|Conditions of Contract and Agreements|
|The conditions of the contract are broad contractual conditions describing the responsibilities of, and relationship between, the owner and the contractor. They also describe the responsibilities of the architect and subcontractor. The general conditions of the contract are documents usually published by the Canadian Contract Documents Committee (CCDC). Different conditions exist for different delivery systems (e.g. CCDC-2 [Stipulated Sum Delivery System], CCDC-3 [Cost Plus Delivery System], and CCDC-4 [Unit Price Delivery System]).Some organizations (e.g. banks, large corporations, airport authorities, national defense, and other public sectors) may have their own terms of contract. Some owners may have their legal counsel prepare their conditions of contract, which should be bound to the project manual.
Supplementary conditions, on the other hand, modify the standard conditions of contract based on the project needs. The agreement is the signed contract between the owner and the contractor. It legally binds them and can be modified only by change orders.
Conditions of contract, supplementary conditions, and agreements are legal documents—they, along with the complete Division 00, should be prepared and reviewed in co-ordination with the owner’s legal counsellor or attorney, insurance, and surety advisors.
Divisions 02 through 49 are the technical specifications. The four basic methods of writing them are descriptive, performance, proprietary, and reference specifications. These may be used as different method in the same project manual or may be combined in the same section. The specification writer should be careful in combining different methods because it may create conflicts.
In this method, a detailed description of product characteristics is supplied, including its physical properties and workmanship, without using proprietary names.
Performance specifications are when the end result is specified along with the required tests and assurances to verify performance. This method does not limit the contractor’s ability to select an innovative system. Many building codes are moving toward performance specifications.
The predominant method used in specification writing involves calling out a product by indicating the manufacturer’s name, brand, and/or model number as the case may be. The major disadvantage is there is no competition and the manufacturer or supplier of the specified product may take advantage of the single-source specification. This drawback can be lessened by allowing equal and preapproved substitutions during the bid period. Closed proprietary specifications do not allow any substitutions, while open proprietary specifications permit substitutions.
Reference standards are material standards as published by government organizations, professional institutions, standards-writing organizations, and trade associations. This can save time by avoiding lengthy text.
Some technical sections may be written by consultants specializing in certain fields of architecture like sustainability, vegetated roofs, waterproofing, acoustics, or door hardware. It is very important the architect proofread and co-ordinate these sections with the project manual.
Federal government projects normally require non-restrictive specifications that outline a level of quality, do not limit competition, and give the contractor the option of getting cheaper material. Manufacturer names and other proprietary requirements are excluded from most federal government project specifications; instead, at least three products are listed, with a note others meeting the requirement are also acceptable.
Most federal, and some provincial, agencies in Canada provide their own Division 00–Procurement documents. Almost all use the post-2004, six-digit MasterFormat 2004 versions. In most cases, the representative of the agency is responsible for the procurement documents (Division 00). The agency in a government project is both the owner and the regulatory authority—the local authorities do not have jurisdiction on federal property. (On the other hand, local authorities do have jurisdiction over private property leased by federal agencies.)
Warranties and guaranties
Construction warranties and guarantees are required to protect the owner against defects and failures that may come up in spite of the contractor’s best efforts. Both words are generally interpreted differently. The former is an assurance made by the manufacturer it would assume the responsibility for its product, while the latter is a third party assuming responsibility for the product and installation of others.
There is also another primary difference in interpretation between warranties and guaranties. Guaranties are typically underwritten by a surety and have a cash value for completion of the any remedial work required as a result of product failure. Warranties can have a cash value or be simply – ‘my word’ – with no intrinsic value.
The roofing industry can provide a helpful example. If a roofing product manufacturer assumes responsibility for its product, it provides extended warranty for that material. In British Columbia and Alberta, the Roofing Contractors Association (RCABC or ARCA) supervises roof construction; if it complies with the group’s written instructions, a five-year extended guaranty is issued.
Extended warranties are not included in general conditions. Therefore, they should be mentioned in Part 1–General of the technical sections. It gives the owner recourse to seek remedy against subcontractors and manufacturers with whom it has no direct contract.
In its general documents, Canadian Contract Documents Committee (CCDC) includes a one-year “Warranty Period” (i.e. correction period) where a contractor is obliged to make corrections to defective work for one year following substantial completion.
Bonds and sureties
A bond is a written document issued by a surety company to guarantee a specified duty of contractor or the subcontractor. Even though the architect or the specification writer may have enough knowledge of bonds and sureties, the owner should seek the advice of its legal counsel or surety advisor. In addition to advantages explored in the paragraphs that follow, bonds provide some assurance of contractor’s financial stability. It is important to verify the surety company issuing the bonds is licensed and is financially stable.
The contractors are required to submit bid bonds at the time of submission of bids. They protect the owner against unjustifiable withdrawal of an accepted bid. This ensures the bidder will enter into contract with the owner based on the submitted bid and provide performance and payment bonds. The contractor is not liable if the bid is not accepted within a stated time or if it can demonstrate an honest error in the preparation of the bid.
Performance bonds provide owner protection; they guarantee if the contractor cannot complete the project for some reason and the owner has not breached the contract, the surety will investigate the owner’s claim and complete the project by hiring another contractor, providing funds for completing the project limited to the penal amount specified. However, if the surety disagrees with the claim, the owner may complete the project and take legal action against both the contractor and the surety company.
Also commonly known as labour and material payment bonds, these bonds guarantee the contractor will pay all labour, subcontractors, and material suppliers. It is intended to protect the owner against lien by labour, suppliers, and subcontractors.
Co-ordination between drawings and specifications
Drawings, schedules, and specifications go hand in hand—the construction documents are incomplete if any are missing. For smaller projects, specifications are not a separate project manual, but are included on the drawings. Drawings are graphic representations and show shapes, locations, sizes, quantity, the generic material, and juxtaposition, while specifications describe the administrative procedures, product quality, codes, standards, material, and workmanship.
It is very important a designated professional from the architect’s office co-ordinate the drawings and specifications (at the 60 and 90 per cent completion stages and before final submission). He or she should also proofread the specification and co-ordinate with the architectural drawing, as well as with the specifications and drawings of other disciplines, to avoid any discrepancies. Drawings and specifications must be checked for consistency, omissions, conflicts, discrepancies, terminology, extent of allowances and alternates, phasing of work, schedules, owner-supplied materials, and contract limitations.
The final check should be made to see if all the items noted in the check done during the previous phases have been incorporated in the final construction documents.
Cyrus Kabeer, CSP, NCARB, AIA, LEED AP, is an independent specification writer with an undergraduate degree in architecture and a master’s in urban planning with over 35 years of experience. Now based in Vancouver, he has worked as an architect in the United States, Canada, the Middle East, and India, providing design, working drawings, specifications, and contract administration for institutional, transportation, industrial, military installations, commercial, and residential projects. Kabeer has been doing specifications since 2006, finding his passion for spec writing. He can be reached at firstname.lastname@example.org.