This is the first in a three-part series on this blog addressing interpretations and clarifications of construction documents, comprised of: (a) Part 1 – Introduction to Resolving Conflicts, Ambiguities, and Discrepancies in Construction Documents; (b) Part 2 - Procurement and Construction Stages, and (c) Part 3 - “Order of Precedence” Clauses. Few sets of construction documents are so perfect that they never need interpretation or clarification. Because construction documents are voluminous, complex, often involve multiple design disciplines, and are prepared by fallible individuals, they frequently contain conflicts, ambiguities, discrepancies, errors, omissions, or a combination thereof.

While some owners, contractors, or other project stakeholders may sometimes unreasonably expect or demand perfection in construction documents, it is practically inevitable that one or more questions requiring interpretation or clarification will arise during the project’s procurement and construction stages. As presented in the figure, below, a typical set of construction documents includes drawings, specifications, documents comprising “Division 00 – Procurement and Contracting Requirements”, addenda, and contract modifications. The prevalence of the need for interpretations and clarifications implies that a reasonable number of garden-variety conflicts, ambiguities, and discrepancies in construction documents should be expected. Furthermore, the necessity for interpretations or clarifications likely falls within the design professionals’ typical standard of care and should be anticipated by project participants. Fortunately, widely used standard construction contracts, as well as their associated standard form design professional services agreements, establish clear requirements for interpreting and clarifying construction documents. 

“Information” or “Interpretation”? 

This article addresses interpreting and clarifying the construction documents. Such requests are typically initiated via a written instrument commonly known as a “request for information,” “request for interpretation,” or “request for clarification.”  Perhaps the most common of these terms is “request for information”. Regardless of whether it is a “request for information” or “request for interpretation”, such requests are often known as, “RFIs”. 

Section 4.2.14 of AIA A201—2017, Standard General Conditions of the Contract for Construction, employs the term, “request for information”, although other, related provisions under Section 4.2 refer to the Architect rendering “interpretations”. The term, “request for information” is also employed in AIA A503—2017/2019, Guide for Supplementary Conditions, and AIA G716—2004, Request for Information (RFI). Interestingly, the term, “request for information” is not used in AIA B101—2017, Standard Form of Agreement Between Owner and Architect. 

Both Paragraph 3.04.A of EJCDC C-700—2018, Standard General Conditions of the Construction Contract, as well as Exhibit A of EJCDC E-500—2020, Agreement Between Owner and Engineer for Professional Services, use the phrase, “requests for information or interpretation”. EJCDC does not publish a suggested RFI form. 

The 2021 edition of the Construction Specifications Institute’s (CSI) construction contract administration forms includes, Form 13.2.A, “Request for Information”. CSI MasterFormat^®—2020 assigns, “00 63 13 Requests for Information Form[,] Alternate Terms/Abbreviations: RFI: request for interpretation, request for information”, and “01 26 13 Requests for Information”. 

Despite the evidence, presented above, regarding documents published by CSI, EJCDC, and AIA, this writer believes the most appropriate term for an RFI is, “request for interpretation”. Whereas a “request for interpretation” clearly communicates that an interpretation of the construction documents is being requested, the term, “request for information” implies that the requestor is merely seeking information, not necessarily an interpretation. For example, a “request for information” might legitimately ask for the design professional’s telephone number or the address where a construction meeting will be held, which might also, more properly, be requested through routine communication methods. In contrast, a request for interpretation is clearly seeking an interpretation of some portion of the construction documents, whether due to an apparent conflict, ambiguity, or discrepancy. 

Occasionally, RFIs may be misused when other forms of communication are more appropriate. In practice, while some design professionals, construction managers as advisor (CMa), and owners may, perhaps, view a contractor’s overuse and misuse of RFIs as an irritation, such misuse should be professionally and effectively nipped in the bud. While overuse and misuse of RFIs likely often arises from ignorance of other, more-appropriate forms of project communication, it may also signal a strategic intent to create a project record purportedly demonstrating that the construction documents were exceptionally defective, thereby laying the groundwork for one or more claims under the Spearin Doctrine. For example, when a contractor asserts that the poor quality of the project’s construction documents required issuance of an inordinate number of RFIs, others might presume there is a rational basis for concluding that the construction documents were, in fact, defective. Referring to RFIs as, “requests for information” may encourage a contractor, seeking to build a case for submitting claims under the Spearin Doctrine, to submit a large number of RFIs. In contrast, referring to RFIs as “requests for interpretation” may provide a basis for rejecting RFIs that are frivolous or that do not directly address apparent conflicts, ambiguities, or discrepancies in the construction documents. Specifications language in “Division 01 – General Requirements” that might provide a contractual basis for limiting frivolous RFIs and curtailing the misuse of RFIs might include the following: 

