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Random Capitalization: A Risk of Misinterpretation

By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT posted 11-14-2019 02:14 PM

  

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.

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Question to staff: Is there a way to synchronize comments between the blog and this forum? If not, comments should be limited to one place or the other. Readers shouldn't have to go back and forth between the two locations to see all comments.

I'm pleased Kevin and I share many of the same concerns, and talk about things that many people don't see as important issues. I addressed capitalization in my blog post "Capital idea!" You can follow the link to read the whole article, but I'll repeat here part of that blog that speaks to what I see as one of the biggest problems, i.e., capitalization of words in a paragraph subject. 

Unfortunately, this form of over-capitalization has been formalized in SectionFormat-PageFormat (SF-PF), which states, "Each word in a paragraph title is typed in title case." Example specifications in SF-PF show use of title case for Cold Weather Requirements, Hydrated Lime, and Mortar for Load Bearing Walls and Partitions. Those examples are fairly innocuous, as it's unlikely they will be used in multiple places. But, because an important and common use of capitalization is to identify defined terms, what does it mean when Laboratory Test Reports, Metal Fasteners, Abrasion and Impact Resistance, Outside Corner Units, or Color and Pattern are capitalized? Can you tell if they are defined terms? If they are, they should be presented as such, and capitalized in the same way every time they appear, not just as the subject of a paragraph. And if, for example, Metal Fasteners are used in several sections, are they the same fasteners in each of those sections? If the term is capitalized, it could be construed as a universal defined term.

Ideally, subjects of paragraphs that describe terms should not have even an initial capital letter.  For example, this is how I defined terms in my Division 01 section for definitions:

  1. furnish: Supply and deliver to the work site, ready for unloading and installation.
  2. install: Unload, unpack, assemble, erect, place, anchor, apply, work to dimension, finish, cure, connect to required services, store and protect, and similar operations required to put a product in place and make it functional.
  3. provide: Furnish and install completely, ready for intended use.

Regarding capitalization of entities defined in the construction contract, I stray a bit from common streamlining by never starting a sentence with one of those entities. Instead of writing "Architect will do whatever" I would write "The Architect will do whatever." This might be a rare occurrence, though one I have encountered, but if there is reference to an architect or contractor who is not involved in the contract, the preceding article eliminates any confusion about which architect or contractor is referred to.

11-20-2019 03:08 PM

Thank you.  My only difference in practice is to capitalize assigned room names, so that I may refer to rooms or classrooms or bedrooms generally, but Classroom 305 or Master Bedroom refer to a specific space.  Rooms are assigned names or numbers on the drawings, use of that name must be consistent across specifications, schedules, and correspondence, and I believe the use of capitalization helps reinforce that specificity.​

Scott—I believe the answer will depend on whether the subconsultant has been expressly identified or referred to in the construction documents.  If yes, then their role should probably be established (perhaps something like, “Design Consultant” or “Design Subconsultant” or something like that) and, perhaps a defined term should be included in the construction documents.  If that’s done, then the role should be indicated with initial capitals.  However, in many cases, the A/E’s subconsultants will not be identified by any specific role in the construction documents and all communications between the contractor and any subconsultant will be routed through the A/E.

 

That said, it’s probably worthwhile indicating any such subconsultants—regardless of whether they are identified by a specific role—that will have a role during the construction stage, to be included in the contractor’s indemnification obligations, included as an additional insured on contractor-furnished liability insurance (to the same extent the owner and A/E are additional insureds), and included in a provision requiring a builder’s risk insurer to waive its rights of subrogation.  While these matters are far outside the scope of a blog post on “Random Capitalization”, they are appropriate for any subconsultant that will have a construction stage role.

 

11-20-2019 11:29 AM

Well done, Kevin!  One question which may be of interest.  In the case of a prime architect or a prime engineer in charge of the project, would the consulting professionals, when mentioned in the Contract Documents, be in lower case in that they are not parties to the Contract?
David--Thanks very much.  I have tended to use initial capitals for terms such as "Engineer", "Contractor", "Owner" and other defined terms when writing correspondence or meeting minutes for a project, because I like to think it's consistent with the contract language and therefore, hopefully, clear to the reader.  I try to avoid using initial caps in situations where there are no defined terms, such as in forum posts or articles, but I'm not always consistent in that respect.

Of course, there's a difference between the "Engineer" and "a structural engineer retained by the Contractor" for delegated design or designing some temporary construction.

I think initial caps on terms like, "Architect" and "Engineer" in routine writing, like forum posts, tends to communicate that the writer means, "the architect" or "the engineer" serving in "that role" for a project.

I suppose, in the end, initial caps on words is supposed to mean something, and should not be used randomly or without intent.  When that's done, I suppose it's not always necessary to have a set of applicable defined terms nearby, so long as the text and its use of initial caps adequately communicates the writer's intent.  However, often, "random capitalization" is, so it seems, truly random. :-)

11-20-2019 09:34 AM

Kevin,
Very well written and presented sir. This is some of your best of great sharing of knowledge.
It made me think maybe I make an error when capitalizing Architect and Engineer out of due respect for our professionals when writing outside of specific projects. Again well done.