RFIs and Design Management

We put forward the following scenario to Jason Farnell, Adjudicator and CEDR Accredited Mediator:

“I’m a Property Developer who typically acts as a Main Contractor on projects. I’m interested in understanding more about how the Design Management process is best managed – with a particular emphasis on RFI’s.

We often use the Traditional Procurement Route by employing an Architect to complete the design of the works, typically from planning through to the construction phase .”

We asked Jason the following questions:

• More often than not, when it comes to employing contractors to install the works, the contractors have queries over what they describe as ‘incomplete design’ and therefore they issue RFI’s for further information. Is there any way to reduce the amount of times this occurs by changing the scope of works in the contract with the Architect?
• What is the best way to manage RFI’s contractually between the Architect, ourselves and the Contractors we employ on site?
• Do RFI’s have to be responded to in a certain period of time as a standard and what can be included in the Architect’s Contract and Subcontractors Contract(s) to best manage the process?
• In a number of cases we’ve experienced slow responses (3-4 weeks) from Architects to RFI’s and this has lead to delays and costs from subcontractors and finance prelim costs etc and risk of deposits from properties, how do I manage this and what recourse do I have back to the Architect?
• We’ve experienced cases where the design has missing information and the drawings state “Contractors Design” – does this mean the Architect is not responsible? There is no Contractors Design Portion (CDP) and the Architect has never communicated that we need a CDP portion for subcontractors so in this case, what should we do?

1. More often than not, when it comes to employing contractors to install the works, the contractors have queries over what they describe as ‘incomplete design’ and therefore they issue RFI’s for further information. Is there any way to reduce the amount of times this occurs by changing the scope of works in the contract with the Architect?

My first thought on reading ‘The Situation’ is to clarify what the questions are really about and that we are not confusing the term RFI (“Request for further information”) with the term CVI (“Confirmation of verbal instruction”). For example – “Please confirm the dimension between window ref. x reveal to grid line Y” – this is a straight forward request for clarification and ordinarily should not attract any increase in the cost of the works. Whereas the following: “Please confirm that we are to take down the brick work reveal constructed as drawing 001 and rebuild it as the dimensions shown on ‘Sketch 001bwk’” is almost certainly a confirmation of an instruction for which the contractor will require additional payment.

I would expect that responding to either RFI’s or CVI’s should be included in the Architect’s fees for administering the contract. But this is not I suspect what the question is about. The cost of a change, meaning something that is not just about confirming a dimension but introduces additional work scope, will be borne by the Employer, even where it may be caused by an error on the part of the Architect. An error is not negligence; to err is human.

I have seen terms introduced into designer’s appointment documents seeking to make them responsible for errors in their designs, which lead to variations. However, in practice there is not enough scope in a designer’s fee to accommodate the impact of such changes.

If cost certainty is a critical factor for the Employer, as it almost certainly will be in many instances, then it may be worth considering changing the procurement route to a design and build form. In this scenario, the Architect is responsible for the design in the Employer’s Requirements (“this is what we want”) and the Contractor is responsible for the design in the Contractor’s Proposals including completion or development of the design (“this is how we do it”).

This is not the only way to achieve certainty; a properly managed change management process can achieve the same outcome in a traditional procurement arrangement, but it will require firstly a properly considered and complete design, capable of being constructed, and discipline to manage the process.

2. What is the best way to manage RFI’s contractually between the Architect, ourselves and the Contractors we employ on site?

It would be good practice to include a process in the contract documents for management of both RFIs and CVIs including time scales for responses, distribution lists and model template forms rather than letting an ad-hoc procedure develop. This will make it easier to manage and document change.

3. Do RFI’s have to be responded to in a certain period of time as a standard and what can be included in the Architect’s Contract and Subcontractors Contract(s) to best manage the process?

If we are talking about RFIs then even pure requests for clarifications may lead to additional costs and delays if not responded to before the information is required. For example, if a structural drawing does not show the coverage for the reinforcement bars or their spacing and the information is not provided to enable the bars to be placed as required by the Structural Engineer’s designs, then this may delay a concrete pour with costs of standing time for labour and plant potentially leading to programme delays impacting the project.

In the case of CVIs, standard form contracts usually include clauses dealing with “instructions other than in writing” which provide that where the contractor confirms a verbal instruction this will become an instruction under that contract if it is not challenged or rejected within a set timescale.

4. In a number of cases we’ve experienced slow responses (3-4 weeks) from Architects to RFI’s and this has lead to delays and costs from subcontractors and finance prelim costs etc and risk of deposits from properties, how do I manage this and what recourse do I have back to the Architect?

This is exactly illustrative of my point above. It would be good practice to include a process in the contract documents which includes timescales and to ensure that administration of this process is included in the Architect’s appointment. If the delay is excusable (e.g. if information is awaited from a statutory undertaker; Party wall issues or other matters depending on action by a third party over which the Architect has no control) then there is probably no recourse; but if the failure is because the Architect is inefficient or had under-resourced the project then this may be straying into professional negligence territory (“the performance of an ordinarily competent professional”).

5. We’ve experienced cases where the design has missing information and the drawings state “Contractors Design” – does this mean the Architect is not responsible? There is no Contractors Design Portion (CDP) and the Architect has never communicated that we need a CDP portion for subcontractors so in this case, what should we do?

This sounds like a “word processing” cut and paste error – the Architect is using documents from a previous contract which may have been procured on a design and build basis.

This sort of thing should be picked up much earlier during the project, when the Architect is being briefed and the project procurement route and risk allocation is being determined.

If it is discovered during the currency of the project and the Contractor has not been appointed under a D&B or CDP arrangement then it will not be the Contractor’s responsibility to develop or complete the design unless he is willing to accept an instruction to that effect which would be a variation attracting additional cost.

Provided the Architect’s appointment has been drafted to include the full design then it would be for the Architect to provide the missing design. Failing this the Employer will be left with the decision to determine who is best placed, at the Employer’s cost, to provide the design and then to review why there is a hole in the design in the first place.

Hindsight is cheap, but it is always better to determine the strategy and check that the suite of contract documents reflect this before commencement.

About Paul Heming

Paul was a Quantity Surveyor who gained 10 years experience of managing £200 million worth of flagship UK projects, including 20 Fenchurch Street and Battersea Power Station. In 2015, Paul founded C-Link with the intention of sharing his expertise of managing major projects with the SME market.