Don't Forget the Subcontractors|
How the Architect's Contract Administration Affects the Subcontractors
Arthur O'Leary, FAIA, MRIAI
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We all know that there is no contractual relationship between the architect or owner and any of the entities controlled by the contractor. Most construction contracts are based on this general principle. However, we must recognize the indirect relationship and how the architect's and owner's actions and procedures affect the subcontractors and suppliers.
The general contractor contracts directly with subcontractors and suppliers, who in turn, enter into contractual relationships with their sub-subcontractors and suppliers and so on. Most of these second and third tier subcontractors and suppliers are completely unknown to the architect or owner and sometimes even to the general contractor. Nevertheless these are the people and organizations who actually supply over 95 percent of the labor and nearly 100 percent of the materials and equipment that architects specify.
These entities are too important to the success of any project to be completely ignored by the architect. Subcontractors account for 3 percent of the claims made against architects' insurers. It is clear that these second and third tier contractors feel strongly that architects should have some duty to recognize and consider their position.
Construction conditions controlled by the architect often cause frustration, dissatisfaction, and anger among subcontractors and suppliers. In some situations, it is simply a matter of the subcontractors' suppressed desire to express relevant opinions based on their superior knowledge of their specialized portion of the work. In other cases, it is of deeper significance, descending to the nitty-gritty level of economic survival.
Whenever an architect makes a harsh or insensitive decision on the contractor's questions, suggestions, or claims, it is usually passed on to the subcontractors or suppliers who must actually bear the burden of inconvenience, economic loss, and disappointment. The architect seldom hears about these practical difficulties, being insulated by the general contractor. Frequently the complete viewpoint of the subcontractor is not effectively expressed or advocated by the general contractor.
Relationships among the Parties Governed by Contracts
The interrelationships among architect, owner, contractor, subcontractors, sub-subcontractors, material suppliers, and manufacturers of materials and equipment are governed by the contract documents of each specific construction project. To illustrate this article, it will be assumed that all of the contracts will be on AIA standard form documents. See sidebar.
The prime construction contract is between the owner and the contractor and there are no other parties to that contract. The AIA General Conditions, AIA Document A201, makes it abundantly clear that the contract creates no contractual relationship between the owner and any subcontractor or sub-subcontractor. (A201, 1.1.2.) This may also extend to exclude suppliers and manufacturers of materials and equipment from any contractual relationship. It is obvious that, except in unusual circumstances, there can be no contractual relationship between the architect and the contractor, subcontractors, sub-subcontractors, suppliers, or manufacturers.
Architects should thus condition their behavior and if possible influence that of the owner to avoid interfering with the relationships between the contractor and those contractually subordinate. They also should avoid inappropriate conduct that could create the appearance of relationships where none exist.
During the design period and when construction documents are being prepared, architects need to consult with various authentic sources of technical information. They often call upon friendly contractors and subcontractors to discuss pragmatic solutions to practical problems.
Representatives of building material and equipment suppliers and manufacturers regularly call on architects to point out the favorable characteristics of their products and to urge their use. After reviewing their catalogues and promotional literature, architects often contact suppliers and manufacturers for additional data on their products and to discuss suitability, details of application, installation, availability, costs, and warranties. Conferring with these sales agents and technical representatives is an invaluable source of relevant information. At the time of these discussions and solicitations of advice, the construction contract has not yet come into existence so there is no restriction on the architect's communication with these sources. However, after the construction contract is signed, the architect's interactions with these second and third tier contractors will be governed by the contract.
The architect should respect provisions of the AIA General Conditions which require all communications with subcontractors and material suppliers to be channeled through the contractor. (A201, 4.2.4) Subcontractors are similarly bound by the same provisions of the contract. Sometimes it would seem very convenient for the architect to continue the friendly direct relationship with these cooperative sources of information, but it would be better practice to at least inform the contractor of these informal communications. The architect must be careful not to interfere with the contractor's contractual relationships. It is very easy to create false impressions and unrealistic expectations. What might seem an innocuous statement by the architect could be construed by a subcontractor or supplier as approval for changes in specification, price, construction time, or other conditions.
