Read, understand, and heed Division 00
It is critical for the design professional to read, understand, and heed Division 00 prior to drafting any Divisions 01-49 specifications. The professional responsible for reviewing the owner’s Division 00 should carefully make notes during his/her evaluation of the document as reminders of the provisions that need to be coordinated with the specifications, especially Division 01. Among other things, it is critical to note what is not covered in the owner’s Division 00 but is covered in the Division 00 with which the design professional’s standard specifications are coordinated. There may be opportunities to incorporate provisions from the design professional’s Division 00 into either the owner’s Division 00 or, where appropriate, the project’s Division 01 specifications.
Read, understand, and heed Division 01
Someone has to read the Division 01 specs, too. Optimally, it should be the same person who reviewed the owner’s Division 00. It is advisable to prepare more additional notes on the coordination needs for Division 01.
Consistent use of defined terms
It is important to identify the defined terms in the owner’s non-standard Division 00 documents and compare them with the defined terms and terminology used in the design professional’s standard construction documents. Many defined terms used in the design professional’s specifications—typically indicated with either initial-capitals or in all-capital letters—are likely not the same as those in the owner’s Division 00 documents. For example, where AIA and EJCDC documents refer to the project owner as “Owner,” the owner’s non-standard Division 00 may use other terms such as “City,” “District,” or “Company.” Sometimes, the owner’s documents use multiple defined terms to refer to different individuals or entities within the owner’s organization. Where AIA documents call the design professional “Architect” and EJCDC documents use the term “Engineer,” non-standard Division 00 documents may use “Consultant,” “Design Professional,” “A/E,” or something else. Some non-standard Division 00 documents omit the role of the design professional altogether. This poses a significant challenge for the specifier attempting to coordinate the documents.
It is important the defined terms are used consistently across all the construction documents. Sometimes, non-standard Division 00 documents do not locate all the defined terms in one, convenient place, thereby requiring the specifier to hunt for them. In contrast, EJCDC C-700 includes all defined terms in its Article 1. AIA A201 sprinkles its defined terms throughout its 38 pages.
Also, many non-standard Division 00 documents do not consistently use their own defined terms, thus presenting substantial difficulty for the specifier.
Do not assume
If the specifier is inexperienced with this type of work or uncertain about the meaning of a provision in Division 00 or elsewhere in the proposed construction documents, it is best to obtain advice from an experienced person, who understands how to interpret such clauses. If an incorrect assumption is made, the consequences could be significant at the construction stage.
Get them coordinated
There is no escaping it. Someone has to get into the weeds and work out the problems. One can use the notes prepared during the reviews of Divisions 00 and 01. As the design professional goes through the specifications, it is advisable to think critically of whether the topic(s) addressed in that section are coordinated with the owner’s non-standard Division 00, and to be conscious of the gaps that need to be filled.
Unfortunately, more detailed advice is impossible because each set of non-standard Division 00 documents is unique like Forrest Gump’s box of chocolates: “You never know what you are gonna get.”
Other concerns associated with using non-standard Division 00 documents
There are many ways in which a non-standard Division 00 can increase the owner’s and design professional’s risk such as:
- injury of a worker at the site;
- damage to adjacent property; and
- damage or loss to the construction-in-progress due to events such as abnormal weather.
It is a dangerous, liability-filled world out there, no matter how much care one takes to avoid damages and loss.
Based on this writer’s review of more than 100 different owners’ non-standard Division 00 documents, a brief overview of common typical risk-management clauses are presented below. The clauses are commonly of concern when using non-standard Division 00 documents. The following should be checked on all non-standard Division 00 documents.
Identification of the design professional
For proper risk management, the design professional should be identified by its full, legal/contractual name and office address in the construction contract. AIA and EJCDC documents do this in the owner-contractor agreement. Often, non-standard documents omit this entirely.
A related matter is to evaluate the third-party obligations on the design professional set forth in the owner’s non-standard documents against the established or likely scope of the design professional’s services during construction. Optimally, the design professional’s third-party obligations noted in the construction contract should match those in the associated professional services agreement.
Including the owner, design professional, and other consultants in the contractor’s indemnification obligations, and as additional insureds
This is a basic, essential risk-management protection that costs the owner very little or nothing, and can save everyone a lot of grief and money in the event of litigation. Such protection is beneficial under most states’ insurance laws and regulations. Often, additional insured status and being included in the contractor’s indemnification obligations are interrelated. Additional insured status is typically available for all types of insurance except workers’ compensation and the contractor’s professional liability insurance. The design professional and their sub-consultants often do not need to be insured on the builder’s risk insurance policy because they rarely have insurable property on the construction site. The significant majority of non-standard Division 00 documents reviewed by this author omit the design professional from these protections, and some leave out the owner as well. In contrast, EJCDC and AIA documents include the engineer, architect, and their sub-consultants along with the owner as additional insureds on most contractor-furnished insurance and also in the contractor’s indemnification obligations. None of these protections reduces the design professional’s insurance costs or need to carry its own liability insurance, but helps to protect the design professional and owner from damage and loss resulting from the contractor’s actions or inactions.