Resources

Hurricane Season 2015

 Helpful Links

How To Prepare for a Hurricane Guide

http://www.nhc.noaa.gov/    National Hurricane Center has a wealth of information about the Hurricane season, tracking any potential storms, preparation for the storm, evacuation and shelters.

http://www.nhc.noaa.gov/experimental/inundation/   National Hurricane Center Potential Storm Surge and Flooding Map 

http://www.fema.gov/   800-621-3362     Federal Emergency Management Agency  where you can apply for recovery assistance after the storm . 

http://www.disasterassistance.gov/    Disaster Assistance has access to disaster help and resources.

www.expertise.com/home-and-garden/home-preparation-for-natural-disasters

http://www.homecity.com/homeowners-lightning-safety-guide

http://www.fema.gov/media-library-data/1409003345844-0e142725ea3984938c8c6748dd1598cb/ How_To_Prepare_Guide_Hurricane.pdf

https://www.depts.ttu.edu/nwi/research/windprotection.php

http://www.intheswim.com/eGuides/preparing-your-pool-for-a-hurricane

http://www.improvenet.com/a/home-emergency-disaster-safety

EXPERT WITNESShttp://en.wikipedia.org/wiki/Expert_witness

CONSULTANThttp://en.wikipedia.org/wiki/Consultant

PROJECT MANAGEMENT – http://pmbook.ce.cmu.edu/

Insurance Claims Resources  – http://www.claimspages.com/

Building & Construction Directory - http://www.thebluebook.com/

 

The Role Of The Consultant In Construction

 INTRODUCTION

The role of the consultant on a construction project is often not fully understood by the

other parties involved on the project, including the consultant’s client, the owner. Consequently,

the consultant may find itself underutilized. There are also instances where the consultant itself

is not fully aware of its duties and obligations to the owner and others, thereby exposing itself to

potential liability claims.

During construction, the role of a consultant is to administer the contract as described in

the “Contract Documents”. However, the Contract Documents do not reference the agreement

between the owner and consultant which outlines the professional services to be provided to the

project. As noted above, the impact of the services provided by the consultant can be significant.

The contractor should make themselves aware of the arrangement in place between the owner

and the consultant and understand the scope of that arrangement at the outset of the project.

With increased awareness and understanding, all parties can benefit from the advantages

of having a consultant involved in the construction process. With a clearer understanding of its

obligations, the consultant can better carry out their obligations to the owner and others.

The purpose of this paper is to provide an analysis of the role of the consultant as defined

by the agreement between the consultant and the owner, the applicable industry

standards, and the law, during the various stages of construction.

 

 

Role of the Consultant

The Consultant now provides administration of the Contract as described in the Contract Documents with no temporal or other restrictions on the provision of its services.

 

This is a new provision.

The Consultant must promptly inform the Owner of the date of

receipt of the Contractor’s applications for payment. If the

Consultant does not act promptly, then the Contractor can give notice

of default to the Owner with warnings of suspension or termination of

the work. This remedy remains unchanged from the 1994 version.

Except with respect to Financing Information Required of

the Owner, the Consultant will be, in the first instance, the interpreter

of the requirements of the Contract Documents.

This is a new section.

The Consultant will make findings pursuant to GC 6.6 in relation to

claims for a change in Contract Price. The structure here is to lump

together claims for extra payments claimed by the Contractor for any

reason and to submit them to the Consultant for its finding.

This procedure deals with claims and is distinct from the contract

provisions which deal with the resolution of disputes. A claim may

become a dispute when it is not recognized as a valid claim under the

contract.

 

Cost of Review and Inspection of the Work

The wording of this section was subtly changed. Rather than the

Contractor being obliged to give the Consultant “reasonable notice of

when the work will be ready for review and inspection”, the

Contractor is now required to provide “reasonable notification” of the

same.

This change can be interpreted to mean that notice should be

communicated more formally than before, and that sufficient notice is

required and that a record of notification should be retained by the

Contractor to avoid subsequent debates about how and when notice

was given.

 

The Contractor must pay the cost of making any test or inspection, if

designated in the Contract Documents to be performed by the

Contractor or by the laws or ordinances applicable to the Place of

Work; and must pay the cost of samples required for any test or

inspection to be performed by the Consultant or the Owner, if

designated in the Contract Documents.

There were no such provisions in the 1994 version.

