by Grant A. Simpson, FAIA and Jim Atkins FAIA

I don't know why I get into gunfights. I guess sometimes I just get lonely.
Billy Clanton from the movie Gunfight at the O.K. Corral (1957)

Once upon a time in the West
The architect’s documents in this part of the world have always been inherently conceptual. Additional information has typically been required by the contractor from the architect during the construction phase. Up until the 1970s this information was transferred informally during face-to-face meetings or by telephone. Most construction contracts were lump sum and the concept of the contractor delivering a “complete” building was alive and well. No documentation of the discussions were needed or prepared.

The proliferation of lawyers and claims in the 1950s and 1960s, coincidental with the invention of professional liability insurance, gave rise to the need for increased documentation. The casual questions, once asked and answered, now apparently were determined to need a method for documenting “what, why, and when.” Thus the Request for Information was born.

A Request for Information (RFI) is most frequently and legitimately used by contractors to ask architects questions about the intent of the construction documents or to point out perceived omissions or conflicts in the documents. It began as a written document, now digital, and it is tracked through software management programs capable of producing detailed reports on the RFI status.

The contractor is solely responsible for bidding the work responsibly and for determining how the work will be divided among the trades. Accordingly, the contractor must coordinate the scope allocation for pricing and execution of the work of the various subcontractors to assure there is no gap in scope between the trades and that the work as it is constructed is coordinated. These are major elements of the contractor’s work plan.

As with any complex human endeavor there are likely to be questions about how the work will be coordinated and sequenced. In our experience, these subcontractor questions, once fielded almost entirely by the construction manager or general contractor, are now routinely passed through for the architect and engineers to answer.

Fast is fine, but accuracy is everything
Wyatt Earp

Lethal weapons
The need for effective communication notwithstanding, RFI’s can be very high risk documents because they are often used for the purpose of documenting or at least creating the illusion of negligence by the design professionals. When they are presented with a demand that the answer is needed as soon as possible, the implication is that any time beyond an immediate answer will delay the project.

If A201, Article 3.2.2 is followed wherein it requires the contractor to review the contract documents in advance to discover any missing or erroneous information, the RFI will be sent sufficiently in advance so that it will not be dependent on an immediate answer

…the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work
… These obligations are for the purpose of facilitating coordination and construction …

Logically, it follows that if the contractor is demanding immediate answers to their RFIs, they are openly admitting that they have not followed A201.

Another popular contractor allegation is that, by virtue of having to ask the RFI question, there is an omission in the drawings. This approach does not recognize or acknowledge that A201 anticipates such questions.

Article 3.2.3: … the Contractor shall promptly report to the Architect any errors, inconsistencies or omissions discovered by or made known to the Contractor as a request for information in such form as the Architect may require.

And,

Article 4.2.14: The Architect will review and respond to requests for information about the Contract Documents … If appropriate, the Architect will prepare and issue supplemental Drawings and Specifications in response to the requests for information.

A201 addresses that the drawings and specifications do not contain all of the information required to construct the project. Contractors who comply with A201 have coordinated their project and developed their work plan early, and their RFIs should not be dependent upon an immediate answer.

You gonna do something or just stand there and bleed?
Wyatt Earp, from the movie Tombstone (1993)

Live ammunition?
Are RFIs Contract Documents? They are not generally considered so because they cannot change contract cost or time unless incorporated into a contract modification such as a change order. However, in the event the contractor adjudges the RFI to not change cost or time, then the RFI may well be considered a contract document under the terms of A201, which states in Article 7.4:

The Architect has authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time …

The architect should use G710 to document minor changes.

When a contractor determines that the RFI answer changes the contract sum or time, the contractor is prohibited by A201 from proceeding with that portion of the work without the proper change document. A201, Article 7, is very specific as to the documents required for changes in the work.

Changes in the Work may be accomplished after execution of the Contract … by Change Order, Construction Change Directive or order for a minor change in the Work …

This is the source of much dispute in the industry when the contractor elects to proceed with the work anyway, treating the RFI as though it is a Construction Change Directive. When these disputes become claims, contractors often allege that they were directed, by the architect’s RFI response, to do the additional work.

