Transcript Design Build Approach - American Society of Civil Engineers

Best Practices on Construction
Projects
Providing Open Project
Communication
Strategies for RFIs
January 16, 2009
Presented by the
Claims Avoidance & Resolution Committee
Best Practices Panel
Claims Avoidance and Resolution Committee
Subcommittee for Project Management Procedures
 Stephen A. Hess, PE
 Lawrence M. Lenahan, PE
 William Scott, PE
 John Ciccarelli, PE, CCE, PSP
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Communications Plan
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Partnering
Regular Meetings and Agendas
Project Document Management and Control
Document Policies
Decision Matrix
Strategies for RFI
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Claims Avoidance and Resolution Committee
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Project Document
Management and Control
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Submittal logs
Change order logs
Correspondence logs
Email
RFI log
Project management software
Conformed documents
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Documentation
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Verbal directions
Field directives
Daily reports
Record photos
Retention policy
Litigation hold
Privacy of confidential information (i.e. SS #)
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Decision Matrix
• Define Authority Levels
• Establish relationships
• Define communication routes
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RFI – Background
RFI is a communication tool to facilitate resolution of
or to clarify design document issues
 Typically contractor submits and designer responds
 Clarify a legitimate question concerning the design
documents
 Keep the project moving forward and build the job
 Can lead to Change Orders
 Process will vary from project to project
 Effectively coordinate and manage RFIs
 Assist documenting the history of the project
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RFI Background (continued)
• Reason - design documents are allegedly:
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Faulty
Ambiguous
Inadequate
Incomplete
Conflicting, etc…
• Claim submitted for acts or omissions of the Design
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Professional – based on RFIs
Perceived as providing a methodology to document
deficiencies in the contract documents and establish a
basis for additional costs and time
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RFI – When Used as Basis for Claims
(Abuses and Pitfalls)
 Submitted for a clearly identifiable item that should have
been addressed pre-bid
 Submitted significant number to establish support for
claim
 Submitted numerous and excessive RFIs (at the same
time) and overwhelm the designer
 Designer / Owner hinders the process and does not
provide a decision or respond
 Insufficient response frustrates the Contractor and does
not progress the work
 Use RFI to propose alternative construction methods or
substitute items (or-equal)
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Claims based on RFIs
• Response to RFI will be the basis for the claim
• Extreme position that the first RFI indicates incomplete
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design
Contractor claims for:
 Work performed based on response to RFI as a
Change Order
 Additional construction costs
 Delay damage and off-setting of liquidated damages
Owner claims for:
 Cost for delayed project completion
 Increased interest and expenses
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Best Practices
• Develop an RFI protocol/procedure to address:
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 The items that will and will not be accepted as an RFI
 Information which is on the contract documents will not be
addressed in a response
 Define the documentation and supporting data required
 Time frame for response
 Qualify that the response is not a Change Order
 Does not address construction means and methods or site
safety
 Will not review requests for substitute items as an RFI
Discuss the procedure at pre-construction meeting or include as
part of the bid documents
Discuss RFI issues prior to formal submittal
 “Confirming RFI” to confirm previous agreement
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Best Practices (continued)
• Proactively develop RFIs prior to construction or work in
an area
• Develop an RFI form and require project participants to
use it. Form should require:
 Concise statement of the issue (limit to one issue)
 Identify the specific plans or specification in question
• Develop internal procedure for receiving, handling and
responding to RFI in a timely manner
 Single source responsibility
 Procedure to forward to specialty consultants
 Communicate when the RFI will be completed
• Maintain log and track status (monitored by individual in
company, but not involved with the project)
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Best Practices (continued)
• During construction must reply timely and appropriately
• Inform the Owner if an RFI results in a design change,
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additional costs or delay and document the reason
“Dislodge” complex issues from the RFI process
 Use subcommittee approach for more complex issues
“Dislodge” resolved RFIs from the process
 RFI response then moves to Change Order or other
Contractual process
Prioritize RFIs
 Need response in: days, weeks, or months
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Claim Avoidance - Mitigation
Delays caused by incomplete or faulty design
• Know the Project schedule
• Manage the RFI process; do not just accept each as valid
and necessary
 RFIs must conform with the intent to clarify contracts
and design documents/specifications.