 

Defective Work  The Contractor is required to promptly correct any defective work

that has been rejected by the Consultant as failing to conform to the

 

THE STANDARD FORM CONSULTANT CONTRACTS

Typically, the responsibilities of the consultant on a construction project are set out in a

standard form agreement between the consultant and the owner. The consultant may be an

architect or an engineer. For the architect, the standard form contract most commonly used is the

Canadian Standard Form of Contract for Architectural Services Document Six (“Document 6”).

For the engineer, the typical standard form contract is the Association of Consulting Engineers of

Canada Document 31 (“ACEC 31”).

Both Document 6 and ACEC 31 can be used in its prescribed standard form, or parties

can tailor the agreement to fit the needs of different parties and projects by the use of

supplementary conditions. To the horror of legal counsel, there are projects on which no formal

written agreement is actually executed between the owner and the consultant. While parties are

not required to use the standard form contracts, it is prudent for the parties to execute some

written agreement, whether it is a standard form agreement with or without supplementary

conditions, or a unique agreement. In fact, I would go as far as to say that a written agreement is

a bare minimum for risk management.

It is the writer’s view that both Document 6 and ACEC 31 are “pro-consultant”, with

terms drafted by the consultant for the consultant. For example, both standard form contracts

contain terms that protect the consultant by limiting the consultant’s liability exposure both in

terms of time and quantum. Owners may want to consider adding more protection to the

consultant agreement by using supplementary conditions or a unique contract drafted for a

specific project. If one subscribes to the view that a fair and equitable agreement is an effective

deterrent of project strife, then supplementary conditions will be required to add balance to the

standard form contracts.

 

THE ROLE OF THE CONSULTANT DURING THE DESIGN STAGE

Involving the consultant at an early stage of the construction project is often beneficial

for the owner. In fact, a consultant may even be involved pre-design in order to assist an owner

with tasks such as project budgeting and management, site selection, space relationships, and

environmental studies.

During the design stage itself, the consultant determines the feasibility of the project from

an artistic, technical, logistical and financial standpoint. The consultant creates project design

concept and seeks approval for this design concept. It is also during this stage that the consultant

obtains the required development permit for the project.

 

Schematic Design

During the schematic design stage, the consultant determines the feasibility of the

project. The consultant considers and proposes the preliminary concept and estimated cost of the

project. As with all tasks the consultant undertakes to do, in creating this proposal the consultant

must exercise the skill, care and diligence which may reasonably be expected of a person of

ordinary competence, measured by the professional standard applicable at the time the work is

being carried out.3 The consultant should thus not propose or be involved with a project that he

or she knows, or ought to know, cannot succeed. This is not to say that a consultant

unequivocally guarantees the results of a project, but rather, that the consultant must be

conscientious in performing its role.

In making its proposal regarding the concept and cost of a project, the consultant

must review and consider the characteristics of the chosen site, various design approaches, the

types of construction contracts, and structural, mechanical and electrical design concepts,

amongst other things. Whether the consultant is an architect or an engineer, he or she will have

to coordinate with his or her counterpart at all stages of the project’s development (for example,

an architect consultant will typically coordinate normal engineering services, and vice versa).

The consultant will want to thoroughly review everything that may impact the cost of a project

prior to giving its reasonable estimate of cost, as generally consultants are held to their estimate

unless they can meet the rather stringent test of justifying an increase in costs. Consultants are

bound to possess a reasonable amount of skill in their profession and to use a reasonable amount

of care and diligence in the carrying out of work which they undertake, including the preparation

of plans and specifications. If the cost of the project is not reasonably close to the consultant’s

estimate, it is the responsibility of the consultant to show how the discrepancy arose and why he

or she cannot be blamed for it.4 Any changes to the cost estimate during the project caused by

forces such as inflation or design changes must be accurately and promptly presented by the

consultant for the consultant to avoid negligence.5 The Supreme Court has found almost a

custom amongst engineers and architects, that parties relying on estimates should expect a 10%

plus or minus variation.

 

 Design Development

It is during this stage that the consultant moves forward with concept approval. It

is likely that he or she will take a more in depth look at some of the items considered during the

schematic design stage, and coordinate and develop the actual design of the project. If not

already done during the schematic design stage, the consultant will review the building code, and

make a development permit submission. In some cases, the consultant may be responsible for or

involved with additional tasks like interior design development, promotional presentations,

rezoning variance submissions, geotechnical and/or civil design development, and special studies

reports (such as planning tenant or rental spaces).

