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CheckSetTexas Architect
Insight: Liabilty
RFI Shootout
Fast is fine, but accuracy is everything. – Wyatt Earp
The architect's documents in this part of the world have always been inherently conceptual. Additional information has typically been required by the contractor from the architect during the construction phase. Up until the 1970s this information was transferred informally during face-to-face meetings or by telephone. Back then, most construction contracts were "lump sum" and the concept of the contractor delivering a "complete" building was alive and well. No documentation of the discussions were needed or prepared.
The proliferation of lawyers and claims in the 1950s and 1960s, coincidental with the invention of professional liability insurance, gave rise to the need for increased documentation. The era of asking questions and giving answers without documentation had come to an end. The Request for Information (RFI) was born.
A Request for Information is most frequently and legitimately used by contractors to ask architects questions about the intent of the construction documents, or to point out perceived omissions, or conflicts in the documents. It began as a written document, now digital, and it is tracked through software management programs capable of producing detailed reports on the RFI status.
Because the contractor is solely responsible for bidding the work responsibly and for determining how the work will be divided among the trades, the contractor must coordinate the scope allocation for pricing and execution of the work of the various subcontractors to assure there is no gap in scope between the trades and that the work as it is constructed is coordinated. These are major elements of the Contractor's Work Plan.
As with any complex human endeavor there are likely to be questions about how the work will be coordinated and sequenced. These subcontractor questions, once fielded almost entirely by the construction manager or general contractor, are now routinely passed through for the architect and engineers to answer.
Lethal Weapons
The need for effective communication notwithstanding, RFIs can be very high risk documents because they are often used for the less legitimate purpose of documenting or at least creating the illusion of negligence by the design professionals. They are almost always presented with a demand that the answer is needed as soon as possible; implying that any time beyond an immediate answer will delay the project.
Misfires
RFIs can often be misused. Some examples include:
INNAPROPRIATE QUESTIONS
An RFI may ask for the size of fasteners to attach sheathing on the building. This is a proprietary issue that is typically determined by the product manufacturer.
MEANS AND METHODS
Questions about means and methods are inappropriate unless the specifications have dictated such.
Since the contractor should be the expert on means and methods, it follows that he is likely best suited to determine the appropriate solution to a troublesome condition. To facilitate this effort, AIA document G716, Request for Information provides for a "proposed solution" to be included by the sender. This usually gives the architect a viable option to immediately consider, and it is frequently chosen as the best solution.
SUBSTITUTION REQUEST
Contractors sometimes ask in an RFI if an alternate product model or manufacturer can be used instead of following the prescribed process for seeking substitution approval.
AMBIGUOUS ANSWERS
Asking a question over and over in a different manner and claiming the repeated RFIs infer that the previous
questions were not adequately answered.
BIASED REPORTING
The contractor's RFI log will likely reveal that it is primarily designed to track the architect's shortcomings in addition to the routing and answers to questions. The emergence of document management software has aided and enhanced this objective. In most project meetings these days between the owner, architect and contractor, reports from the RFI log are used to display the delinquency of the architect for all to see.
Interestingly, similar infractions by the contractor are seldom if ever tracked, documented, or displayed. An item such as the submittal schedule, which is necessary for the architect to schedule and coordinate the submittal review process, is infrequently produced by the contractor as required by contract. Similarly, very few architects or contractors track how timely the contractor's submittals are relative to the submittal schedule.
INFLATED NUMBERS AND RESPONSE TIME
Recently, some contractors have begun using an interesting approach that serves to artificially increase the number of RFIs. For example, a contractor issues an RFI and the architect answers and returns it to the contractor the next day. Two weeks later the contractor sends another RFI to the architect asking for confirmation of the prior answer. The architect confirms the answer on the same day.
The contractor's web-based database now reflects that RFI 100 was originally issued to the architect on February 21 but apparently was not closed out with an acceptable answer until the second RFI 13 days later. This technique serves to artificially inflate the number of RFIs and the apparent length of time the architect took to answer.
Another favored tactic to boost RFI count is to issue numerous RFIs asking essentially the same question. For example, the slab edge is not dimensioned around an elevator shaft. The contractor submits separate RFIs for each of the four slab edges. One RFI would have sufficed.
Many RFIs using these tactics would be considered "frivolous," even though the information requested was necessary, simply because of the abusive way the RFI was submitted.
If AIA document A201, Article 3.2.1 is followed wherein it requires the contractor to review the contract documents in advance to discover any missing or erroneous information, the RFI will be sent sufficiently in advance so that it will not be dependent on an immediate answer:
...the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work... These obligations are for the purpose of facilitating coordination and construction...
Logically, it follows that if the contractor is demanding immediate answers to their RFIs, they are openly admitting that they have not followed A201.
