Editor's Note: CSI is pleased to publish this sixth blog from Kevin O’Beirne, PE, FCSI, CCS, CCCA, CDT. If you have an idea or opinion you would like to share with your colleagues in the construction industry, please contact CSI Content Strategist Peter Kray at pkray@csinet.org. He would love to help publish your thoughts.
Design professionals and specifiers often practice what I call “random capitalization,” in which certain words in construction documents, correspondence, and other documents are written with seemingly-random capitalization of initial letters.
An example of random capitalization is, “In accordance with the contract, the contractor shall Provide Spare Parts for Reverse-Osmosis Membrane Equipment as follows:” In this example, all the words with initial capitals should use lower-case letters, and terms that are probably defined elsewhere in the construction contract, such as “Contract” and “Contractor”, use lower-case letters when they should probably have initial capitals.
Random capitalization has strong potential to result in possibly unintended interpretations of the contract’s meaning. In English class, high school and college students are often advised to write for their audience. Specifiers and design professionals should heed this because among the most important potential audiences of their writing are attorneys, sureties, judges, juries, and arbitrators, and you probably do not want them applying an interpretation different from what you intended.
Attorneys and sureties tend to interpret contract language very, very literally. Upon their arguments and the resulting decisions of judges, juries, and arbitrators return decisions that may be valued in millions of dollars, together with the design professional’s and specifier’s reputation and professional liability insurance premiums. It is unwise to hang all that on random capitalization.
In contract documents, initial capitals typically indicate either a proper noun or a formally defined term. Consistent use of defined terms is vital for achieving the intended interpretation of the contract documents. Widely used standard general conditions present defined terms as follows;
- American Institute of Architects (AIA): AIA A201—2017, Standard General Conditions of the Contract for Construction: Consistently uses its defined terms, indicated with initial capitals. Establishes its defined terms throughout the document, sprinkled among various provisions.
- Engineers Joint Contract Documents Committee (EJCC): EJCDC C-700—2018, Standard General Conditions of the Construction Contract: Consistently uses defined terms. Establishes all defined terms in Paragraph 1.01 using initial capitals, and further establishes in Paragraph 1.02 selected “terminology” that is assigned certain meaning, but without using initial capital letters.
- Design-Build Institute of America (DBIA): DBIA 535—2010, Standard Form of General Conditions of Contract between Owner and Design-Builder: Includes a list of basic, defined terms in Section 1.2 with initial capitals. DBIA documents also use initial capitals for other, selected terms that are not defined in Section 1.2 of DBIA 535.
Outside of Division 00, CSI MasterFormat—2018 assigns “01 42 16 – Definitions” (which may also be included in a higher-level Section 01 42 00 – References). Where defined terms are indicated in 01 42 ## should be common among multiple parts of the construction documents.
In its “References” article in Part “1 – General”, CSI SectionFormat—2007 allocates an optional provision for “Definitions”, for indicating defined terms unique to the specific section that are not defined elsewhere in the contract documents
Defined terms should be consistently indicated using initial capitals. For consistent interpretations, all the construction documents, related correspondence, meeting minutes, and other project documents should consistently use the contract’s defined terms, indicated with initial capitals.
People preparing construction documents sometimes substitute alternative terms in lieu of the defined terms, which is also poor specifying practice. A few examples:
- Using “plans” instead of the defined term “Drawings”.
- The terms “Subcontractor” and “Supplier” are defined in EJCDC C-700 and such terms should be used instead of alternatives such as “applicator,” “installer,” and “vendor,” “materialman,” or “supplier” (the latter without an initial capital).
Sometimes, defined terms are better than commonly used alternatives. For example, while many construction documents employ the words, “Drawings and Specifications,” often the defined term “Contract Documents,” is preferable because it is more-encompassing and thus, typically, more appropriate.
Thus, it is important that specifiers be familiar with the defined terms set forth in the General Conditions and, perhaps, in other construction documents. Specifications should not be written independent of the provisions of the Agreement, General Conditions, Supplementary Conditions, and Division 01 Specifications.
Except for document titles such as “Instructions to Bidders,” “Agreement,” “General Conditions,” and others—all of which should be expressed using initial capitals—proper nouns are relatively rare in construction documents. Names of buildings, facilities, streets, and the like are proper nouns and should have initial capitals. Identification of facility assets, such as “air handling unit no. 2,” “classroom 305,” “east stairwell,” “control room,” and “decant tank no. 4” should not have initial capitals. Generic identification of materials or equipment, such as “concrete masonry units,” “vinyl windows,” “medium-voltage switchgear,” and the like, are not proper nouns and typically should not have initial capitals.
Words that are neither formally defined in the contract documents nor proper nouns should, of course, not have initial capitals.
Another reasonably common practice is use of all-capitals for certain terms, such as “CONTRACTOR,” “OWNER,” and “ARCHITECT.” Whereas, in the past, certain widely-used standard general conditions used all-capitals for certain terms, today all commonly-used standard general conditions use only initial capitals. Thus, using all-capitals for certain defined terms should typically be avoided unless the associated construction documents explicitly address their use, such as “The terms ‘Contractor’ and ‘CONTRACTOR’ have the same meaning.”
The danger with inconsistently using capitalization and defined terms is that, while a defined term is assigned a specific meaning—for example, “Contractor” typically means, “The entity so indicated in the Agreement”—such terms without initial capitals may have an entirely different meaning. For instance, “contractor” (no initial capital) would likely be interpreted as any third-party entity performing other work at the site, rather than as “the Contractor”. Judges, juries, arbitrators, and sureties tend to interpret such matters very literally under the premise that the document’s writer meant each provision exactly as written. Outcomes of substantial claims and disputes have turned on such apparently-trivial matters of writing.
Random capitalization is not a big problem for most specifiers and design professionals because most projects do not wind up in a courtroom or with a surety. However, because any project—even a well-designed, clearly written, and well-administered one—can appear in a courtroom or in a surety ‘s office despite the design professional’s best intentions, it is always wise to write for one’s potential audience by, among other things, properly and consistently using defined terms, and avoiding random capitalization.
Copyright 2019 by Kevin O’Beirne
The content of this blog post is by the author alone and should not be attributed to any other individual or entity.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the National Manager of Engineering Specifications for HDR, a global engineering and architecture design firm. He is a member of CSI’s MasterFormat Maintenance Task Team and is the certification chair of CSI’s Buffalo-Western New York Chapter. He is an ACEC delegate on the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY rea. Contact: kevin.obeirne@hdrinc.com.