October 9, 2009
 
AIA Members Speak Out
More Gunfire at the RFI Corral

Summary: The Sept. 25 article, “Shootout at the RFI Corral” by Grant A. Simpson, FAIA, and Jim Atkins, FAIA, elicited a number of e-mail responses from AIArchitect readers. Edited versions of some of those comments are presented here.


When Change Orders Become a Profit Center
For over 35 years I had an architectural and engineering practice of medium size (average 25 persons). We did many kinds of projects including numerous schools, hospitals, commercial work, and for nearly all government agencies—DOE, Navy, Air Force, GSA, USPS, etc. I am now retired.

I witnessed the exact chronology that this article intones—the steady transition of handling change orders as a fairly minor effort in the work, usually worked out on a cordial cooperative basis, to the myriad of RFIs many contractors send today. Contractors now often develop these requests with the pure intent of increasing the project costs and therefore the contractor's remuneration. With the reduction of pride in the work there seems to have been a corresponding rise in the number of RFIs.

On one particularly troublesome school project in the l990s, I recall one of the subs telling me that the young brash superintendent at weekly meetings would rub his palms together and ask repeatedly: "How many change orders do you have for me this week?" and chide them if they didn't have enough. This firm frequently sent in a flood of RFIs, some with "rule of thumb" costs instead of actual estimates. Some claims, of course, were legitimate, but many were frivolous and some downright ridiculous. As an example, the contractor left a large roof open and unprotected for a weekend and then sent an RFI claiming additional payment for damage to existing insulation, etc. All claims were resolved finally for either no change or for pennies on the dollar to the contractor, but only after an unbelievable amount of our time, consultant hours, outside estimators’ time, attorneys’ time, etc.

From what I hear from colleagues still in practice, this sort of thing has often become the rule rather than the exception, especially on larger projects. Perhaps that is the impetus behind some of the design-build projects. I did not have experience with those.

I would emphasize a special caution on major remodeling projects (and our firm did many). Matching up new work with existing conditions is a challenge the architect and especially his or her consultants must do well to avoid detail and delay claims by contractors.

Of course, in bid work, owners love low bids—however, getting the right contractor will always be most important and lucky. Usually, the applicable protective clauses are in the modern carefully considered contract documents, but the contractor often will try to make a case anyway—being knowledgeable and “cordially firm” helps. Keep good records.

On the other hand, we did have an Air Force base crew readiness building in which the contractor put up a wall poster at final inspection bragging about how few change orders had been claimed during the job. He had also done a very good job. So maybe there is hope as long as architects do good work and protect their back sides as much as possible.

The Simpson/ Atkins article is well worth disseminating and reading.

—Anonymous

Architects Misuse RFIs Too
Entertaining article; but the plain truth is that litigation hasn’t proliferated the RFI. As someone with almost 30 years’ experience as both an architect and a contractor with large projects, I have seen the inability of design teams to complete contract documents has increased beyond measure. I have heard this complaint from contractors and architects alike. 100 percent CDs are now looked at as 80 percent CDs with the rest of the design to be completed with RFIs. This seems almost universal and seems to be related to the inability of many firms to keep to internal budgets, such as the design team using up time allotted for construction documents thus leaving the production team short of adequate funds or time to complete the construction documents.

This puts the burden on the construction administration team to complete the documents through RFIs. I have seen even well-respected firms resort to this practice. Furthermore, instead of answering questions, CA teams become more concerned with risk management than answering a question properly, thus perpetuating more RFIs along with the time required to close an RFI. The hope is the contractor will become frustrated and make the decision, thus releasing the designer from their liability. This is particularly true when the answer involves money or time.

This practice has given rise to increased use of owner requested constructability reviews during the CD phase of a project, giving the opportunity for the contractor to comment on deficiencies and omissions in the documents so they may be addressed prior to release of documents for bidding or construction. I agree the use of RFIs has been abused, but the abuse is practiced just as much by architects as it can be by contractors.

—Michael Penney, AIA, LEED-AP
Turner Construction
Sacramento

Constructability Is at Issue as Well
The described scenarios in the article are all too common. I have seen them from both sides of the fence and agree with the writers wholeheartedly.