• Track the receipt and return of RFI submittals – take notice
immediately of dramatic increases in RFI count and/or
response time
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Claim Avoidance - Mitigation
Delays caused by late or lack of response
• Establish procedures, including the RFI submission format, within the
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Contract or prior to construction
Track receipt and return of all RFIs during the project and act to detect
trends
Know the schedule and prioritize
 Designer understand the importance of response
 Contractor pre-planning work and identify conflicts early
Do not “sit” on RFIs - accept and address or reject promptly
Ensure that RFIs are complete and do not accept RFIs that fail to
conform to submission requirements
 Clarification of Contract or design documents only
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Recommended Project Management
Procedure - RFIs
• Clearly define and use the RFI process with the designer
to seek clarification or interpretation of conflicts, errors,
discrepancies or ambiguities in the Contract Documents –
limit to clarification only
• Define and document the response time at the project
(kick-off) pre-construction meeting.
• Sample Contract language:
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Recommended Project Management
Procedure - RFIs
• Define the number of copies required (no oral or
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incomplete RFIs accepted)
Review and response to RFIs shall not constitute approval,
direction, or procedures for means and methods.
Limit each RFI to a single issue
Information discernable from the existing documents, or
addressing construction means and methods or site safety
will not be addressed
Designer should designate a specific representative to
manage the process
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Recommended Project Management
Procedure - RFIs
• RFI Form should include
 Chronological number for the RFI (Tracking Mechanism)
 Date issued
 Name of person and contractor requesting information
 Applicable Specification section and page number
 Applicable drawing number and title
 Clear statement of the request
 Remark for any increase in cost or time
• Designer should review RFI for compliance with protocol
and return any non-complying RFIs
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Claims Avoidance and Resolution Committee
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Recommended Project Management
Procedure – RFIs
• Upon receipt of RFI, responsible party should
 Calculate response due date
 Notify Contractor of date received and when
response should be expected
 Review for compliance with protocol and return any
non-complying RFIs
 Enter RFI into log
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Recommended Project Management
Procedure - RFIs
• RFI log – manual or electronic, should include:
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RFI Number
Name of requester and contractor
Date of receipt
Original response due date
Name of RFI reviewer
Date forwarded for review
Date returned to Contractor
Any extension information (date, etc)
Summary of response
Does response necessitate a change, extra or time
extension
 Other (trade or discipline involved,…)
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Recommended Project Management
Procedure - RFIs
• Forward response to Contractor and copy
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appropriate parties (Owner, CM, Resident
Engineer)
Contractor can disagree with response and
initiate meeting and resolution in another forum
– RFI is closed
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Recommended Best Practices
• Designer – understand your Contract and the
Contractor’s Contract provisions with the Owner
 Use RFIs with owner during design phase
 Required response time for RFIs and communicate
expected response time to contractor
 Know Contract roles and responsibilities
 Understand the Project Schedule
• Does the Contractor’s schedule need to or include shop
drawing review and other A/E related activities?
• Monitor and manage RFIs and utilize an RFI log
 Be prompt with response and/or document why not
 Don’t let paperwork languish!
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Benefits of Implementing Procedures
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Facilitates communication
Streamlines the RFI process
Maintains progress on the project
Documents project history
Helps mitigate and avoids claims
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Questions?
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Sample RFI
Form
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Company
Address
Sample RFI
Form
Company Address
(from Timberline
Software)
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Sample RFI Form
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Sample RFI
From ConstructWare Software
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Sample RFI Log
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Sample RFI Log
From ConstructWare Software
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Sample RFI Log
Transit Project
Transit Project
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Litigation / Legal Considerations
• United States v. Spearin, 248 U.S. at 136-37 (1918)
– United States Supreme Court: "if the contractor is bound to build according to
plans and specifications prepared by the owner, the contractor will not be
responsible for the consequences of defects in the plans and specifications."
