Assigning Responsibility

One of the biggest questions in construction is "Who is responsible?" It would seem that a fair allocation of risk would be based on the authority and knowledge of the parties involved, but joint-and-several liability and the misguided urge to go for the deep pockets can obviate most attempts to be fair. Still, if the initial assignment of risk makes sense, it will be less likely for challenges to end up in court.

Assignment of risk is the primary function of the conditions of the contract; they explain what each named entity must do for the others and what to expect in return. Commonly used standard forms of general conditions are very similar; each explains what the contractor must do for the owner, and what the owner must do for the contractor; the duties of a separate design professional are also enumerated. There are some procedural differences, and slightly different views of who is responsible for specific items, but any competent design professional, contractor, or owner should be able to work with any of them.

Owner-generated general conditions, used by public entities and large owners, are often egregious; they are excellent examples of how to not write general conditions, and would make good study tools for any of CSI's certification programs. Written by people whose main goal seems to be to confuse the reader, they are anything but clear and concise. In many cases, they also try to absolve the owner of all risk, making either the design professional or the contractor responsible for things they simply cannot control.

Even when public entities or large owners make use of standard general conditions, they generate supplementary conditions as long as the document they are modifying. These are curious documents, which, besides trying to avoid risk, often restate provisions already found in the general conditions, add needless clauses, and ramble on about policies in a way that is sufficiently vague that they are unenforceable.

Design professionals and owners often make use of the conditions of the contract to "fix" problems from previous work. In so doing, they almost always end up specifying in the supplementary conditions things that really belong in the specifications, usually in Division 1 - at the same time repeating existing requirements. In nearly every case of creative use of supplementary conditions that I have seen, the problem in question was already addressed in the contract documents.

This approach is like that of the person speaking to someone from a different country, believing that talking louder will make up for the lack of a common language. Using the supplementary conditions to fix other parts of the contract documents is simply yelling the same thing louder to make up for inaccurate specifications, incorrect interpretation, or lack of enforcement.

2002 Sheldon Wolfe, RA, CSI, CCS, CCCA

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