If you’ve ever purchased something that required assembly, you most likely have felt the frustration when starting the assembly process and finding that there were no instructions or the instructions were so vague you had to make your own interpretation of what the manufacturer meant to say. This type of situation, and the frustration that comes with it, is very similar to entering into a contract that contains a limited or vague scope of work.
When I first started in the construction industry, a lawyer told me the most important part of contracting is to read the contract. Essentially, a written contract is a legally binding document that assigns duties, responsibilities and expectations to each of its parties. A frequent problem seen in construction contracts is that they often do not clearly define the scope of work that is to be performed. However, sometimes the scope of work is incomplete or does not contain enough detail to prepare a complete estimate. If the contract does not clearly articulate each party’s duties, responsibilities and expectations, there is considerable room left for disagreements regarding a host of issues. In the world of LEED and LEED consulting, the relevance of an accurate scope of work is no different. It is critically important to clarify expectations, duties and responsibilities in the contract documents. If these roles, duties and expectations are not clearly delineated in the contract, it may be left to the interpretation of the courts.
Project Delivery Team and Scope of Work
Whether an owner, designer, consultant, contractor or subcontractor, one of the most important portions of a contract is the section that deals with the scope of work or the work that is to be performed under the contract. I have dealt with instances where the scope of work was simply verbally discussed by the owner’s representative but not clearly defined in writing. One of the biggest problems with this lack of information is that when disputes do arise, the resolution is often based on people’s recollection of what is to be performed or their interpretation of what the contract contains. Failure to resolve these types of disputes can be costly, and in extreme instances, resolution is carried out in the courts.
Contractors have some advantage over other members of the project delivery team in that they are provided plans and specifications to prepare an estimate. The scope of work should reference those specific documents. If there are certain conditions to performing the work, those should be mentioned. The less ambiguity that is left, the less confusion there will be when the work is being performed and the less chance for disagreement.
Unlike the contractors, consultants may not have the advantage of being provided with a complete set of plans and specifications because these members of the team typically enter the project early. In most cases, these team members start working on the project before there is a set of plans or specification. Without a clear scope of work within the contract documents to establish an estimate or proposal for the project, the consultant needs to find clarity in the contract being used. Since there is no set of contract documents, the owner’s agent and the consultant must agree to what will be provided over the course of the project.
LEED Rating System
In the event LEED certification will be sought, a LEED consultant will need to be added to the project team. This consultation service may be provided by the design team or this role may be filled by an outside consultant. Either way, an owner should be knowledgeable about what duties the LEED consultant will perform so there are no disputes.
The U.S. Green Building Council allows for either a single- or a two-phase review process. In a two-phase review, the design-related credits are documented at the end of the design phase or early in the construction phase. At the completion of construction, a second submission is prepared for the construction-related credits. Having a LEED consultant on the team to oversee the LEED submission process is vital to the success of any LEED project, as the LEED rating system requires a large amount of coordination.
The coordination activities come into play when the team is working to document the prerequisites and the credits found within the rating system. Everyone on the team has a role within the LEED certification process. Many owners do not realize how integrated the documentation process must be to the other elements of the project. For example, many owners do not know that they will be required to assist in the documentation through their agreement to proceed with the certification process. In other cases, credits may require input from multiple disciplines before they are properly documented. Designers, and contractors play a role in the documentation process as well.
Whether you are a designer, consultant or contractor, it is critical to know what is and is not in the contract. The only sure way to know what is in the contract is to have a clear and well-defined scope of work. Clearly and accurately defining exactly what work is being performed and also what work is not being performed is something that should be defined early in the contracting process. Clearly articulating the scope of work in the contract will assist in the accuracy and completeness of proposals or bids for the work. Spending the time upfront during the formulation of the contract agreement will ensure that the scope of work is complete and will also go a long way in preventing disagreements, especially legal disputes.
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Thomas Taylor, a 30-year veteran of the construction industry and noted expert on sustainability, is a principal and co-founder of St. Louis-based Vertegy. His book, “Guide to LEED 2009: Estimating and Preconstruction Strategies,” provides step-by-step information about the LEED 2009 for New Construction process. To learn more about Vertegy or Taylor, visit
www.vertegyconsultants.com.