It is the consultant’s responsibility to determine which licences and permits must

be obtained and advise the owner regarding the same. The consultant has a duty to ensure the

owner is aware of the options available during this process. For example, in one case the

architect made some inquiries with lower level employees at a planning department regarding

whether a property zoning would allow multiple dwellings. He received favourable replies from

these employees and reported this to the developer, who proceeded to file plans based on the

architect’s information. The plans were ultimately rejected by the decision-maker at the planning

department. Because the architect had not advised the developer that the planning department

decision-maker could be consulted at the pre-design stage of the project, the developer was able

to successfully sue the architect in negligence.6

Typically the owner approves the consultant’s design. To the extent the owner has

the same or more experience with any particular aspect of the plan, the consultant may avoid

liability regarding that design component, as the owner may be in a better position to determine

whether the design should proceed with that component as is. Conversely, the owner will only be

responsible for the technical aspects of a design on rare occasions; generally, the owner does not

have the professional background necessary to be held accountable for these parts.7

 

Construction Documents

The consultant is responsible for the specifications, plans and drawings related to

a project. Unless timelines are specifically accounted for in a contract, the consultant is under an

implied obligation to provide the owner with the specifications, plans and drawings within a

reasonable time.8 The specifications are a detailed and precise written description of the project,

while the plans and drawings are detailed images of the same. It is extremely important that the

drawings provide ample detail because they are used by contractors to both estimate the cost of

the work involved, and to construct the work as designed.9 If the drawings or specifications do

not indicate unusual features or hazards on a site, for example, the consultant may be held liable

for the increased cost of construction resulting from a contractor’s encounter with these items.10

This liability is subject to the terms of the contract between the owner and the contractor. In

addition, while detailed, it is unusual for drawings and specifications to provide information to

the contractor regarding how the work should be constructed. Unless otherwise stipulated,

contractors are at liberty to choose their own construction methods.11

While typically the consultant has been hired before he or she creates the

specifications, plans and drawings for a contract, at times, drawings are prepared by a consultant

and given to an owner in the hope that the owner will hire the consultant for the project. In these

circumstances, the consultant cannot expect to be paid for his or her efforts in preparing the

drawings. Whether a consultant is entitled to remuneration in a situation where the owner has

asked the consultant to prepare drawings, but makes them subject to the owner’s approval, is less

clear. While an early decision from England indicated that the consultant did not have to be paid

in these circumstances, later decisions have gone in the opposite direction, holding the owner

responsible for payment. For example, in one situation an architect was asked to design a home

for a family similar to the family’s existing house with a few changes. The architect produced

schematic sketches and design development drawings, as well as working drawings which were

submitted to the City of Vancouver to obtain a building permit. After seeing the schematic

sketches and design development drawings the owner expressed dissatisfaction with certain

aspects of the drawings, claiming they did not reflect what the parties had initially discussed. The

parties had other meetings, revisions were made to the drawings, but a firm decision was not

made with regard to a few details. The owner left for Hawaii, the architect prepared the final

drawings and, confident that the owner would accept them, submitted the drawings to the city.

When the owner discovered the drawings did not reflect his intentions he hired another architect

who completed the family’s home. By the time the owner terminated his relationship with his

initial architect, the architect had invoiced the owner for payment for the cost of preparing the

plans for submission. The court found that the architect was entitled to this payment.12 A general

test to determine whether a consultant is entitled to payment is whether the circumstances gave

rise to a presumption that the work was intended to be paid for.13

 

  1. THE ROLE OF THE CONSULTANT DURING BIDDING AND NEGOTIATIONS

The consultant represents the owner and acts as the owner’s agent in the preparation,

issuance and supervision of tender documents. The consultant also prepares, or co-ordinates and

issues the addenda to the tender documents, if needed. Once bids have been received, the

consultant evaluates them and consults with the owner about them. While the consultant is

responsible for a considerable amount of the tender process, the owner can have some

involvement with it. ACEC 31, section 2.7, states that the owner is responsible for the incidental

advertising related to obtaining tenders, and that the owner must “provide or reimburse the

Engineer for obtaining necessary legal, accounting, insurance, bonding and other counselling

services in connection with the Project”.

The consultant owes a duty of care to protect owners, even if there is no contract between

them. In one case, the structural engineer had no contract with the owner; rather, the architect

had hired him. The engineer became concerned with the soil conditions and warned the architect.

