Author Archives: Melissa Dewey Brumback

Expect the Unexpected (your design contracts in a post-COVID world)

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Have you adapted your post-COVID practice to better plan for the “unexpected” ?  In particular, have you looked at–and revised– your professional services contracts to give yourself a little more breathing room for unaccounted issues that may arise?  If not, no time like the present.

Don’t like that saying?  How about ” a stitch in time saves nine?”  No?  Still nothing?  What about a picture of something so completely unexpected it shocks you– say, a fireman commuting home, in fire-fighting regalia, on a tricycle?  Okay, here you go…

Fireman-bikerNow that I have your attention– you should make it a practice to regularly review and update your professional services agreements, and you should consider issues such as:

  1.  Does your agreement provide for extra compensation if you have to spend more time or a longer period providing construction administration services for material delays or labor shortages?  If not, it should.
  2. Does your agreement have a well-written “act of God” provision– one that includes pandemic/epidemics as part of the “act of God” conditions in which a term may become void?  If not, add it now!
  3. Have you considered whether you want arbitration instead of litigation if a lawsuit does arise?  And if you want to arbitrate, does your contract give specifics, like how many arbitrators will decide the case?  These things can be added now with little effort, or you can pay your lawyer to negotiate them down the line.  Guess which is cheaper?

You *do* have a good, solid contract to begin with, correct?  If not, I’ve previously given examples of how to craft helpful scopes of services and how to add the protection of a well-crafted exclusion to your scope of services.   Check them out, and be ready for the next biker-fireman surprise in your future.

Photo (c) MelissaBrumbackCreative Commons License

Substitutions on a construction project — a Specification Writer responds

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In response to the post about Substitute Materials on a construction project, Phil Kabza explains how his company, SpecGuy, handles tracking of all such materials on a project.specguy

Phil writes:

Excellent and important topic, about which there is much confusion among design professionals and contractors. We try to maintain definitions for:

  • Pre-bid requests for prior approval of proposed comparable products where products are named in the specifications
  • True pre-bid substitution requests that present an alternate type of product from that specified (ie., not “comparable” but perhaps suitable)
  • Post-award requests for approval of proposed comparable products “for convenience” of the contractor with or without credit to the owner
  • Post-award requests for approval of proposed comparable products “forcause” due to unavailability, failure to meet specified warranty, etc.
  • Submittal of non-complying products “to see if we can get away with it.”

Public agencies, owners, and design firms all have different approaches to each of the above, which requires the specifier to carefully define their terms in Division 00 Document “Procurement Substitution Procedures” and “Division 01 Section “Substitution Procedures,” as well as establishing consistency across the several hundred specification sections.

Thanks, Phil, for your boots on the ground perspective of how to consistently handle the specifications when handling substitute materials or products.

Your turn.  Thoughts or Phil or me?  Share below, or shoot me an email.

Substitute Materials — what are your duties? what are your risks? (law note)

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In managing a project as the design professional, you are called upon to wear many hats.  One of those hats is that of material specifier and, at times, substitute material approver.  What are your duties in looking at substitute materials?many hard hats

As always, the legal answer is “it depends”.  In part, it will depend on your role on the project and what, specifically, the contract says.  However, at its most basic, you can be sued for accepting an out of spec substitute material.  This is so even if you believed the spec met requirements based on information that the contractor gave you.  So, tread carefully in this area.

Do not assume any information that the contractor presents to you– take the time to research for yourself, call the manufacturer, and otherwise ensure that the product will work.

If the substitute is okay but will mean the Owner will get something a little different, make sure the Owner knows that and has approved the change.  Needless to say, get this consent in writing, as it could be evidence one day.

While you may not ultimately be held responsible for approving a substitute that is inferior, you don’t need the headache of finding that out from a Court.  Save your time, and your stomach lining, and make sure it’s correct and documented on the front end.

Have you been called upon to approve questionable substitute materials?  How did you research whether they would work or not?  Share in the comments below or drop me an email.

Are we having fun yet? Construction in a post-COVID world (law note)

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Remember how I said to never assume?  Yeah, about that……   even when you plan for failures, mistakes, and other problems, sometimes things get so outside the realm of what you considered that it can leave your construction project spinning.  Take, as a random example, a world-wide pandemic that shuts down supply chains, shuts down job sites, and limits the labor pool.  Just as an example.

