Architect’s Authority to Order Minor Changes during Construction|
A Valuable and Convenient Tool for Architects But Is Subject to Abuse
Arthur O'Leary, FAIA, MRIAI
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Concerns of the Parties.
Contractors generally accept that minor changes in the work will probably have to be made during construction even with the best of drawings and specifications. Some refining adjustments must generally be made to smooth out imperfections in the documents or the construction. When it is done properly, most contractors find this to be only a trivial inconvenience.
Architects are concerned that the contract documents be faithfully executed and that unconsidered deviations initiated by others do not escape the architect’s oversight and control. Even though the owner has ultimate authority, architects are understandably uncomfortable with the concept of an owner making even minor changes in the contract or design directly with the contractor without the architect’s involvement. Some, usually neophyte, owners might not realize that the architect’s administration of the contract and guardianship of the integrity of the design concept could be quickly reduced to a state of confusion, inefficiency, and ineffectiveness.
For these reasons, only the architect usually has the authority to order minor deviations from the contract documents. These are not changes in scope and other large scale variations of the original program.
Contractors are concerned that the architect’s authority to order minor changes does not become a blank check or lead to chaotic project management.
Owners are rightfully apprehensive about the possibility of the architect and construction people “wheeling and dealing” with the contract without the owner’s knowledge and approval. Therefore the minor change procedure must be open to oversight and approval by the owner.
Realistic construction contracts must allow for the practical necessity of minor adjustments while respecting the rights and concerns of the parties involved. Provisions of the AIA General Conditions strike a reasonable balance in the positions of owner, contractor, and architect in respect to the minor change procedure.
Understanding the Contract Documents.
Contractors, subcontractors, and suppliers cannot always perceive the exact meaning or application of the construction drawings and specifications that have been furnished for the project. This is not necessarily because they lack experience or are incapable of reading technical drawings and specifications. Often the field condition is not exactly as the architect’s designer or drafter had visualized and thus a field adaptation or adjustment must be devised.
Sometimes, ambiguity or conflict in the documents must be clarified or resolved and erroneous or unrealistic information or omission must be explained. Occasionally the architect will see where minor adjustments can improve the utility or refine the design objective.
Architect’s Interpretation of the Contract Documents.
It is among the architect’s contracted duties to interpret the meaning and intent of the documents when necessary. In most cases the contractor could probably devise a satisfactory solution to the anomaly and avoid disruption of construction progress. But this course of action carries with it the risk of later disapproval if the contractor’s expedient solution does not match the architect’s thinking.
When the contractor encounters a situation that requires interpretation, the architect should be notified, preferably in writing. The architect’s interpretations should also be in writing or in the form of drawings. Informal oral notifications and interpretations should be later confirmed in writing to the contractor with the same information sent to the owner.
An architect’s interpretation or clarification cannot be used as a device to impose a higher quality or standard of workmanship or materials than was originally specified. This would constitute an abuse of the process.
If, in the opinion of the contractor, the interpretation involves a change in the construction cost or time, a change order should be prepared for the owner’s and contractor’s concurrence and approval.
Minor Changes Ordered by the Architect.
In many situations the architect will find it advantageous or necessary to make minor changes in the work. The architect does not automatically or inherently have this authority unless it is given by the mutual consent of owner and contractor. The authority to order minor changes during construction is granted to the architect in the construction contract, usually in the general conditions. (See End Notes)
However, this power is not without qualification. Three significant limitations are specified:
(1) The change must cause no cost adjustment,
(2) it must not affect the construction time, and
(3) it must not be inconsistent with the intent of the contract documents.
A minor change authorized by the architect is required to be effected by written order.
Although the architect’s changes are specified to be binding on owner and contractor this may not always be practical for the architect to enforce.
If the owner and contractor both objected to the change, it would be very difficult for the architect to require their consent. They would just tacitly by-pass the architect.
If the contractor opposed the change, the mere quotation of a justifiable cost or time consequence would place it outside the scope of a minor change. Then it would require a change order and the owner’s approval not only for the change itself but also for the added cost or construction time.
If the contractor accepts the minor change but the owner objects, then the architect must decide whether imposing the change is worth the resulting alienation of the client.
Abuse of the Minor Change Process.
The minor change power cannot be used to compel the contractor to remove or change any work that has already been done in conformance with the contract documents. For example, moving a door or window already framed in accordance with the drawings. As a minor change, the architect could have ordered them to be moved before they were framed.
The same would be true in the case of changing a door swing that could be properly ordered before the door is hung and hardware installed, but not afterwards. To change the color or finish of a purchased item such as a lighting fixture would be a minor change if ordered before the fixtures were purchased, but might entail considerable time, cost, and trouble to change if the fixtures were already purchased and on hand in the electrical subcontractor’s warehouse.
In each of these examples, a change order agreeable to owner and contractor must be used to authorize additional costs or time.
Clearly, the architect lacks the authority to order changes involving additional cost or time unless previously empowered by the owner, preferably in writing.
Obtaining Contractor’s and Owner’s Viewpoints.
When an architect is making what is intended to be a minor change, it would be advisable to confirm with the contractor beforehand that there is in actuality no adjustment to be made in the contract price or time.
It would also be advisable to determine that the owner is not opposed.
Since the AIA contract provisions require architect’s orders for minor changes to be in writing, it could be simply a minute in the architect’s field observation report or in the form of a letter or memorandum, conveyed to both owner and contractor.
Another practical possibility would be to process it as a “no cost-no time” change order so that it will bear the signed acquiescence of owner and contractor.
The minor change authority when properly exercised can be very convenient in making subtle adjustments to account for differing field conditions and to effect advantageous design refinements.
Strict conformance with the procedure will also protect against later claims by the contractor for additional compensation or construction time or by the owner that the change was not approved.
If the construction contract includes the AIA General Conditions of the Contract for Construction, Document A201-1997, the architect’s minor change authority will be found in subparagraphs 4.2.8 and 7.4.1. It is the same subparagraph numbers if you are using the 1987 Edition of A201.
When AIA’s Abbreviated Standard Form of Agreement Between Owner and Contractor for Construction Projects of Limited Scope where the basis of payment is a STIPULATED SUM, Document A107-1997 is used, the architect’s minor change authority will be found in subparagraph 12.3.
Warning. This provision is not included in Document A107 issued prior to 1997.
Additional information on the architect’s minor change authority will be found in “A Guide to Successful Construction - Effective Contract Administration,” Third Revised Edition, by Arthur F. O’Leary, FAIA, MRIAI.
“A Guide to Successful Construction: Effective Contract Administration” by Arthur F. O’Leary, FAIA, MRIAI or “Construction Nightmare Jobs From Hell & How To Avoid Them” by Arthur F. O’Leary and James Acret are available from
bookworkz.com or call DCD at 800-533-5680.
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