1. Transmit written requests for interpretation to [Architect] [Engineer].  Contractor and Owner may prepare and transmit requests for interpretation.
2. Prepare and transmit request for interpretation to obtain interpretations or clarifications of the Contract Documents. Report conflicts, ambiguities, and discrepancies in the Contract Documents by requesting an interpretation.
3. Do not transmit request for interpretation when other form of communication is appropriate, such as Submittals, requests for approvals of substitutes, contractually required notices, ordinary correspondence, or other form of communication.  Improperly prepared or inappropriate requests for interpretation will be returned without response or action by [Architect] [Engineer].
4. Do not submit request for interpretation or clarification when:
   1. Answer may be obtained by observations at the Site.
   2. Required information is clearly indicated in the Contract Documents.
   3. Required information is included in industry standards referenced in the Contract Documents or Supplier’s instructions that are consistent with the Contract Documents.
   4. Are reasonably inferable from any of the foregoing.
5. [Architect] [Engineer] will return requests for interpretation without response for any of the following reasons:
   1. Request is regarding one of the items addressed in Paragraphs 3 and 4 of this provision.
   2. Request is unclear or incomplete.
   3. Request was answered in [Architect’s] [Engineer’s] response to a prior request for interpretation or a previously issued clarification notice.
   4. Request is related to construction means, methods, techniques, procedures, or sequences not required by the Contract Documents.
   5. Request is related to safety and protection matters that are solely Contractor’s responsibility.
   6. Request resulted, in whole or in part, from lack of adequate coordination by Contractor, including coordination of Subcontractors and Suppliers.
   7. Requests that are otherwise frivolous or unnecessary.
6. Should requests be categorized by [Architect] [Engineer] as within the limits of Paragraphs 3, 4, or 5 of this provision, [Architect] [Engineer] may recommend, and Owner may withhold, from payments due Contractor under the Contract, set-offs sufficient to cover Owner’s costs of Contractor’s submittal of invalid, frivolous, unnecessary, or inappropriate requests for interpretation or clarification.
7. Contractor shall have sole financial responsibility for Contractor’s costs for requests for interpretation or clarification, including requests that are submitted late, out of sequence, or are unnecessary.

Who Interprets the Contract Documents and Why? 

In the design-bid-build project delivery method, standard contract documents in widespread use in the United States, such as those published by the Engineers Joint Contract Documents Committee (EJCDC) and American Institute of Architects. (AIA), establish the design professional as the entity with responsibility for initially interpreting the requirements of the construction contract (in accordance with EJCDC C-700—2018, Paragraph 3.04.A, and AIA A201—2017, Section 4.2.11) for the following reasons: 

• The design professional prepared the construction drawings and specifications and, therefore, is in the best position to judge their meaning and intent. 
• If another entity undertakes responsibility for rendering interpretations and clarifications of the construction documents, that entity may, 1) lack a full understanding of the facts and circumstances underlying the design professional’s decisions regarding an element of the design and, 2) by rendering an interpretation or clarification, assume all or some portion of the design professional’s responsibility and liability related thereto. 
• Of the three principal entities involved in implementing a project via the design-bid-build delivery method, the design professional is the entity most likely to render impartial interpretations of the construction documents, because both the owner and contractor are parties to the construction contract. Of course, the design professional is not an entirely disinterested bystander, because the owner or contractor may seek to hold the design professional accountable for increased costs and delays associated with defects in the construction documents. 

