Architects, consultants and contractors learned tips for avoiding disputes during the design and construction phase of a project, starting with mapping out their scope of work in the early stages and ensuring everyone is on the same page.
Handling Design Issues Without Disputes, part of the WeirFoulds Tools for Success series, was hosted virtually recently.
“Obviously they (consultants) are going to be responsible for preparing the actual design of course, but beyond that you do want to pay attention to what other obligations they have under the contract,” said Jeff Scorgie, partner in the construction practice group at WeirFoulds.
Scorgie told the audience there are a lot of standard form owner-consultant contracts available outlining the roles and responsibilities of each party, including those from the Ontario Association of Architects and the Royal Architectural Institute of Canada.
Some standard forms will have a schedule that lists all the consultants’ services and the parties will select which items form part of the consultants scope of work and which don’t.
“You do want to pay attention to this section and have a clear understanding of what the designer will and won’t be responsible for,” Scorgie explained.
“I sometimes see confusion around this. For example, who is going to be responsible for performing site surveys or determining the location of utilities, contacting and dealing with utilities if things have to get relocated, incorporating that into the designs.”
When it comes to contract administration, moving from the design stage into the project construction stage, the duties of the consultant will include rendering interpretations or findings on issues that are raised by the contractor during construction.
The contract between the owner and the contractor will usually set out a dispute resolution process and very often the consultant is the first stage of that, Scorgie said.
“If you look at the CCDC 2 construction contract…for example, there is a clause in GC 8.2.3 which is very important and often goes unnoticed,” he noted. “It says that both parties, the owner and the contractor, are deemed to have accepted the finding of a consultant on a particular issue and that they are waiving and releasing the other party from any claims in respect of that issue unless either of them sends a written notice of dispute to the other party within 15 working days of getting the consultant’s finding.”
The consultant also will often have the role of determining whether the contractor is in default of its obligations under the construction contract.
For example, in the CCDC 2 contract, the owner can’t terminate the contractor for default or for cause unless the consultant has provided a written statement detailing the contractor’s failure to comply with the requirements of the contract.
“This catches a lot of owners off guard,” said Scorgie. “Sometimes they’re partway through, the project has been a disaster, they want to terminate the contractor for cause and they don’t realize they actually can’t do that.
“It is actually something that in my view that owners might want to consider removing from their construction contracts.”
Some contractors argue that because consultants are hired by the owner, they can’t really be an impartial third party.
“At the end of the day yes, we are retained by the owner…to administer the contract and that means going onsite during certain intervals, becoming familiar with the work and also reviewing the work that is done,” guest speaker Natalie Taleb, managing partner with Square Vis Architects, told the audience.
“Regardless of who has retained the consultant, the requirement of that role is to remain impartial and not have favouritism to either the client or the contractor.”
Contracts between the owner and the contractor, the CCDC, for example, have an entire section that describes what the consultant is doing and sometimes there can be discrepancies between contracts.
“It’s important to appreciate the consultant isn’t party to that construction contract,” said Scorgie.
“I’ve sometimes seen these situations where the owner’s contract with the consultant has maybe a very limited set of obligations on the consultant on what they are going to do during contract administration but then their CCDC construction contract says they are doing a lot more and that can create a real problem for the owner.”
A fix for that, he said, is for the owners to add language to the contract with the consultant that says, “they’re going to perform all the roles and responsibilities of the ‘consultant’ in the CCDC construction contract that they’re going to enter into with the contractor.”
Scorgie and Taleb agreed it is beneficial for owners try and settle on a form of construction contract early in the process so everybody is on the same page.
“I know owners often hate doing this because they have so many other things to focus on during design but if you can, settle on your form of construction contract…when you’re entering into the design contract,” said Scorgie.
“I know a lot of owners are going to cringe when I say that because they think they have a lot more time to do that but for this very reason I think that’s important.”
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