– Implied warranty
• Cumulative effect of changes recognized that inefficiency
claim based on disruptive effect of individual compensable
changes:
– Jackson Constr. Co., Inc. v. United States, 62 Fed. CI. 84, 103-04 (2004)
(citing J.A. Jones Constr. Co., ENGBCA Nos. 6348, 6386-6391, 2000-2
B.C.A. (CCH) P31,000, at 153, 107, 2000 WL 1014011 (2000);
– McMillin Bros. Constr., Inc., EBCA No. 328-10-84,91-1 BCA P 23,351, at
117,102-05, 1990 WL 140900 (1990), aff'd, 949 F.2d 403 (Fed. Cir. 1991);
– Bechtel Nat'l, Inc., NASA BCA No. 1186-7, 90-1 BCA P 22,549, at 113,17778, 1989 WL 160470 (1989)
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Litigation / Legal Considerations
• Duty
– The government has a duty not to act in a way that will hinder or
delay the contractor's performance (“refrain from willfully or
negligently interfering with a contractor's performance.”).
• Malone v. United States, 849 F.2d 1441, 1445 (Fed. Cir. 1988), modified,
857 F.2d 787 (1988);
• SMS Data Prods. Group, Inc. v. United States, 17 Cl. Ct. 1, 6 (1989).
– For the government to be found liable for delay a plaintiff must
demonstrate that the government caused the plaintiff a compensable
injury. The government, therefore, is not liable for breach of contract,
or causes of action that rely upon "severe defects" in contract
drawings, or government hindrance of performance, unless SCBI
proves that the alleged defects, changes, or hindrances negatively
impacted costs and performance of the contract.
• Servidone Constr. Corp. v. United States, 931 F.2d 860, 861 (1991);
• Boyajian v. United States, 191 Ct. Cl. 233, 239-47, 423 F.2d 1231, 1235
(1970).
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Litigation / Legal Considerations
• SOUTHERN COMFORT BUILDERS, INC., Plaintiff, v.
UNITED STATES, Defendant.
No. 00-542C; UNITED STATES COURT OF FEDERAL
CLAIMS
67 Fed. Cl. 124; 2005 U.S. Claims LEXIS 225; July 29, 2005
– “SCBI alleges that many of the disruptions caused by the government
resulted from NASA's failure to respond to plaintiff's RFIs in a timely
manner, which addressed interferences or obstructions encountered
by SCBI. In the documents provided to the court, SCBI submitted an
RFI log indicating the times within which NASA responded to SCBI's
RFIs. Of the RFIs submitted by SCBI, many were answered in about
a week's time. Others were responded to more slowly by NASA,
including those which resulted in contract change orders.”
– Ruled in favor of the Defendant (two contract modifications had to be
paid by defendant, all other claims dismissed. Defendant awarded
counter claim).
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Litigation / Legal Considerations
• CADDELL CONSTRUCTION CO., INC., Plaintiff, v. THE
UNITED STATES, Defendant.
No. 04-461C; UNITED STATES COURT OF FEDERAL
CLAIMS; 78 Fed. Cl. 406; 2007 U.S; Claims LEXIS 285;
September 7, 2007
– Defective design resulted in plaintiff issuing large number of RFIs and
government failed to promptly and fully answer and as a result plaintiff
missed steel fabrication “window”.
– Defendant contended RFI process was obstructed as Defendant held
onto RFIs from subcontractors and submitted in large batches and
that Plaintiff did not demonstrate delay caused by allegedly slow
response
– Ruled in favor of the Defendant based on “contractor’s duty to
coordinate” and that the Defendant answered more than one third of
the RFIs in less than 30 days and more than 90% in less than 45
days
• Third party beneficiary status of contractors, Privity,
Economic Loss Doctrine, Accepted Work Doctrine
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Additional References
• Defending Claims by Owners & Contractors for Damages Arising
from RFIs and Approved and Unapproved Change Orders,
Seamen, Drew F. and Waggoner, Thomas F., at The 40th Annual
Meeting of Invited Attorneys, 2002.
• EJCDC Standard General Conditions
• AIA A201 General Conditions
• American Institute of Steel Construction Code of Standard Practice,
Articles 4.4.2 and 4.6
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