Brint Smith

[Today I'd like to introduce my readers to a new contributor to the Bridging blog: Brint Smith, Executive Vice President of Brookwood Group, based in our Atlanta office. Brint has been my colleague for over 30 years, both as an experienced architect and program manager, and is one of the most experienced practitioners of the Bridging method of project delivery. I hope that you will find Brint's contributions as insightful as I so often do. - George Heery, June 10, 2010]

I was recently reading an article in ENR, June 7th edition, entitled “Firms providing alternative project delivery find new markets to cushion the overall downturn”. The article mentions both Design-Build and Construction Manager at Risk as the two alternative delivery methods. In the article, it notes that more and more state legislatures are lifting legal roadblocks to public use of design-build which is opening up new markets for the delivery system. State agencies are recognizing that they had to develop and implement projects quickly in order to qualify for stimulus grants; a schedule which design-build can deliver.

The article goes onto say that the recession has caused many contractors, desperate in this current market for work, to provide low-ball pricing and some Owners are switching to hard bid design-bid-build to take advantage of this rock bottom pricing, and many Owners are changing their choice of project delivery to take advantage of these current market conditions.

Although the article states that “While the initial impulse among Owners was to go back to hard bid for the pricing, most have realized quickly they are better off with a qualitative selection process” it fails to note that the Bridging Method provides an Owner with advantages of both:

1. Providing an Owner a firm fixed price for construction at about half the time of the normal design phase, and
2. Providing the Owner a fully defined quality end product.

So, the Bridging method allows Owners to get to a fixed construction price quickly but at the same time provides an Owner the opportunity to select the Contractor on a qualitative process since contractors are bidding on fully defined design criteria documents.

In using Bridging or any other project delivery method I have always contended that program managers and architects should focus first on the Owner’s posture for purchasing construction.  In my view, virtually all construction Owners fall into one of two different categories:

• Owners who may prudently rely upon relationships in the procurement of construction.

• Owners who may not or should not rely upon relationships for the procurement of construction.

The smart way of going about the procurement of construction for these two different types of Owners is as different from one another as day is from night.

Owners who may be able to rely upon relationships in the procurement of construction would be owners such as major real estate developers (in normal economic times) who are constantly in the market for new projects of a similar nature and from whom their architects, engineers and contractors can reasonably expect a good bit of repeat business if those consultants and contractors always provide a very good, trouble free service.  This category also includes such user owners as companies like Wal-Mart who are constantly building new facilities for their company businesses.

Owners who should not, or may not, rely upon relationships in the procurement of construction includes virtually all public sector owners and those private sector owners  that are not regularly in the market for new construction of the same type in the same market area.   Of course any owner’s rep, architect, engineer, program manager or the Owner’s facilities planning/management executives would be unwise not to have good and friendly working relationships with all entities in the construction program.  However, there is a big difference between a pleasant business relationship between the different players in a construction program and the owner allowing itself to be put into a position in which it is dependent upon relationships to obtain fair prices and agreements that are fair and suitable to the owner contractually.

It is this second group of owners that the Bridging method was developed for originally. Yet, today some of the first types of owners who are sort of “belt and suspenders” oriented are also now embracing Bridging.

Back in 1974, I wrote my first book “Time, Cost & Architecture” (McGraw-Hill 1975) in which I described a way to achieve more effective time/cost control through better design and construction management methods.

Several days ago my colleague Ennis Parker sent out a message informing people about the publication of my second book “Bridging: A Construction Project Delivery Method” (available from Lulu.com), which some have stated to be the logical “evolution” of the concepts I set forth in my first book.

In the days following Ennis’ announcement we have received a considerable amount of interest in both the new book and this blog, and one of the more amusing responses was “What took George so long?” – a great question!

In retrospect, I realize that I’ve been writing this book for nearly twenty years; a great deal of the text inside the new book has been gathered from material that I prepared for my staff and other architects and program managers to use when carrying out projects under Bridging.

I feel that it’s become imperative for me to share these guides with other professionals because while the use of Bridging is becoming more and more popular, I have observed several instances in which owners and architects have failed to achieve the benefits available through Bridging simply because they had not followed the correct procedures and methodologies.

Instances in which professionals fail to properly execute Bridging projects troubles me and I felt compelled to “protect” the tenets of Bridging by creating an authoritative reference, hopefully dispelling any lingering misinformation.

