problems not only identify them. Now as to who is at fault, unless the GC has some carve-out I would argue its "on the drawings". Part of this discussion also needs to be viewed relative to the contract. It possible the GC has a blanket exclusion which may supersede any note on the documentation.
Everyday Architect - yes, i know that sounds weak, but the point is that I'm not the plumbing expert right? And there is SO MUCH detail on MEP systems that are hardly ever included in single family residential drawings. Also part of this point is that if the GC didn't like me passing the solution on to the qualifying expert, the GC should have made that clear before setting their bid and entering into the contract with the client, correct?
yes, they should have ID'ed any exclusions from the contract docs
and, yes, it's quite normal in residential to not have the plumbing designed
I'll avoid getting into the issue I pointed out with your quote above and handle this from a practical point of view based on what I understand your situation to be at this point.
You knew you weren't sufficiently qualified to propose a solution to the problem (that's good). You delegated that responsibility to the contractor through the documents (questionable about how you did it, but let's assume everything is ok here).
The contractor now has the responsibility to hire a designer (i.e. knowledgeable plumber) who can finish your design and meet the code. It sounds like this could be where the problem is. The design doesn't pass inspection and needs to be fixed. Either the design and installation meets code and the inspector is wrong, or the design doesn't meet code and the contractor and their plumber are wrong.
Assuming the inspector is correct (because even if they are incorrect they usually get their way), the question is who needs to pay for it. If what is installed will work with some minor tweaks the owner needs to pay for it (they pay for everything once and what they've already paid for is still there ... it just needs a little more). If what is installed won't work and needs to be replaced, the GC and their plumber are going to be on the hook for some of it as they had the responsibility to finish the design and meet the code.
If the cost of the fix is the same as what was originally installed, the GC and the plumber should eat the cost of demo (it was their responsibility to design and install something that would pass inspection ... they don't get paid for things that don't are non-compliant) and the labor and materials. If the cost of the fix is more than what was originally installed, the GC and the plumber should eat the cost of the demo, apply the amount they've been paid for the original to the fix, and bill the owner for the difference (owner has to pay for everything once).
Again.... depends on the contract... my contract says Owner pays for everything... period.
wurdan, that sounds nice for an owner-architect agreement. However, an owner-contractor agreement will typically not require payment for non-compliant work.
A contract can say anything, until the court gets involved the only thing that makes everyone happy is everyone being happy. See also: EULAs.
design build contractor here.... FYI
so you don't read wurdan freo?
I read from time to time... recently I've read fix this next, raising private capital, Richter homes and the way of the warrior kid... anxiously awaiting saving the constitution... I'd recommend them all...
JFC... that would be eichler homes...
jesus christ, a builder who reads! (kidding, you said 7 layers therer)
more basic than debating hypotheticals about contracts this seems like ordinary poor communication between the 3 parties. The architect should have explicitly informed the owner this portion of the work required specialist design and either offered to an add service for a plumbing sub as a consultant, or communicated clearly to the GC to include this in the bid. And gotten written acknowledgement from both noting the issue.
Architects should provide good clear communication to all parties involved. This isn't a legal principle but it's the first step in avoiding problems.
it also seems quite possible that suitable enclosure of the plumbing could require architectural work and shouldn't have been completely and quietly delegated to the gc. Is it possible the solution requires an insulated enclosure and structural support? It sounds to me like the GC made a good faith effort to do something workable without actually understanding what the architect meant by the note. Like, if I drew a bunch of too-narrow exit doors and noted on the general notes the gc should ensure all doors meet code, it's probably my fault if no one recognizes this problem.
I need more thumbs to use for these posts.
i added one for you :)
This is basically what I have been trying to avoid, and instead have been focusing on practical responses. The good communication horse has already bolted (in a manner of speaking), no use in worrying about the door at this point. However, it's always good to figure out how you got there and how to prevent it in the future.
For all the contractors I've seen lately trying to exclude any delegated design from their contracts, this is something that I think architects are going to have to figure out better, and start educating clients about ... but that could be a whole other thread.
Purused this real fast so my response is more related to the first half. From the GC's perspective. I think architects give us way too much credit when it comes to perceptions of how we price. Theres this idea that we are finding all the loopholes and excluding them, ready to change order the crud out of the owner. The reality is we are just way over worked, with bid sets due almost immediately after they are issued and arent smart enough to be that conniving. If a project I was on had zero change orders that would be AWESOME! The amount of time to identify and RFI the bust or unclear drawings and then negotiate pricing for things is not covered by the increase in fee plus it would be so awesome to focus on building rather than all that paperwork. We need to all focus our attention on the real culprit. These crazy deadlines that result in bidding DD sets with endless addenda and schedules that want construction to start before permits. Let's push back together!
Based on what you are saying, you sound like a contractor.
Nothing wrong with that, and I understand your situation. The sad reality though is that the architects themselves hardly ever come up with stupid deadlines or sill tendering process based on DD package or hear-say method.
You can point that finger at the Owners!
If an architect said to the Owner, "We shouldn't be doing that, and we should not be sending a half-baked set of drawings out for tender", he would turn around and go to another architect who would tell him, "Hey no problem."
Architects are many times their worst enemies.
Im an architect but got fed up with low wages and am a field engineer now for a GC. Same with contractors. I hear from higher ups, if we said no to deadlines owners will go to a contractor that will say yes. We need to remember it's the damn owners lol. Let's not fight each other. Plus we love a good architect, when there is a good architect its awesome.
I don’t understand why anyone would get themselves into a situation with their client where the pricing set would be the permit set. Whoever agreed to that arrangement, is a pendejo.
Also, it sounds to me like the client hired you to simply to a permit set and the GC would take on the rest. That is generally okay, as long as the client understood that there was going to be a gap between the permit set and the pricing/construction set. Beyond that, even if the client understood that, the bigger concern is if you, as the applicant, are being strict with the GC about code deficiencies due to lacking information on the drawings and are now expecting the GC to fill in THOSE gaps. A GC may know a thing or two about codes, but you as the design professional, should have made all the code issues crystal clear on the drawing set. If there are no code issues, then the GC is just looking for ways to make extra money, and is being a dick by blaming the architect.