However, he failed to tell the owner and was found liable for failure in his duty of care.4*** It is

the consultant’s responsibility to ensure that the tender documents contain all of the information

13 McLachlin et al., supra note 1 at 278-279.

 

that the owner has pertaining to the project. If the tender documents omit or provide inaccurate

information, the consultant must draw this to the contractor’s attention. If new information or

errors come to light after the tender documents have been issued, the consultant must ensure that

all contractors interested in bidding receive an addendum correcting the deficiency. If the

consultant does not comply with this process, the consultant or the owner may be liable to the

contractor for any resulting harm.14 In one case, an engineering firm designed and stated the

specifications for a road construction project. A construction firm successfully bid on the project

based on the specifications and drawings that the engineering firm provided, and was awarded a

contract with the province of British Columbia. After beginning construction, the contractor

claimed that the documents the engineering firm prepared were inaccurate and that they suffered

a loss as a result. The Supreme Court of Canada agreed with the contractor, and held that

because the contractor was relying on the documents the engineering firm provided, the

engineering firm was liable to the contractor.15 This conclusion was based in part on the fact that

bidding period was too short to allow bidders to conduct a thorough review fo the accuracy of

the engineering works; furthermore, duplication of the work would be costly. Thus, bidders must

be able to rely on those who supply information to them.5***

 

  1. CONSTRUCTION CONTRACT ADMINISTRATION

During the construction contract administration, the consultant owes a duty to the owner

to ensure that the contractor abides with the terms of its construction contract and that it follows

the plans and specifications in constructing the project. The most common way for the consultant

to ensure that the construction contract is being adhered to is through on site field reviews.

(a) Field Reviews

In Document 6, “General Review / Field Review” is defined as follows:

review during visits to the Place of the Work (and where

applicable, at locations where building components are

fabricated for use at the Project site) at intervals

appropriate to the stage of the construction that the

Architect, in his or her professional discretion, considers

necessary to become familiar with the progress and quality

of the Work and to determine that the Work is in general

conformity with the construction documents.

While the consultant is not expected to be at the project site every moment of

construction, either the consultant, or a qualified person acting on his or her behalf, should be at

the project site during all significant phases of the project. Before crucial elements of the project

are concealed from inspection, the consultant is obligated to ensure they comply with the project

drawings and specifications. In addition, the more complex the project is, and the greater the risk

is if something with the project goes wrong, the more attention the consultant has to give it.16 In

most cases, the consultant’s responsibility to inspect the project goes beyond merely looking at

it; rather the consultant has a positive obligation to ask the questions necessary to satisfy him or

herself that the project drawings and specifications are being complied with.17

The contractor has a responsibility to ensure the consultant knows when the

project is advancing from stage to stage. If the contractor does not do this, the consultant can

require that the contractor reveal work that has already been covered so that it can be inspected,

if this exposure is reasonably possible. If it is not possible for the contractor to reveal the covered

work for inspection, and the contractor did not give the consultant reasonable notice of the stage

the project had reached, then the consultant may inform the contractor that it did not abide by the

terms of its contract. In this situation, the contractor may be held liable for any damage that

results if an inspection could have avoided this damage.18

 

Change Orders

When a change in the Work is proposed or required,

the Consultant will provide the Contractor with a written

description of the proposed change in the Work. The

Contractor shall promptly present, in a form acceptable to

the Consultant, a method of adjustment or an amount of

adjustment for the Contract Price, if any, and the

adjustment in the Contract Time, if any, for the proposed

change in the Work.

When the Owner and Contractor agree to the

adjustments in the Contract Price and Contract Time or to

the method to be used to determine the adjustments, such

agreement shall be effective immediately and shall be

recorded in a Change Order. The value of the work

performed as the result of a Change Order shall be

included in the application for progress payment.

At times, the project drawings and specifications the consultant created have to be

amended after the actual construction of the project has begun. It is not uncommon for the

consultant to have the contractual authority necessary to order changes or additions to the

project. The necessity for a change order may be the result of changes made by the owner or the

consultant, deficiencies in the drawings and specifications, and through unexpected difficulties in

the physical conditions of the site or in obtaining necessary materials. If the change order is

required because of a failing in the project drawings or specifications, the consultant may be

responsible for the additional cost incurred.

As noted above, the consultant owes a duty of care to the owner, and this duty

carries over when the consultant is considering any change orders. This means that the consultant

must consider the interests of the owner in agreeing to any change orders.19

 

Impartial Adjudicator

When dispute arises between the contractor and the owner which they are unable

to resolve, the first stage in the dispute resolution process set out in the CCDC 2 is for the parties

to involve the consultant. The particulars of the power of the consultant are set out in GC 2.2.7 to

GC 2.2.9. The consultant has the authority to resolve all claims or disputes relating to the

performance of the work or the interpretation of the contract documents, or any other matters

where the parties have failed to agree, and agreement is required.