You may ask: Is it reasonable for the contractor to immediately know the RFI answer is increasing the contract sum? The answer is yes, if the contractor has adequately prepared a work plan and coordinated the trades.

The law is only a word unless it's backed up by the truth.
William Barclay “Bat” Masterson, from the movie Bat Masterson, 1959

Firearm proficiency
The RFI should be used to obtain information that the requesting party cannot access through research, document review, or other reasonable means. Moreover, the RFI should address information that does not already exist in a discernable form, or is not reasonably inferable from the documents.

Information may not be specifically stated in the documents, but it may be inferable from them. That is, if a wall section is not cut in a particular area, but all other wall sections contain specific components, it is reasonable to infer that the same components are required for the area in question. A201, Article 1.2.1, is very specific in explaining this issue.

The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work … The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.

However, some contractors seek to split hairs, alleging that if each similar condition is not specifically detailed, the work is not in their scope. Although this is contrary to A201, since “reasonably inferable” is to a degree subjective, it frequently becomes an issue in dispute.

You called the thunder…well now you got it!
Wyatt Earp, from the movie Tombstone (1993)

Potshots
Some of the ways that RFIs can be misused are:

Innapropriate questions: An RFI may ask for the size of fasteners to attach sheathing on the building. This is a proprietary issue that is typically determined by the product manufacturer.

Means and methods: Questions about means and methods are inappropriate unless the specifications have dictated such.

Substitution request: Contractors sometimes ask in an RFI if an alternate product model or manufacturer can be used instead of following the prescribed process for seeking substitution approval.

Ambiguous answers: Asking a question over and over in a different manner and claiming the repeated RFIs indicate that the previous questions were not adequately answered.

Biased reporting: The contractor’s RFI log will likely reveal that it is to track the architect’s shortcomings in addition to the routing and answers to questions. The emergence of document management software has aided and enhanced this objective. In project meetings these days between the owner, architect and contractor, reports from the RFI log are used to display the delinquency of the architect for all to see.

Interestingly, similar infractions by the contractor are seldom if ever tracked, documented or displayed. An item such as the submittal schedule, which is necessary for the architect to schedule and coordinate the submittal review process, is infrequently produced by the contractor as required by contract. Similarly, too few architects or contractors track how timely the contractor’s submittals are relative to the submittal schedule.

Inflated numbers and response time: Recently, some contractors have begun using an interesting approach that serves to artificially increase the number of RFI’s. For example, a contractor issues an RFI and the architect answers and returns it to the contractor the next day. Two weeks later the contractor sends another RFI to the architect asking for confirmation of the prior answer. The architect confirms the answer on the same day.

The contractor’s Web based database now reflects that RFI 100 was originally issued to the architect on February 21 but was apparently not closed out with an acceptable answer until the second RFI 13 days later. This technique serves to artificially inflate the number of RFIs and the apparent length of time the architect took to answer.

Another favored tactic to boost RFI count is to issue numerous RFIs asking essentially the same question. For example, the slab edge is not dimensioned around an elevator shaft. The contractor submits 4 RFIs for each the north, east, south, and west slab edges. One RFI would have sufficed.

Many RFIs using these tactics would be considered “frivolous” RFIs, even though the information requested was necessary, simply because of the abusive way the RFI was submitted.

I'm a gambler. Money's just a tool of my trade.
Dr. John 'Doc' Holliday from the movie Gunfight at the O.K. Corral (1957)

Dead on target: proposed solutions
Since the contractor should be the expert on means and methods, it follows that the contractor is also likely best suited to determine the appropriate solution to a troublesome condition. To facilitate this effort, AIA document G716, Request for Information, provides for a “proposed solution” to be included by the sender. This usually gives the architect a viable option to immediately consider, and it is frequently chosen as the best solution.

Returning fire
How long should it take to answer an RFI? When claims are made against architects a popular allegation is that the architect took too long to provide an acceptable answer and thus delayed the project. Some plaintiff’s experts actually take the position that the architect’s performance must be measured against when the contractor wanted the answer rather than a reasonable time relative to the RFI subject matter. This is a patently absurd proposition as it has nothing to do with realistic time limits, reasonable expectations, or the requirement for the contractor to plan the work in advance.