What does construction law say about pandemics?  They fall under an “Act of God” that you may have read about in your contracts, or in the contracts of the contractors working your projects.  An “Act of God” is an event that is not foreseeable, and as such not something the parties could have anticipated when they drafted the contract.  Acts of God generally excuse a party’s failure– for example, a contractor’s failure to complete the project on time can be excused when an “act of God” has occurred. 

By now, you’ve dealt with the practical fall out, one way or another.  Many projects no longer made financial sense for your clients.  Others may have been modified, reduced in scope, or had substitute materials put in place.

What do you, as an architect or engineer, do now, faced with the potential for further shut downs, supply chain issues, and other COVID variants?  The short answer is to give yourself options and assume changes will be needed to your own scope of work on each project.  Consider:

  1.  If the project needs to be re-designed to account for shortages, can that be an additional service that you get paid for?
  2. If the project requires substitute products, how many of those are part of your basic service, or is there a point at which you should get paid hourly for researching, reviewing, and approving substitutes?
  3. If the project takes a lot longer than anticipated to complete, whether due to government shut downs, labor issues, or supply chain problems– can you get paid increased contract administration fees?  And, is there a contract provision that allows you to increase your hourly rate after X number of months, to reflect inflation?

These are some of the ways that you, as a designer, can protect yourselves from ongoing delays, and make sure you are not tied to a project without a way to recoup your extra costs.

Thoughts?  Questions?   Share what’s worked for you or what you’d like to learn more about in the comment section below.

 

 

Never, ever, ever assume! (or, how a stuck shoe is like a construction project assumption)

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This summer, I had the fortune of taking a trip to Europe.   The first place I visited was Amsterdam.  A lovely town with a lot of culture and more canals than you can shake a stick at.  I was meeting family there, but had hours to kill ahead of time.  So, I decided to take the train from the airport into the City Centre, leave my bags at the train station luggage locker, and begin exploring.

My plan took its first misstep when I attempted to board the train.  Not being in a hurry, I let the other passengers get on first.  Sure, I noticed the train conductor blowing his whistle while I stepped onto the train, but figured I was fine since I was already on the steps up.  Until, that is, the door began to close, with me in the doorway, suitcase in the train, one foot inside, and one foot mid step up to the cabin.   The door closed on my backpack (which was still on my back), but I managed to force it into the train compartment.  My shoe, however, was not quite as lucky.  Part of my shoe made it inside, and part was outside the door.

 

shoe

The shoe in the doorway

No worry– just look for the door release mechanism, right?  Wrong!  There was none.  The train started up, with my shoe still halfway in and halfway out of the train.  (Luckily my foot itself made it inside all in one piece).  The conductor came along to scold me, and told me that he could *probably* rescue my shoe once we got to Central Station.  In the meantime, I sat on a nearby jump seat, keeping tabs on my shoe and  fuming that this was *not* the way I planned to start my vacation.  Long story short– the train conductor was able to salvage my shoe, but not without a lot of commentary on how I should never have boarded the train after the whistle blew.  Lesson learned.

HOW, you may ask, does my shoe tale relate to your construction project?  It’s in the title:  never, ever, ever (ever, ever, ever) make assumptions.  I made the unfortunate assumption that the train doors in Europe would release when met with any type of obstacle, since they tend to do that here.

You make that assumption when you do projects for clients without a formal letter or contract outlining your scope of work.  Sure, you’ve worked with a client before, and know what he wants.  But maybe times have changed, or management has a new policy in place.  Maybe in the past, you could simply email the client that you needed to increase your hourly rates.  Now, you are required to keep the same hourly rates for the entire project.   Unless, that is, you already planned for regular increases in your contract itself.

Or, maybe you are working with a new owner client.  That owner may assume that you will do certain things for your fixed rate, that are not standard and were never even on your radar.  Do you have exclusions to your Scope of Work in the contract?  If so, you are set.  Point the client there, and you should be done.  Or, you could be like me, and go shoeless into the City.  Your choice!

Have you ever made an unfortunate assumption?  If you did and lived to tell the tale, share in the comments below or drop me a line.  I want to know that I’m not the only want that has stuff like this happening to them!!!