Both AIA A201—2017 Section 4.2.12, and EJCDC C-700—2018 Paragraph 10.06.A, require the design professional to render interpretations and clarifications of the construction documents without partiality to either the owner or contractor. While it may, on occasion, be challenging for the design professional to render interpretations, clarifications, or decisions on the acceptability of the work in a manner contrary to the owner’s desires, because the owner pays the design professional’s invoices, it is necessary for design professionals to act without partiality because: 

• The architect and engineer are expressly obligated to do so by the provisions of AIA A201—2017 and AIA B101—2017, as well as EJCDC C-700—2018 and EJCDC E-500—2020.
• Licensed design professionals are obligated to act ethically and truthfully in the conduct of their profession (see Ethics: Codes of Conduct for Design Professionals Part 2 – Common Ethics Requirements, as well as Ethics: Codes of Conduct for Design Professionals Part 1 – Introduction and Ethical Dilemmas, and Ethics: Codes of Conduct for Design Professionals Part 3 – Ethics and Business Practices, previously published on this writer’s blog).
• In the event the design professional were to render interpretations, clarifications, and decisions on the acceptability of the work in a manner partial to the owner, the contractor may pursue recourse against the owner via contractual procedures regarding changes, claims, and disputes, which, in turn, could lead the owner to pursuing recourse against the design professional in a similar manner. If the matter were escalated beyond the day-to-day members of the project teams, there will be increased likelihood that decisions will be rendered impartially, with associated potential for embarrassment and added cost incurred by the design professional and, possibly, the owner. 

Personnel interpreting and clarifying the construction documents must act under the supervision and control of the design professional in responsible charge (see Responsible Charge: An Essential Concept for Design Professionals, previously published on this writer’s blog). Interpretations and clarifications addressing the drawings, specifications, or other technical matters included in the statutory definition of the practice of the subject design profession, should not be furnished by personnel acting independently of the design professional who sealed and signed the associated drawings, specifications, and other, relevant instruments of service. Whether it is necessary for the design professional in responsible charge to issue an interpretation or clarification under their signature may be debatable, but exercising appropriate supervision and control is necessary. 

In some cases, especially when the design professional did not prepare the project’s documents in “Division 00 – Procurement and Contracting Requirements”, the design professional may be unable to render an appropriate interpretation or decision. In recognition of this, EJCDC C-700—2018, Paragraph 3.04.C, states in part: 

“If a submitted matter in question concerns terms and conditions of the Contract Documents that do not involve (1) the performance or acceptability of the Work under the Contract Documents, (2) the design (as set forth in the Drawings, Specifications, or otherwise), or (3) other engineering or technical matters, then Engineer will promptly notify Owner and Contractor in writing that Engineer is unable to provide a decision or interpretation.”

AIA documents do not appear to include any language similar to C-700 Paragraph 3.04.C. 

When the project includes a construction manager as advisor (CMa), the construction documents will typically require that written communications flow between the CMa and the contractor. When RFIs concern technical matters related to the design professional’s instruments of service, including the drawings and specifications, the CMa will typically forward such RFIs to the design professional for a response. The design professional will issue their response to the CMa, who will then forward it to the entity issuing the RFI (i.e., the contractor or owner). While this process may appear somewhat cumbersome, it preserves and respects the appropriate lines of communication during construction. (For additional information on communications in projects involving a CMa, see Specifications for Projects with a Construction Manager as Advisor, previously published on this writer’s blog. 

Some non-standard construction contracts empower the owner to render interpretations and clarifications. When contracts include such a provision, the owner likely does not intend to interpret the design intent expressed in the drawings and specifications, but may desire to control communications between the design professional and contractor. When the contract includes such language, and the owner has retained the design professional to perform construction phase services, the owner will typically furnish the contractor’s RFIs to the design professional, followed by reviewing the design professional’s response prior to transmittal to the contractor. Owners incorporating such language into their construction contracts, and who either render their own interpretations or clarifications without the design professional, or who edit the design professional’s interpretations or clarifications, may increase their risk by unintentionally sharing in the architect’s or engineer’s professional liability and, perhaps, opening themselves to contractor claims of partisan interpretations of the construction contract. Accordingly, owners who control the language and issuance of interpretations, clarifications, and decisions on the acceptability of the work, should do so with considerable care and judgment.

Artificial intelligence (AI) has become an extremely useful tool for teams implementing capital projects and may be useful in evaluating construction documents relative to rendering interpretations and clarifications. However, as with any new technology, AI should be used properly in accordance with the applicable standard of care, and in accordance with the design professional’s own policies or guidelines on AI use. Regardless of the tools employed by the design professional or others for evaluating and interpreting the construction documents, the contractual and ethical requirements for impartiality, the need for professional competence, and the applicable standard of care should all play a role in any decision to use AI in connection with the interpretation or clarification of the construction documents.