Two of the most common errors? Using improperly prepared Bridging Contract Documents (“Bidding documents”), and the premature loss of leverage for the Owner.

Mistake #1 : Using Improperly Prepared Bridging Contract Documents

In Bridging, the drawings and specifications that the Owner’s Design Consultant (sometimes referred to as the “Bridging Architect” of the “Design Architect”) are prepared as major parts of the Bridging Contract Documents (“BCDs” or “bid documents”) for a design-build form of contract.  These drawings and specifications are referred to as the Design Guide Illustrations (“DGIs”) and the Owner’s Minimum Requirements (“OMR”).

This design work and document preparation occurs at the same time in the design sequence as would the preparation of traditional Design Development documents if you were executing the project using Design-Bid-Build or any other project delivery method. (see diagram below)

Yet, while it’s true that the preparation of the DGIs and the OMR requires about the same level of effort in preparation as would the traditional DD documents, the DGIs and the OMR are very different indeed from DD drawings and specifications.  This difference makes them highly enforceable in the contract between the Owner and the Contractor under a design-build form of contract, which is certainly not the case with DD documents.

Unfortunately, there have been cases in which designers did not understand the crucial distinction between Bridging and the traditional method and attempted to use traditional “DD” documents as the basis for receiving the “bid” (or contract price negotiation).  Clearly, not understanding this and not following proper procedure for the preparation of the DGIs and the OMR are a very serious mistake because properly prepared DGIs and OMR are highly enforceable used in conjunction with a Bridging version of a Design-Build Contract, while traditional Design Development documents are not very enforceable.

Mistake #2 : Loss of Leverage

After the two-step design-build form of contract is awarded to the successful proposing Contractor (which has it own architects and engineers as subs or members of its organization) only the preparation of the final Construction Documents is first authorized.

Following proper Bridging procedures, upon completion of the CDs by the Contractor’s AE and payment for that level of work is authorized by the Owner’s Design Consultant and/or Program Manager, the Owner has the right to terminate the contract without cause.  This right retains important leverage for the Owner, which, by the way, is the same point in the project sequence as the Owner would have in a traditional design-bid-build or CM-at-Risk project and is much later in the project than the Owner would typically loose it leverage in a typical Design-Build contract.

CONCLUDING WITH THE 5TH AND 6TH PHASES OF CARRYING OUT A PROJECT BY THE BRIDGING METHOD.

Phase 5. At this point the Owner has the right to terminate the contract without cause by payment of the amount due to the contractor for completion of the CD’s. If the Owner chooses to proceed, the Contractor authorizes construction. Note that (after the proposal has been submitted by the Contractor in Phase 3) the Contractor has no opportunity to adjust the price unless the Owner has approved in writing with a Change Order.

Phase 6. Throughout the construction, the ODC, along with the Owner’s program manager and any other CA specialists the Owner has employed, will observe the work in detail in exactly the same way that the Architect would under the traditional Design-Bid-Build method except the Contractor’s AE (not the ODC) will be responsible for checking all shop drawings, which will be passed on to the ODC with a previously stipulated “grace period”. In turn, the ODC can point out any errors that may be observed, though the ODC is not contractually obligated to carry out a detailed technical review, and may reject and/or require re-submittals. The ODC may then simply let the grace period pass. If the ODC sees fit, the Contractor may be released from a particular grace period requirement (if plausible) in order to be as helpful to the Contractor as possible without endangering the interests of the Owner. A “frozen” set of final BIM output would be provided to the Owner through the ODC along with record up-dated contract documents.

All progress payments will be approved by the ODC or a combination of the ODC and the Owner’s program manager.

As it would be a conflict-of-interests in a typical Design-Build project for the Contractor’s AE to carry out construction administrations (“CA”) services on behalf of the Owner, so would it be a conflict-of-interests for the for the Contractor’s AE to carry out CA services for the Owner in a project being carried out by the Bridging method. The only exception, as stated above, would be the checking of the shop drawings by the Contractor’s AE. However, as also pointed out above, after the Contractor’s AE checks each set of shop drawings there is then a grace period during which the ODC may carry out additional reviews. During the grace period the ODC and Program Manager must have the right to reject the shop drawings and have them re-submitted after corrections are made, again with another grace period. (Additional grace periods are also required for shop drawings that are resubmitted due to errors or misinterpretations by the Contractor’s AE in their preparation. However, these additional grace periods would not be the basis for an adjustment in the time of completion of the construction unless the Owner, ODC or the Program Manager had required that changes be made in the shop drawings resulted from an Owner initiated change after the original shop drawings had been completed.)