It would be safer, and less likely to cause misunderstandings, to communicate in writing and through the channel provided by the contractor. Any of the architect's consultants who must communicate with those controlled by the contractor should similarly route their inquiries through the architect and contractor as required by the AIA general conditions. As a practical matter, this can be accomplished by sending copies of all communications to all interested parties. For example, when the architect's structural engineer must communicate with the contractor's steel fabricator on a routine matter, a direct letter from engineer to fabricator with copies to architect and contractor will be more efficient than separate letters from engineer to architect, architect to contractor, contractor to fabricator and back again. By this procedure, the architect and contractor can monitor the transaction and can take timely steps to preserve the contract when deemed necessary.
Architects' on-site conferences with subcontractors should always be in the presence of the contractor or superintendent and any instructions given, decisions made, or agreements reached should be reported in the architect's written observation report. Office conferences with subcontractors should be similarly monitored by the contractor and duly reported to all concerned.
The majority of shop drawings, product data, and samples originate with subcontractors or suppliers. They should be submitted to the architect only through the contractor who must have reviewed and approved them first. (A201, 3.12.5) Sometimes in the spirit of cooperation and as a time saving expedient an architect may accept submittals directly from a subcontractor. The architect should not violate the contract procedures in this or any other manner as it creates an embarrassing precedent making it difficult to hold the contractor to any of the administrative provisions in the contract. It also negates whatever little liability protection was inherent in the specified procedure.
All submittals should similarly be returned through the contractor. If, occasionally, expedience dictates a shortcutting of the specified procedures, the architect should at the very least see to it that the contractor is informed of every step in the progress of submittals as well as given the opportunity of independently reviewing and approving them.
Contractor's Right to Subcontract
The term subcontractor means any person or entity who has contracted directly with the contractor to provide labor or materials or both. It does not include any separate contractors who have contracted directly with the owner or any subcontractors of separate contractors. A sub-subcontractor is any person or entity who has contracted with a subcontractor. Suppliers of materials or equipment can be subcontractors or sub-subcontractors. (A201, 5.1.1 and 5.1.2)
Consistent with the contractor's duty to maintain control over the means, methods, techniques, sequences, and procedures of construction, it is the contractor's prerogative to let subcontracts, purchase materials, and assign work in any desired combination without regard to the architect's division of work in the specifications or on the drawings. (A201, 1.2.2) However, architects should endeavor to keep abreast of work divisions prevalent among building trades and labor unions and write their specifications accordingly. Otherwise, avoidable labor disputes can be inadvertently precipitated.
Additionally, inartful specifying of some work will cause the item to be missed by the usual supplier. For example, if wood blocking needed for electrical fixture installation, normally installed by the carpentry contractor, is specified under electrical work, the electrical estimator might not include it as it is not normal electrical work, whereas the carpentry estimator is not likely to examine the electrical section of the specifications and thus will miss the item. The result is that the general contractor will lack bid coverage on the item. Neither subcontractor is likely to willingly concede if the value is sizeable. So, the general contractor suffers the loss.
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Part Two will be in the May/Jun Issue of Design Cost Data. It will cover Subcontractor List, Subcontract Agreement,Unwritten Expectations, Architect's Authority to Reject Work, and Architect's Administration of Payments.
Standard AIA Documents used in illustrating the contract relationships discussed in this article.
Between Owner and Architect:
Owner-Architect Agreement, AIA Document B141-1997
Between Owner and Contractor:
Construction Contract, Stipulated Sum Basis, AIA Document A101-1997
Construction Contract, Cost Plus Basis, AIA Document A111-1997 and
General Conditions of the Contract, AIA Document A201
Between Contractor and Subcontractors:
Agreement Between Contractor and Subcontractor, AIA Document A401-1997
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