All in Agreement
No Good Deeds Will Go Unpunished
Many people were intent on investing in the stock market, buying a vacation home and retiring early. However, the downturn in the stock market, as well as an overall tightening of the economy, has put a temporary roadblock in the way of good intentions.
There is a big difference between good intentions and being intent to scare or coerce some poor subcontractor into doing extra work that is not shown on the plans.
The construction catchphrase of the 21st century is the word "intent." General contractors, owners and architects have begun using the word "intent" a lot lately. Why? Because it works! It's a word from the magic kingdom!
When an owner or architect speaks the word to the GC, the general repeats it to the subcontractor. After you hear it, you become involved in someone else's problem. Then it gives way to much conversation about the issue and you begin to understand how the owner or architect feels.
I don't know what causes it, but the word "intent" turns hardcore professional subcontractors into milquetoast. The possible explanation for this transformation is that arguing about someone else's intent is an argument that can't be won! Why not avoid the whole issue of intent? Maybe we get involved because we all like a good fairy tale?
I find it funny that subcontractors, GCs, architects and owners all share the common goal of intending to make money on a specific job. The level of intent can be the platform for which serious problems arise.
Call it a fairy tale or a magical word but it seems to work! If you tie the magic word to the magic contract, the owner, architect and GC have a winning combination. The word has teeth when used effectively in the main contract and subcontracts.
Reading the main contract between the owner and GC is so important because there are some contracts that include language that requires the contractor to include work not shown on the drawings if it is included by the intent of the drawings.
Whine with your cheese?The following is an excerpt of an architect gone wild when told that the finish schedule did not show a stairway to be painted or a hard lid to be installed above the acoustical tile ceiling in the same stairway:
"This should have been brought up prior to the bid! You can clearly see it was our intent to have stairway 102 painted just like the other stairways! It was also our intent to have an unfinished drywall ceiling above the acoustical tile ceiling in stairway 102. The owner is upset about this and feels as we do that the intent of the drawings is clear. I'm directing you to proceed with this work at no cost to the owner!"
Of course, the GC comes to the subcontractor and tells him or her what the architect said and the subcontractor gets upset and asks how he came to this conclusion? As the GC explains, he opens his bag of fairy dust dumping it on your head and says, "I have to agree with the architect and owner that you should have included this work in your bid because the 'intent' of the drawings is clear!"
Your eyes glaze over like a Kripsy Kreme doughnut and you feel like everyone is against you. You begin to question your motives, that lead to doubt and finally, you cave in to their demands. All I can say is, "Wake up Dopey, this isn't the magic kingdom and you're not one of the Seven Dwarfs!"
If you did your homework in reviewing the main contract, you would have crossed out any contract language that would have bound you to the intent of the drawings or for that matter, the whims of the owner and architect!
A solution to the problem is a concise set of bid documents! As you know, bid documents are becoming less concise and in some cases built on an assembly line similar to a new truck. Like the truck, many hands have part in building a set of drawings.
The truth is that owners want to get their bid documents as cheaply as possible and architects want to get the plans drawn as cheaply as possible.
However, the owner and architect have found an effective way around a cheap set of documents and that is to include contract language that requires the GC and the subcontractors to be responsible for everything, that would include the intent of the drawings and the intent of the owner and architect. This may not apply to all owners or all architects but it is worth your time to review the main contract to find out for sure.
Never Never LandSo, what can we do when cornered like a dog in a job trailer with the owner, architect and GC all in agreement that the intent of the drawings requires us to perform extra work for free?
If you're not bound by contract language requiring you to perform work that is "intended" by the drawings, just say no! Then watch the three blind mice run around the room trying to find a better approach. You see, the goal in using words like "intent" is to confuse the facts and involve you in a problem that is not yours and an argument that you cannot win.
Stick to the facts, which would include the bid documents and your proposal as well as your contract. Avoid conversations or arguments about the intent of the drawings. There are some things not worth arguing about. You may choose to do something for free because it will benefit you in the long run.
As economic times change, the power of leverage changes. The leverage owners have will greatly increase while subs' leverage decreases. Financially strong owners and general contractors are going to have their way with financially or contractually weak subcontractors.
Everyone has good intentions. We are all intent on being successful and all of us want the good things out of life. The problem is that some GCs and the owners want the same things the subs want and they often hold all the cards.
The cards they play are simply plans, specifications and contracts. If subs focus on these three items and take the time to prepare a good bid per the plans and specifications, as well as reviewing the contracts before being are bound to them, subs will do fine.
If plans and specifications are unclear or poorly done the owner and architect will in many cases use contract language to protect themselves from costs or liability. The owner's wild card is the intent of the drawings or the intended use of the building. When the owner plays this wild card the GC must use the same card in order to convince the subcontractor he should fold! If the subcontractor decides to play his hand the general may have to absorb the subcontractors costs due to his contract requirements.
I recently read the following contract language:
The contractor shall in addition at no additional cost to the owner include that work which is not specifically indicated however intended by the documents and the use of the project.
Why would a GC agree to such language? I don't know for sure, however, competition could be the determining factor. When a subcontractor signs a subcontract, he or she is automatically bound to the terms and conditions of the contract between the owner and GC. If that main contract includes "intent" language, subs are then in the same boat as the GC.
Financial planners are a dime a dozen. However, they are not interested in people who don't have money! If you have a lot of money you have a lot of attention! Without money, our goals to pay off debt, invest in the stock market, buy a vacation home and retire early are not realistic.
Are we in this business to fulfill some fantasy or because we love the fruit of our labor? I would venture to say that most of us are in this business to make money! The idea of being our own boss was a delusion once we found out just how many bosses we really have. Bankers, insurance agents, taxing authorities, accountants and unions have become our new bosses. Being in business has become a responsibility for which we are sometimes meagerly compensated and other times very well rewarded.
Contracting and subcontracting is about entering into a contract to perform a service. The word contracting has nothing to do with construction. It should be said that we are in the construction business and the contracting business, which are two very different animals however are related.
We must keep one eye on our contracting business while keeping another eye on the construction business.
If it is your intention to make money in order to invest in the stock market, buy a vacation home and retire early, construction and contracting may be just the vehicle to get you there! Drive with caution, for along the way you will find the road heavily traveled and littered with contract language that we should swerve to avoid so we don't become another road kill statistic!
Remember: Teamwork begins with a fair contract!