Another popular contractor allegation is that, by virtue of having to ask the RFI question, there is an omission in the drawings. This approach does not recognize or acknowledge that A201, Article 4.2.14, anticipates such questions:
The Architect will review and respond to requests for information about the Contract Documents... the Architect will prepare and issue supplemental Drawings and Specifications in response to the requests for information.
A201 addresses with certainty that the drawings and specifications do not contain all of the information required to construct the project. Contractors who comply with A201 have coordinated their project and developed their work plan early, and their RFIs should not be dependent upon an immediate answer.
Live Ammunition?
Are RFIs contract documents? They are not generally considered so because they cannot change contract cost or time unless incorporated into a contract modification such as a change order. However, in the event the contractor judges the RFI to not change cost or time, then the RFI may well be considered a contract document under the terms of A201, which states in Article 7.4:
The Architect has authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time...
When a contractor determines that the RFI answer changes the contract sum or time, he is prohibited by A201e from proceeding with that portion of the work without the proper change document. A201, Article 7, is very specific as to the documents required for changes in the work:
Changes in the Work may be accomplished after execution of the Contract…by Change Order, Construction Change Directive or order for a minor change in the Work...
This is the source of much dispute in the industry when the contractor elects to proceed with the work anyway, treating the RFI as though it were a Construction Change Directive. When these disputes become claims, the contractor often alleges that he was directed, by the architect's RFI response, to do the additional work.
You may ask, is it reasonable for the contractor to immediately know the RFI answer is increasing the contract sum? The answer is yes, if the contractor has adequately prepared a Work Plan and coordinated the trades.
Firearm Proficiency
The RFI should be used to obtain information that the requesting party cannot access through research, document rev iew, or any other reasonable means. Moreover, the RFI should address only information that does not already exist in a discernable form, or is not reasonably inferable from the documents.
Information may not be specifically stated in the documents, but it may be inferable from them. That is, if a wall section is not cut in a particular area, but all other wall sections contain specific components, it is reasonable to infer that the same components are required for the area in question. A201, Article 1.2.1, is very specific in explaining this issue:
The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work…The Contract Documents are complimentary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results.
However, some contractors seek to split hairs, alleging that if each similar condition is not specifically detailed, the work is not in their scope. Although this is contrary to A201, since "inferable" is to a degree subjective, it frequently becomes an issue in dispute.
Returning Fire
How long should it take to answer an RFI? When claims are made against architects a popular allegation is that the architect took too long to provide an acceptable answer and thus delayed the project. Some plaintiff's experts actually take the position that the architect's performance must be measured against the contractor's expectation for receiving the answer rather than a reasonable time relative to the RFI subject matter. This is a patently absurd proposition as it has nothing to do with realistic time limits, reasonable expectations, or the requirement for the contractor to plan the work in advance.
Obviously, how long it takes to answer an RFI will depend on the content of the question. For this reason architects should take care when agreeing to contract provisions or writing specifications that state, "the Architect will respond to RFIs in 10 working days." Much more preferred is, "the Architect will respond to RFIs in an average of 10 working days. It is acknowledged and understood that some RFIs will take longer to answer than others."
Who Fired that Shot?
The first RFIs originated from contractors, and since contractors require more information and clarifications during construction, they send more RFIs. However, information is required by every team member, and the owner and architect can also send RFIs. In fact, using RFIs to request and track information responses is the best way to maintain documentation on time driven activities. AIA document G716, Request for Information, clearly states on the instruction sheet that the document can be used by all parties.
While Requests for Information are a common tool frequently used between contractors and architects in the design and construction industry to facilitate communication, some contractors use them to facilitate making claims. Contractors who want to send RFIs seem to generate more, and contractors who do not want to send RFIs seem to generate fewer.
A high number of RFIs on a project does not always indicate shortcomings on the part of the design professionals. Inexperienced construction staff who struggle with reading the drawings, accelerated project schedules, and poor preparation by the contractor can be among the causes of increased RFIs.
RFIs are an acute source of consternation for design professionals when they are used in a frivolous or unfair manner. Send us your war stories. Tell us how many RFIs are reasonable. Do you have a procedure for controlling the number of RFIs on your projects? Share your experiences with others in an effort to develop strategies. The next time you're staring down the barrel of a tough RFI, stay focused, use your resources, and please heed our warning, be careful out there.
--Grant A. Simpson, FAIA, serves as a consultant on project delivery for several international firms where his responsibilities included construction documentation, project management, and loss prevention activities. He has served on the AIA Practice Management Advisory Group and currently serves on the AIA Risk Management Committee
--James B. Atkins, FAIA, is a principal and chief risk management officer with HKS, Inc. He has served on the AIA Risk Management Committee and has chaired the Architect's Handbook of Professional Practice, 14th Edition Revision Task Group.
This article is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions, and illustrations apply to specific situations