The comment in regard to the experience of the writer or the responder of the RFI is absolutely key in maintaining a stable environment. I have found that, generally speaking, the experience level in each camp varies substantially, with usually the construction side offering the more experienced personnel. With the questions being mostly related not to means and methods, but general coordination of the work; in short, construction aspects related to equipment or material assembly. The constructor is concerned about the assembly process, while the architect while in the design and construction document phases may only see finished products. Constructability is a large issue. The architect does not view the same issue in the same light.

Construction contracts that use AIA documents are usually best for architects, but they are not always used and frequently revised to even the playing field in favor of the constructor. Owners and constructors usually have very savvy, and sometimes shrewd, legal counsel. Architects, if possible, should have the same. In addition, the AIA should revise the documents to remove or at least reduce any language which leads to subjective decisions or clarifications.

This article also leads to another discussion, usually not discussed openly, which is the remaining third of the construction triangle, the owner. For many a reason, owners, both large corporations and individuals, sometimes see the architect as a necessary evil. Someone who is necessary in the process, but not really wanted. As such, they are not allowed to become an intrinsic part of the construction team. The constructor is given greater credit than the architect and thus receives less support from the owner once the construction process begins.

In all, a good article; keep them coming.

—Aldo Carminio
Carminio Architecture, L.L.C.
Westfield, N.J.

RFI? RTD!
Thank you for this article. Can't tell you how many times I've been tempted to answer an RFI "RTD!" (Read the Drawings) because the information requested was already there but the contractor simply hadn't bothered to look for it … frustrating when we take a lot of time and care to ensure that the information is correct and in the right place.

Interesting point regarding submittal schedules. Most contractors I work with are reluctant to share them; now I know why.

—Gail Napell, AIA, ADPSR, LEED-AP
Woodbine Studio
San Rafael, Calif.

Enforce Your Submittal Schedule Requirement
Great article. I make a point of reading these writers' articles. They're reality architects whose writing helps many practitioners. The RFI situation has gotten out of hand for many architects; the punch list is another requirement that needs an article from Simpson and Atkins.

The submittal schedule requirement is probably in your specifications—if you use MasterSpec and you haven't removed it. Division 01 General Requirements sections don't make the most exciting reading, but they are very useful to architects who want to maintain adequate control of their projects during construction. Get it out and read it.

The submittals schedule is an action submittal—it is subject to approval by the architect. It is coordinated with the contractor's construction schedule and shows early submittals, long lead time submittals, and groups of coordinated submittals such as interior color selections. We recommend retaining and enforcing this requirement for projects of size, complexity, and potential liability.

The submittal schedule is required prior to initial application for payment in MasterSpec's Payment Procedures section. Let the contractor know that you intend to enforce these provisions at the time of preconstruction, and carry through. It enforces a useful discipline on the contractor's project management and protects the architect and consultants from being overloaded with submittals resulting in claims for delays.

—Phil Kabza, AIA
SpecGuy. [http://www.SpecGuy.com]
Charlotte

Fully Coordinated Specifications Are Important as Well
Interesting article, albeit one sided at times when read from the owner’s perspective. As an owner, I see both architect and contractor use RFI's to manage liability. Preconstruction team building to include at a minimum the owner, architect, and contractor can not only establish project expectations, but also address confrontational management practices before they adversely affect a project. For example, I typically encourage the contractor to propose solutions to RFIs, as suggested in this article, and find that, when carried out, this practice speeds up the RFI process and typically results in better communication, improvement to the project, and lower-cost solutions.

Since the article references the project specifications and expectations that mostly designers will be reading submitted comments, I offer the following. Fully coordinated specifications are as important to a successful project as fully coordinated drawings. I frequently return "completed" specifications to the architect that have not been made project specific, fully coordinated with the drawings, or even updated to the current version of the local building codes. I realize specifications are lengthy and difficult to read through, but if the designers can't take the time to coordinate them, then they can't complain that the contractors don't research them.

—Ben Branch
Flagler Development Group
Miami

 
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“Shootout at the RFI Corral”

Jim Atkins is president of Atkins Consulting Solutions, a firm that provides litigation support services and representation for owners and lenders. He has served on the AIA Risk Management Committee and has chaired the Architect’s Handbook of Professional Practice, 14th edition Revision Task Group.

Grant A. Simpson, FAIA, has served as a project delivery leader for several international firms where his responsibilities included construction documentation, project management, and loss prevention activities. He has served on the AIA Practice Management Advisory Group, and he is currently serving on the AIA Risk Management Committee.

This article is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions, and illustrations apply to specific situations.