Decision Making Protocols

The Request for Information/Clarification/Direction Process

  1. Contractor Duties  The contractor has these duties regarding variances from the contract documents:
    1. Timeliness of Identification and Notification
      1. Drawing and specification  conflicts.  Use reasonable diligence to determine if any conflicts  or deficiencies exist PRIOR to them being discovered in the field.  If conflicts could have been discovered through a review in the office and were not until the field ran into a conflict, the contractor is entitled to any scope change but not field impact.  There are a number of way stations along the road for the contractor to use reasonable diligence in spotting conflicts or discrepancies:
        1. Estimating.  In bid documents, only obvious or patent discrepancies or omissions are necessary for the contractor to spot.  But its failure to do so and ask for clarification may shift liability for the discrepancy to the contractor.
        2. In the office and not in the field.  This means that the contractor as well as its suppliers have a duty to perform reasonable reviews of the contract documents prior to doing the work  and bring any conflicts or omissions to the attention of the owner.  Failure to do so shifts the impact of such an omission to the contractor.
          1. Coordination drawings are especially important in detecting trade conflicts and discrepancies.
          2. Subcontractors have a duty to check precedent work activities to determine the state of readiness for their work.  If there are discrepancies, tolerances out of specifications, etc, then the owner must be notified in advance of starting the work.
        3. Preparatory phase of the three step quality program.   Review plans and specifications prior to such meeting to determine if conflicts exist.
        4. Commissioning is a function which may also identify problems with the contract documents.  Mock ups as well.
      2. Changed Conditions.  Check your contract.  Irrespective of the time specified, our recommendation is to provide written notice immediately upon discovered a changed or differing site condition. 
      3. iii.Owner failures.  The same is true for failures of the owner to have properly performed its duties. In renovation construction, the duties of the owner often relate to the state of readiness of the structure so that the contractor may begin its work.  These duties may relate to access, removal of hazardous material or structures which interfere with the prosecution of the work.  The contractor should examine the structure  to find out what a reasonably prudent contractor should learn about potential hazardous materials, obstructions, and report them to the owner on a timely basis.
      4. The concept.  Forget legal implications. Although these con  The idea is for the parties to collaborate in such a manner as to remove all possible roadblocks to a successful project. The contractor has a right to believe that the owner is not creating documents which are going to impede its ability to perform the work because of their inadequacy.  The  owner has a right to believe that in the contractor’s effective planning, it will pick up any flaws in the documents before they become an impact to the installation process. 
    2. The Nature of the Notification.  The contractor’s notification should contain  specific information adequate to inform the owner of the following:
      1. The issue, which should be  expressed clearly in such a manner that the owner or its representative know what the issue is and what type of reply is necessitated. Is a solution required, a clarification of the drawings, a scope change?  The contractor must always do its own research and not simply ask the designer to do it for him.  If the contractor has a recommendation solution,  he may expedite the process by offering it.

Requests for information should never be of an accusatorial nature.  The contractor should never make statements such as “this is another example of error and omission” or “this is another example of what a lousy preconstruction phase the owner conducted”. 

The reference drawings, specifications or other contract provision.  The contractor always has the duty to support its position when claiming a  variance or a change to the contract.  This is called entitlement.  So identify with specificity the contract documents which are being changed or which are in conflict or which are discrepant; if there is a duty the owner has failed to comply with, specify that contract provision.   Remember also that there are implied duties that both parties have: the duty to be fair, to cooperate, to be reasonable, and to not interfere unreasonable with the performance of the other.