Even though the only construction phase service contractually required by the Owner of the Contractor’s AE is the checking of the shop drawings, the Contractor may elect to have its AE provide any number of other services to the Contractor during construction. Typically, those services might be for the Contractor’s AE to act as a part of the Contractor’s staff and consultants in the prosecution of the project. Oftentimes the Contractor will choose to engage its AE to assist in quality control or other activities during construction. That will often improve the overall prosecution of the project. However, that decision will have been a part of the agreement between the Contractor and the Contractor’s AE, presumably undertaken as a result of an internal decision by the Contractor. In any case, however, this cost to the Contractor shall not be a cost that may be passed on to the Owner, ODC or Program Manager except to the extent it may have affected the Contractor’s original contract price.

Phase 4. During the preparation of the Construction Documents (“CD”) phase the Contractor’s AE completes all detailed engineering design and specifications. Any remaining details of the architectural and site development design are completed in accordance with all applicable codes and fully coordinated these documents. The ODC reviews these documents for full and complete compliance with the BCDs and may reject them if not in conformance. Sometimes, the Contractor’s AE will in fact find that something in the BCDs is not feasible or not in compliance with applicable codes. In that case, the ODC must be reasonable in cooperating to find a solution, but the Contractor (meaning the Contractor and its AE) may not change anything without the ODC’s approval for the change.

On most projects, it is recommended that BIM be employed. Access to BIM should be made fully available to the Contractor’s AE, though with the ODC still having access to all output.

The ODC and Contractor’s AE will probably develop a productive working relationship. However, the ODC should never give a written or verbal approval of these documents, even once they are satisfactorily completed. This is because the Contractor’s AE is either a sub-consultant or employee(s) of the Contractor. In other sub-contracts it is neither wise nor typical for the Owner’s representative to provide final approval on any sub-contract until final acceptance has been given for the full project. Further, there should be no agreement in any of the related documents that directly or indirectly places upon the Owner, the ODC or the Owner’s program manager the requirement for a “detailed technical check and approval” of these documents. Instead, when either a stated grace period expires or the Contractor is either terminated (which is an important right for the Owner) or is authorized to go forward with construction. At that point a progress payment is due to the Contractor (whether the project proceeds or not) for the completion of the Construction Documents. The amount of the payments will be a stipulated amount or a percentage of the Base Bid set by the ODC in the original Form of Proposal. Typically that will run from around 2-4%, varying with the project.

Even after the Construction Documents have been completed and the progress payment for their completion made, the BCDs will remain as the prevailing contract documents with their being supplemented by the completed Construction Documents. Thus, from that point onward, the Owner is entitled to everything called for in either the BCDs or the Construction Documents. If a conflict between the documents is later discovered, the BCDs prevail unless the Owner and the Owner’s ODC approve otherwise in writing. Upon the authorization to the Contractor to proceed in the next step, the BIM output at this point will be “frozen” so that it may remain as a further reference to the applicable contract documents. From this point forward, the Contractor as well as the Contractor’s AE and Subs will be the operators of the BIM system, but access will be available at anytime by the Owner, the ODC and the Owner’s program manager.

PHASE 3 : THE RECEIPT OF BIDS FOR OR NEGOTIATION OF THE DESIGN-BUILD FORM OF CONTRACT

Phase 3. With the BCDs as the “bidding” documents (see Article 4), the Owner can obtain competitive bids or negotiate with a single selected Contractor for a design-build form of construction contract. This contract price is fully enforceable, with no opportunity for future adjustment in price or schedule unless there is a subsequent change in scope or design that is requested by the Owner. If there are any such scope changes requested by the Owner then, with Bridging, the Owner remains in a stronger position to negotiate fair and favorable pricing for such scope changes.

This Bridging contract is not and should not be thought of as a typical design-build agreement. One reason is that the architectural design is in large part completed by this point in the process. Instead, it is a contract under which the Contractor takes the single responsibility for the construction as well as for the final Construction Documents (CDs) being complete, accurate and coordinated in all respects as well as being in compliance with all codes and laws as well as with the BCDs. At this point, and after any necessary negotiations or clarifications, the Owner may authorize the Contractor to proceed with the preparation of the Construction Documents (to be carried out by the Contractor’s AE sub or employees).