AI may be employed in evaluating construction documents by uploading the specifications, drawings, and other elements of the construction documents into a free, commercially available AI model such as “CoPilot”, on Microsoft Bing, “Gemini” by Google, “ChatGPT” by OpenAI, and others, together with typing into the AI an appropriate question, such as that posed in the submitted RFI. The principal advantage of using AI is greater efficiency and reduced time required for team members evaluating the construction documents and drafting the interpretation or clarification. Drawbacks of using AI for interpreting and clarifying construction documents, include: 

Locations of Requirements in the Construction Documents

RFIs may be submitted during the bidding or procurement process, as addressed in the project’s instructions to bidders, or during construction, as addressed in the contract documents. 

Standardized instructions to bidders in widespread use in the United States typically address procurement stage requests for interpretation or clarification in the same article or provision governing issuance of addenda. AIA A701—2018, Instructions to Bidders, addresses this at Section 3.2 (“Modification or Interpretation of Bidding Documents”), while EJCDC C-200—2018, Instructions to Bidders for Construction Contract, addresses the matter at Paragraphs 7.02 through 7.04. Many sets of bidding or procurement documents do not establish formal procedures for procurement stage RFIs, beyond indicating to whom procurement stage RFIs must be submitted and, perhaps, limiting the number of days prior to the date bids or proposals are due by which RFIs must be submitted. 

Many construction documents include more-extensive requirements governing RFIs submitted after the construction contract is signed and effective. Basic requirements concerning interpreting and clarifying the construction contract documents are typically set forth in the general conditions, such as EJCDC C-700—2018 Paragraph 3.03 (“Reporting and Resolving Discrepancies”), Paragraph 3.04 (“Requirements of the Contract Documents”), and Paragraph 10.06 (“Decisions on Requirements of Contract Documents and Acceptability of Work”), and AIA A201—2017 Sections 4.2.11 through 4.2.14. Such provisions of the general conditions are often more detailed than their counterpart provisions in the associated instructions to bidders. 

In addition, many sets of construction documents expand on the general conditions’ requirements concerning RFIs in the specifications of “Division 01 - General Requirements.” CSI MasterFormat—2020 assigns, “01 26 13 Requests for Information”, and “01 26 19 Clarification Notices”. Alternatively, some design professionals and owners may elect to include such requirements in a higher-level section assigned by MasterFormat, 01 26 00 Contract Modification Procedures, even though RFIs, interpretations, and clarification notices are not contract documents and do not modify the construction contract. MasterFormat also assigns, “00 63 13 Requests for Information Form”, and “00 63 19 Clarification Form.”  However, despite MasterFormat assigning these numbers and titles, this author recommends binding proposed RFI and clarification notice forms into the construction documents as attachments to the associated Division 01 specifications, rather than as standalone documents under “00 63 ##”. 

The content of Division 01 specifications addressing RFIs and clarification notices will depend on the general conditions incorporated in the construction documents. Topics relevant to RFIs and clarification notices that may be addressed in Division 01 include: 

Conclusions

Interpretations and clarifications are an inevitable part of procurement and construction of capital projects. Although such requests are often termed, “request for information”, only requests for interpretation should be allowed under the construction contract, to reduce the potential for the contractor building a case for a claim under the Spearin Doctrine. In the design-bid-build project delivery method, the design professional, bound by the applicable standard of care, is typically the entity rendering interpretations and clarifications of the drawings, specifications, and related modifications. However, when a CMa is involved, transmittal of interpretations and clarifications will typically be through the CMa, who will often forward RFIs to the design professional when they relate to the design professional’s instruments of service. Basic requirements for RFIs arising during the bidding or procurement stage should appear in the instructions to bidders, whereas more detailed requirements for construction stage interpretations and clarifications are set forth in the general conditions and are often augmented by requirements in the Division 01 specifications. 

Forthcoming installments in this series will address interpretations and clarifications during a project’s procurement and construction stages, and “order of precedence” clauses used in construction documents. 

Acknowledgements: The author gratefully acknowledges the assistance of James K. Lowe, Jr., Esq., who kindly reviewed and commented on drafts of this article. Mr. Lowe is an attorney and licensed professional engineer (VA, emeritus), who has more than 45 years’ experience in the A/E industry. The author is solely responsible for the content of this article.

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.