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This is the fourth in a six-part series on this blog addressing design professionals’ scopes of services, comprised of: (a) Part 1 – Key Concepts and Source Documents; (b) Part 2 – Elements of Design Professionals’ Scopes of Services; (c) Part 3 – Limitations: Introduction and Essentials; (d) Part 4 – Limitations: Construction Documents; (e) Part 5 – Limitations: Permitting and Disagreements; and (f) Part 6 – Elevated Standard of Care, construction Cost Estimates, and Phased Authorizations.

This installment in the series addresses limitations on the organizational formats, source documents, and extent of construction documents prepared by the design professional.

When the design professional’s services include the preparation of construction documents, the scope of services should clearly indicate the planned and budgeted extent of the construction documents, their source documents, and their organizational formats. Failure to address such matters can result in disagreements with the client, substantial delays, and budget overruns.

Limitations on Construction Documents’ Organization 

Many clients likely have little interest in the organizational formats used for the drawings and specifications, but some do. Clients may prefer that all computer-produced drawings and building information models use certain layering methods and organization. This writer has personally observed numerous project owners still clinging to the outdated, 16-division-plus-the-front-end organization of MasterFormat 1995 or 1988 and insisting on its use, even after the design professional has started to prepare specifications in accordance with the current (50-division) MasterFormat. 

To reduce the potential of being subject to the client’s late-stage directives or changes of mind, without an appropriate amendment, consider using scope language such as:

• “Preliminary project descriptions prepared during the Schematic Design Phase will be organized in general conformance with the Construction Specifications Institute’s (CSI) UniFormat 2010 with a level of detail in general conformance with CSI PPDFormat.”

• “The Drawings will be prepared in accordance with the edition of the National CAD Standard in effect on the date the [Design Development Phase] commenced, with layering in accordance with [Architect’s] [Owner’s] standards.”

• “The project manual will be organized in accordance with the edition of the Construction Specifications Institute’s (CSI) MasterFormat in effect on the date [Engineer] commenced performing [preliminary design phase} services for the Project.”

• “Specifications of Divisions 01-49 will be organized in general conformance with CSI SectionFormat 2007.” 
  
  

Sources for Construction Documents 

The scope of services should indicate the source documents for the construction documents. Failure to do so may result in the design professional assuming, for example, use of either AIA or EJCDC documents for “Division 00—Procurement and Contracting Requirements” and, instead, being directed by their client, perhaps at the eleventh hour before bidding or procurement, to use a completely different set of Division 00 documents, perhaps unique to the client.

Using unique Division 00 documents has strong potential to substantially increase the design professional’s risk, even though the design professional is typically not a party to the construction contract. Such risk may arise from the design professional being omitted from the contractor’s indemnification obligations, denied status as an additional insured on contractor-furnished liability insurance, omitted from a clause requiring the builder’s risk insurance carrier to waive its rights to subrogate against certain entities, requiring the design professional to order the construction stopped for reasons outside the design professional’s control such as safety violations, perceived inefficiencies, and defective work, and more. Thus, the scope of services should include language such as:

• “The construction contract’s ‘Division 00—Procurement and Contracting Requirements’ will be developed from [the Owner’s documents, which Owner has previously furnished to Architect] [the 2017 edition of AIA standard contract documents for design-bid-build construction, including AIA A201—2017 – Standard General Conditions] [the 2018 edition of EJCDC’s Construction (C-Series) Documents] [Engineer’s own Division 00 documents]. At approximately [60] percent design, [Architect] [Engineer] will prepare the Project’s draft Division 00 documents and submit them to [Owner] for review, comment, and approval by [Owner] and [Owner’s] legal counsel.”

• “Where [Owner’s] Division 00 documents will be used, [Architect] [Engineer] will review [Owner’s] Division 00 documents and present to [Owner] comments on risk management and construction contract coordination matters. [Owner] shall consider and promptly approve reasonable changes to [Owner’s] documents recommended by [Architect] [Engineer]. Such services do not constitute legal, insurance, or bonding advice. [Architect] [Engineer] has budgeted [40] hours for this activity.”

• “Construction Specifications (Divisions 01-49) will be developed from [Engineer’s] [Architect’s] [Owner’s] standard specifications, as applicable.”

• “Details on the Drawings will be developed, where applicable, from [Owner’s] standard detail drawings. However, [Engineer] shall have right of final revisions to such details on the Drawings. Should [Owner] reject [Engineer’s] revisions to [Owner]-furnished details, [Engineer] will not be obligated to seal and sign such Drawings, and [Engineer] shall have no professional liability therefor.” 
  
  

Extent of Construction Documents 

While scopes of services should clearly indicate the extent of the facilities involved, it is also appropriate to expressly indicate the planned extent of the proposed construction documents. This writer has reviewed a surprisingly large number of scopes of services with open-ended language, such as, “[Engineer] shall prepare all the Drawings and Specifications.” Such language has often left design professional’s without a basis for negotiating an equitable amendment when the client changes the project’s scope. Scope language such as the following is suggested:

• “[Engineer’s] scope and budget includes preparing the anticipated Drawings indicated in [Section 8.4] of the Project’s [preliminary design report] prepared by [Engineer] and dated [date].”

• “[Engineer’s] scope and budget include preparing [16] Drawings, including one title sheet, one key plan Drawing with general notes, [10] plan and profile Drawings, and [three] Drawings of civil/site details.”

• “[Architect] shall prepare the following construction Specifications sections: [indicate].”

Similar reasoning may apply to other, selected deliverables where the potential exists for “scope creep.”

Conclusions

Unless expressly addressed in the scope of services, the design professional may possess considerable risk from client-directed changes in the organizational formats, source documents, and extent of the project’s construction documents. In particular, the design professional may have considerable risk when the project owner directs using the owner’s unique construction documents for “Division 00—Procurement and Contracting Requirements.” When such matters are clearly and reasonably indicated in the scope of services, should the client subsequently require changes, the parties will have a basis for negotiating an equitable amendment that is fair to both parties.

Forthcoming installments in this series include: Part 5 – Limitations: Permitting and Disagreements; and Part 6 – Elevated Standard of Care, construction Cost Estimates, and Phased Authorizations. 

Looking for more? Read the latest articles here. 

Acknowledgements: The author gratefully acknowledges the assistance of Bruce Firkins, PE, PLS, of Bolton & Menk, Inc., in Minneapolis, MN. Mr. Firkins is the chair of EJCDC’s Engineering (E-Series) Subcommittee and kindly reviewed and commented on drafts of this article.

Copyright 2022-2023 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.

The author of this blog post is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with a qualified, experienced attorney.

Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 35 years of experience designing and constructing water and wastewater infrastructure for public and private clients.  He is the engineering specifications manager for a global engineering and architecture design firm.  He has been a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter.  He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo, NY area.  Kevin O’Beirne’s LinkedIn page.