As a general contractor, construction manager, or other type of prime contractor, it is important to preserve the distinction as being the construction provider, and to avoid inadvertently or otherwise assuming any responsibility of either the design professionals and/or the owner vis-à-vis the contract. As the construction provider, it is our responsibility to coordinate the “work.” It is not our responsibility to coordinate the design. It is not our responsibility to “interpret” the Contract Documents, to “approve” submittals, or through any other mechanism unnecessarily assume any liability that correctly belongs to the design professionals and the owner.
Lump sum general contracts, design-build contracts, and the various forms of construction management contracts all have major differences in the fundamental relationships between the parties. Additionally, they each contain numerous subtle differences in both their expressed relationships and in the manner in which those relationships are treated. However well-meaning we may be, as construction providers we continually get ourselves into many unnecessary problems. We do this simply because even though our formal contracting arrangements may be different to varying degrees, many projects continue to “feel” like most others in terms of their relationships and the way we tend to treat each other. On every project there is always an owner, design force, and construction force—each doing what pretty much looks like the same activities that are done on every other project. If we are not careful, our own management or staff can allow themselves to slip into a type of complacency with respect to our contracting relationships.
Our problems as construction providers in this regard distill to two levels:
1. We must continually remind ourselves that every contract is indeed different. It is almost too simple to be necessary, but in truth it is crucial that we always be aware of the specific language for the current situation on the particular project. We must constantly remind ourselves to check, verify, and then check again before proceeding on an item in the way that we’ve proceeded with similar items in the past. If we are not careful, it will otherwise be much too easy to dig a hole much deeper before we can begin climbing back out.
2. Many of us are often too eager to interpret the documents and to direct subcontractors and suppliers directly with respect to their required performance under the particular contract. In the interest of moving the project along, and with the intention of taking a “can-do,” “take-the-bull-by-the-horns” action on what may seem on the surface to be a frivolous or opportunistic action on the part of a subcontractor, or in just trying to do what seems to be the right thing, we too often unintentionally assume the liability for these actions that more correctly belongs with the designers and/or the owner.
Read and reread the section of this Operations Manual entitled “The Pass-Through Clause.” Understand clearly that each subtrade is bound to the owner to complete its work to the same extent that the prime contractor is responsible to the owner for the work of that particular subcontract. In turn, understand that the owner is bound back to those same subcontractors (through the prime contractor) in the same manner and to the same extent. Understand that we as construction providers should not interpret the documents (and thereby assume the responsibility for the interpretation)—it is not our “obligation,” and it is not our “right” to interpret the contract documents either. Most typically, there is sure to be very detailed language placing responsibility for such contractual interpretation on either the design professionals or the owner.
Don’t be too quick to jump into the middle of an issue between a subcontractor and the contract documents. Learn to keep the owner and design professionals squarely in the line of fire, and take the actions necessary to compel the decisions that you are entitled to in order to keep the contractual relationships intact.
Develop this perspective, and hold onto it dearly as you consider the discussions of this and other sections of this Operations Manual.
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