Words are important — an obvious truism and pertinent to a collaborative project delivery effort. The action item is to ‘mobilize the language’ for maximum effect in our contract documents for water/wastewater projects. First, a quick anecdote: A lawyer friend (not mutually exclusive) shared a simple and keen observation when I first worked with him on a contract review. He asked, “Know the difference between an engineer and a lawyer?” After searching my library of lawyer jokes, I had to admit ignorance of the difference. He said, “Lawyers know they’re not engineers.”
To the point, RFP and front-end specifications must strive for pragmatic clarity, function, and, where possible, brevity. The three primary types of specifications are prescriptive, performance, and proprietary. Each have features worthy of extra efforts to improve clarity, but in my opinion, performance-based specifications are the most correct path to improved safety, productivity, and quality for better risk navigation. Time and again, I’ve found performance specifications are worth the “sweat equity” to effectively communicate well-defined and mutually agreeable expectations, which is also good for collaborative teamwork. This allows proposal teams to showcase competitive differentiation and best-for-project solutions through creativity, capacity, and honed means and methods. This keeps design, preconstruction, construction, and commissioning teams focused on effective collaboration beyond the contract framework. Good communication is worth the effort. Associated risks are then appropriately identified for better mitigation or avoidance throughout the project’s duration.
During preconstruction, go through boilerplate technical specifications as design progresses, not after. Technical writers were taught to push all risks downstream. Instead, ‘mobilize the language’ from the start to align with design-build best practices. An easy example: The popular DBIA contract forms (525, 535, and 545) for design-build project delivery appropriately use “design-builder” instead of “contractor.” Specification tune-up here is a relatively simple find-and-replace task.
Other retooling of specifications requires higher scrutiny. Repetitive use of “the contractor shall…” can be restated as “complete all work specified…” Removal of other repetitive boilerplate statements in design documents can also be adjusted for consistency with the prime contract – the ultimate arbiter of truth. Whether or not the word “contractor” was in the specifications, the design-builder remains responsible for meeting the expectations in the contract documents. Through collaborative communication, high-performing project delivery teams can proactively tune all boilerplate specifications for consistency with the contract and scope. Again, worth the effort. In another example of how to ‘mobilized the language,’ the end-user functionality stipulation became, “The completed work must meet the technical requirements shown in the design documents or be corrected until the requirements are met and at no additional cost to the owner.”
With care and deliberation, this retooling exercise throughout the project’s specifications is achievable, although prescriptive specifications and proprietary specifications of manufacturers can both pose special challenges. Again, collaborative teamwork can deliver mutually agreeable solutions. In reviewing prescriptive and proprietary sections, owners, designers, preconstruction, and manufacturers’ teams must focus on intent and purpose while allowing creative solutions within next-tier subcontracts and purchase agreements. An otherwise ill-defined prescriptive requirement to the contract will bring little value to the owner and muddies risk transfer. For example, targeted responsibilities can be better detailed with, “Pump warranty assignment will be jointly provided to owner by
contractor design-builder, installer, and supplier.” Arguably, it can also simply state “the supplier and installer” depending on risk allocations.
One of the potential pain points in project delivery is getting all members of the delivery team to recognize that the prime contract drives when conflicting technical requirements arise during design and construction. Design progression must be reconciled with the contract, scope of work, budget, and schedule throughout the project — hence the necessity of collaborative teamwork processes. (This is also a great time to emphasize a well-defined scope of work between owner and design-builder and subsequent flow-downs to the delivery team.)
Performance-based specifications are the better match for collaborative project delivery. Measure use of prescriptive- and proprietary-based specifications carefully and make the effort to ‘mobilize the language’ that apportions risks to the specific entity best able to control it. And always, let’s do great work together!