Construction Projects – How Should Those Involved Work Together?

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Nov 30, 2023

When we think about the individuals involved in an on-campus construction project, architects and contractors are often the first people who come to mind.  There are other individuals, however, who serve important roles in a school’s construction project.  The way those involved work together can be critical to managing risk and promoting the success of the project.

Traditionally, in any construction project, the role of the architect is to designs the project and the role of the contractor is to perform the work, deciding the means and methods for the construction.  This division of duties is most prominent when the school first hires an architect to design the project and then later hires a contractor to execute the construction based on those plans.

There is risk, however, with this project delivery system (traditionally called “Design-Bid-Build”) because of the Spearin Doctrine, a concept in construction law dating back to 1918 and arising from the United States Supreme Court’s decision in United States v. Spearin.  Under the Spearin Doctrine, an owner (i.e., a school) impliedly warrants design specifications that it provides to a contractor, and the contractor (who is bound to build according to plans and specifications prepared by the owner), will not be responsible for the consequences of any defects in the plans and specifications.  When constructability issues arise, the contractor blames the architect for errors and omissions in the plans and specifications.  The contractor then requests change orders for additional compensation and more time on the construction schedule.  The owner is then caught in the middle of an argument between the architect and the contractor where the architect claims it has prepared the plans and specifications within the standard of care versus the contractor who claims that the plans and specifications have errors and omissions.

In light of this, a more integrated project delivery system is preferable in which the school brings on the contractor early under a preconstruction agreement.  When the architect, contractor, and owner all work together as a team from the outset of the project, each party contributes and can collaborate to create a successful project.  This structure may also help relieve the owner (i.e., the school) from some of the risk that arises under the the Spearin Doctrine.

The Owner’s Representative, who oversees the project on the school’s behalf throughout the design and construction process, is another individual who is important to any campus construction project.  Schools should consider whether they have someone in-house who has the time, experience, and expertise to serve as the Owner’s Representative.  The person who serves in this role should be experienced and knowledgeable in construction management, including reviewing construction documents, project oversight, budget monitoring, construction organization, effective communication, and conflict-resolution.  If the school does not have someone in-house with this knowledge, experience and time to dedicate to overseeing a construction project, then the school should consider hiring a third party professional to serve as its Owner’s Representative.

Other individuals important to campus construction projects are the individuals overseeing and performing work for the contractor.  Any contract should include provisions requiring the contractor to provide adequate manpower to complete the work and to provide competent supervision.  The contract can include the names of key personnel who the school has met, spoken to, and are comfortable with overseeing the project on behalf of the contractor.  One of these named, key personnel can be the contractor’s superintendent who oversees and coordinates the work and who the school will likely have a considerable amount of contact with during the construction phase.

Good coordination, collaboration, and communication between all team individuals can help promote a successful campus construction project.

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