Obviously, how long it takes to answer an RFI will depend on the content of the question. For this reason architects should take care when agreeing to contract provisions or writing specifications that state: “The Architect will respond to RFIs in 10 working days”. Much more preferred is: “The Architect will respond to RFIs in an average of 10 working days. It is acknowledged and understood that some RFIs will take longer to answer than others.”

This section was added to A201 in 2007 to address the timing issue:

4.2.14: The Archithect will review and respond to requests for information abouot the Contract Documents. The Architect’s response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If appropriate, the Architect will prepare and issue supplemental Drawings and Specifications in response to the requests for information.

I want your blood. And I want your souls. And I want them both, right now. Johnny Ringo, from the movie Tombstone (1993)

Fire power: How many RFIs?
Contractors and owners frequently seek to make a claims issue based on the number of RFIs on a project. The overall quantity of RFIs is not necessarily a measure of the quality of the construction documents or the architect’s services. They can just as easily reflect the poor quality of the contractor’s services or they may be an attempt to obtain clarifications that the contractor in the course of planning and coordinating the work should have made. An unsophisticated or inexperienced contractor may request more information than one with more resources and experience. The simple fact is that contractor-generated RFIs are not presumptively valid.

It is the timing of the RFIs and the nature of the information requested that determine the impact to the project and not the total number. RFIs are a common communication tool in the industry today, and the overall quantity is just as likely to be a measure of the way the contractor or construction manager administers the work as to be a measure of the quality of the construction documents or the architect’s services.

Simply trying to cite statistics without presentation of RFI content and a detailed cause and effect analysis is no justification of damages or delays. Further, it is the timing of the RFIs and the nature of the information required as well as the cause and effect relationship that determines the impact to the project.

Obviously, the architect’s documents, if insufficient, can cause more RFIs. Just as obviously, insufficient contractor services, or intentional prospecting for RFIs by the contractor can cause more RFIs.

However, be assured that contractors who do not want a large number of RFIs generally do not have a large number. They strive to find the information they need to build the building without the cumbersome and time consuming RFI process. You will find that they employ some, if not all of the approaches listed below.

• Experienced employees
• Effective contractor’s work plan
• Thorough research
• Efficient meetings
• Effective trade coordination
• Early project buyout
• Early issue resolution
• Pre-installation conferences
• Good relationship with owner and architect
• Claims avoidance.

A contractor can use the RFI process as a way to increase profit instead of for its true intended purpose, to enance quality and efficiency. It is interesting that some contractors who proliferate RFIs seem unconcerned about their reputation or their track record in project delivery. It would be interesting to see the results of a project where a primary objective of the project team was to have the fewest RFIs possible.

Have you ever wondered why you and I have been part of so many unfortunate incidents, but are still here?
Doc Holliday to Wyatt Earp, from the movie Wyatt Earp (1994)

Who fired that shot?
The first RFIs originated from contractors, and since contractors require more information and clarifications during construction, they send more RFIs. However, information is required by every team member, and the owner and architect can also send RFIs. In fact, using RFIs to request and track information responses is the best way to maintain documentation on time driven activities. AIA Document G716, Request for Information, clearly states on the instruction sheet that the document can be used by all parties.

Go ahead, skin it. Skin that smoke wagon and see what happens.
Wyatt Earp, from the movie Tombstone (1993)

Draw
Requests for information are a common tool frequently used between contractors and architects in the design and construction industry today. Some contractors use them to facilitate communication with the architect, and some use them to facilitate making claims. Contractors who want to send RFIs seem to generate more, and contractors who do not want to send RFIs seem to generate fewer.

A high number of RFIs on a project does not always indicate shortcomings on the part of the design professionals. Inexperienced construction staff who struggle with reading the drawings, accelerated project schedules, and poor preparation by the contractor can be among the causes of increased RFIs.

RFIs are an acute source of consternation for design professionals when they are used in a frivolous or unfair manner. Send us your war stories. Tell us how many RFIs are reasonable. Do you have a procedure for controlling the number of RFI’s on your projects? Share your experiences with others in an effort to develop strategies for use in the “Corral”. The next time you’re staring down the barrel of some tough looking RFIs, remember to be calm, be sure your holster is clipped on your belt and your Blackberry is secure inside, and please heed our warning, be careful out there.

This article was originally published by Texas Architect.