Design Errors

It is not uncommon to find various attempts to hold contractors responsible for errors in the plans and specifications as authored by the designer of record. Such a passing of the buck is unfair and unmanageable. Please remember, contractors are not licensed professional designers, they are not licensed to protect life, health and property, they are not the authors of the documents and they have a relatively limited amount of time to look at documents when compared to the designers. Examples of such unfair clauses include those that require the contractor to notify the designer of all errors before bid opening or live with them or those that require the contractor to bear responsibility for violations to code. The two most common clauses in this regard are those dealing with the issue of intent and the more expensive clause.

Intent: Many a dispute arises out of the issue of intent of the designer when authoring the documents. Taken to the extremes, these clauses ask the contractor to read the mind of the designer as to what was required where. Obviously, contractors are not mind readers. To avoid the disputes, the 1997 edition of AIA form of general conditions A201 has included the word "indicated" after the word "intent." Therefore the idea is to provide the intent indicated in the documents. To illustrate the equitable treatment of this matter, where a run of pipe is "indicated" it need not show every coupling or elbow required to fit it into the space. The negative view would be that where sinks are shown but no piping, "You must have known that our intent was to provide piping to those sinks." Where? What kind?

This issue becomes even more complicated where there are multiple prime contracts. Many an item has fallen through the cracks when breaking up the packages. It is unreasonable to rely on the intent clause or any other catchall phrase to pin the work on one prime or another.

The More Expensive: This most unfair and yet very common clause states that where the documents are in conflict within themselves the contractor is to assume the more stringent or more expensive interpretation. This assumes a lot. In all the months of preparation, neither the designer (nor CM, if applicable) found the discrepancy. Yet, a bidding contractor with strong competitive forces and without a professional license is expected to find that error in the weeks given to bid. This is a risk that is unmanageable by the contractor. It is, however, manageable by the author of the documents.