The consultant is required to determine disputes in a unbiased and fair manner. In

such circumstances, the consultant must remove itself from its role as the owner’s representative

on the project to become the unbiased adjudicator of a dispute between its client, the owner and

the contractor. The dual roles of the consultant on the project relies heavily on the

professionalism of the consultant, and adds to the interesting and somewhat complex tripartite

relationship between owner, contractor and consultant under the CCDC 2 paradigm.

Consultants may fear that their role as a decision-maker at first instance would be

undermined if their decisions were exposed to a claim by a disappointed party. In some cases,

consultants have requested that the contract include a supplementary condition which is a waiver

of any claims arising from the consultant’s interpretations and findings with respect to the intent

of the contract documents. The parties will need to negotiate a balanced result amongst

themselves, but it seems appropriate to include this waiver of claims so as to maintain the

consultant’s impartiality.

The one noted exception to the scope of the consultant’s authority in GC 2.2.7 is

set out in GC 5.1 – Financing Information Required of the Owner. On a dispute relating to

financing information required of the owner, the consultant has no authority to make any finding.

If a dispute arises in an area over which the consultant has no authority to make a finding, the

procedures under GC 8.1.3 and GC 8.2.3 to GC 8.2.8 are to be followed.

To invoke the power of the consultant, either party can make a referral to the

consultant in writing, and copy this to the other party. The consultant will then investigate, and

make a finding. This finding will be forwarded in writing to both the contractor and the owner

“within a reasonable time”.

If either party disputes a finding made in writing by the consultant, it must

provide Notice in Writing to the other party and to the consultant so stating (GC 8.2.2) within 15

Working Days. Failure to send such a notice results in the parties being “conclusively deemed” to

have accepted the finding, and to have expressly waived and released the other party from any

claims in respect to that particular matter set out in the finding.

 

The notice of dispute under GC 8.2.2 must contain sufficient particulars,

including references to particular terms of the contract documents which support the position of

the party disputing the finding. The responding party must provide, within 10 Working Days,

Notice in Writing setting out the particulars of its position, again including reference to any

specific contract documents.

The consultant also has the authority to give instructions to the contractor to

ensure proper performance of the Contract, and to prevent delays. The parties shall carry out the

instructions, without prejudice to their rights to maintain their positions in the dispute. If the

ultimate conclusion is that the instructions of the consultant resulted in work outside the scope of

the contract, the owner is liable to the contractor for the value of that work, including costs

resulting from interruption of the work.

 

Payment Certifier

Construction contracts differ from other contracts in the sense that under

construction contracts, such as the CCDC 2, the contractor can receive partial payment for its

work before the entire project has been completed. The construction contract will typically

outline a number of phases or intervals at which the contractor is entitled to progress payments,

and the amount the contractor is entitled to for each payment. Usually once a specific component

of the project has been completed, the contractor can receive partial payment for finishing that

particular part. It is the consultant’s responsibility to determine when these phases have been

successfully completed by the contractor, and thus when the contractor is entitled to payment.

Without the consultant’s certificate, the contractor cannot receive payment.

The contractor is responsible for applying for certificates of payment within a

reasonable time. The contractor should include in its application any proof it has in support of its

claim, such as bills of sale for materials. The consultant must deal with all claims for payment

promptly. In determining whether the contractor should receive a progress payment, the

consultant must decide not only whether the work has been completed and materials delivered,

but also whether the quality of the work conforms with contract requirements, and whether

subcontractors and suppliers have been paid.20 The consultant usually has the power to make

deductions to the contractor’s payment for holdbacks in accordance with the Builders Lien Act,21

and for incomplete work. Ultimately, the consultant is responsible for issuing the final certificate

for payment, at which time he or she must consider whether any lien claimant remains unpaid,

the cost of rectifying any defective work done by the contractor, and whether the final payment

amount should be adjusted in accordance with the progress payments.

 

  1. POST-COMPLETION INSPECTION

The consultant is responsible for inspecting the project once it has been completed. Like

a field review, this post-completion inspection is not just confined to a visual inspection, but

instead includes an obligation to make appropriate inquires of the contractor. The postcompletion

inspection must be comprehensive, and include structural, mechanical, and electrical

inspections. Once the consultant considers the work to be complete, he or she can issue the final

certificate for payment for the contractor.

 

  1. CONCLUSION

The consultant has a wide variety of roles to play during the construction process.

Because the consultant plays a multifaceted part in the construction project, and is usually

involved in the project from the project’s inception to its completion, it is important to fully

understand consultant and authority. Doing so ensures that the consultant can be fully maximized

on each construction project.