      1. The need date for a response.  Never cry wolf.  Be realistic about when a turnaround is required.  It is the project schedule which determines need, not just when the contractor might want a turnaround. 
        1. Tie to CPM activity(ies) that are affected.   
        2. Internally,  tie to a cost activity.
      2. iii.The present and potential  effect of the issue. This does not have to be expressed as a cost or price, but as an  activity or activities: “The failure to remediate the hazardous material is presently preventing us from demolishing the CMU wall at whatever location. This activity was scheduled to begin on                       as indicated in our planning meeting dated                   .(In most  RFIs,  statements such as the following are probably unnecessary; rather those in which the potential ripple effect of an issue or a dilatory response is likely to be significant:“The follow on activities to the demolition of the CMU wall are listed below and may be adversely affected as well.  Until this issue has been resolved and the demolition completed, we will not be able to fully ascertain the complete impact of this interference with our ability to perform this work. Delays may affect the sequence of the work, and because of limitation of space, crew congestion as well.  And if the wall cannot be completely demolished resulting in stop and go movement of crews, this may further impact productivity.    We  will continue to evaluate any continuing or additional effect that is not presently identified and be forthcoming in presenting that information with field documentation.”NOTE: In the foregoing I have simply given some examples of what might happen in a given scenario.  But in any correspondence, it is important that such illustrations have a truly credible basis. 
    1. Track the Issue
      1. Enter in Log
      2. Track in daily report
      3. iii.Discuss where appropriate in planning meetings
      4. Provide the scheduler the information for schedule updating where appropriate
  1. Owner’s Responsibilities
    1. Timeliness of Response.  The Owner has a duty to respond on a timely basis.  The contractor should establish what is “timely” in its request for information or direction.  In an ideal world, the contractor should discover and notify the owner of issues on such a timely basis and the owner  should respond with such timely dispatch that field operations will not be adversely affected.  This should always be a goal the parties agree to work toward at the onset of the project. 
      1. Tickler file: The contractor should maintain a tickler file of open issues and send reminders of need dates.  When the need date has elapsed, the contractor should document to the owner the continuing effect of the failure to issue a timely response.  In addition, open items should be presented at weekly progress meetings as well.
    2. The Owner is Dilatory in Responding.  Assume the Owner fails to comply with its responsibilities to provide timely response, and efforts by management have failed to provide the desired result.  In this instance, the contractor writes a letter stating: “RFI No. XXX was submitted on .You were notified that this RFI affected CPM Activity No.            and that unless a timely response was received,  the critical path of the project could be delayed, work sequence adversely affected.  In addition, this was brought to your attention in a follow up letter dated                          and again in planning meetings dated                                             .The impact of the failure to provide a response is demonstrated in the attached daily reports.   We have performed all possible mitigating activities but are now stopped working in the (area of the walls, etc).  This is a constructive suspension of critical activity of work, and you are notified that the costs associated therewith are considered to be the responsibility of the Owner and will be submitted when fully accumulated.  However, please be advised that until such time as you provide suitable direction regarding this activity, the entire project is being adversely affected.” 
      1. Track this through:
        1. Daily reports
          1. Pictures
        2. Update of CPM
        3. Look ahead schedules
        4. Cost code tracking
        5. Coordination with subcontractors (copy with all letters)
    3. Assume the Owner responds by stating that this issue is the contractor’s responsibility.  The Contractor responds as follows:
      1. “ Reference your letter dated                          stating that the issue set forth in our request for direction is the contractual responsibility of the contractor, please be advised that our position remains as previously set forth.   We consider your rejection of our position to be a constructive change to the contract and we will perform the out of scope work under protest.  In addition, the constructive change will be included in our schedule update and look ahead schedules.  We will track the cost directly and indirectly  associated with it,  and submit to you when fully accumulated.  Because of the additional time to perform the work, and because you have completely denied the requested change, we are proceeding on the basis that you are also directing that the original contract schedule be maintained , and therefore, you are notified that this is also a constructive acceleration, the impact of which will be quantified and presented to you as well.”
        1. The elements of the constructive change then may be:
          1. The additional work associated with the change (assuming your position is correct)
          2. A suspension of work while awaiting a decision from the Owner or being able to proceed
          3. Additional time to perform the work
          4. Work flow impact that may result from performing work out of sequence
          5. Potential acceleration if the constructive change affects critical path and no justified time extension is granted
  1. The Time to  Document
    1. An  issue of timeliness is when to document.  The answer is simple: Document in Real Time on an Ongoing Basis
      1. Notices as soon as the variance is discovered
      2. Pictures of conditions which are relevant as they occur (for example, weather can create on going adverse site conditions; the late closing in of the building is shown by pictures of the roof being installed over time; pictures of remediation of the differing site conditions should be on going)
      3. iii.Daily reports showing effect of variance
      4. Establish immediately cost account; track earned value on continuous basis
      5. Update schedule
      6. vi.Include as issue in planning meeting minutes
      7. vii.Update logs
      8. viii.Update purchase orders or subcontracts