Agreement and Conditions of the Contract
An Owner-Contractor Agreement and General Conditions of the Contract are used on almost all significant construction contracts. These specify the fundamental terms of the contract, which are not repeated in the specifications. The most commonly used forms of Agreement or General Conditions are preprinted, copyrighted, standard forms published by construction industry associations. Agreements and General Conditions are published as either a single document or as two documents in a coordinated set. When published as a set, both documents must be used for complete contractual terms. Many Owners have their own documents they require design professionals to include in the contract documents.
Although specifiers are not usually responsible for preparing these documents, they must know what is in them, as the terms of both the Agreement and the General Conditions could affect the content or terms embodied in the specifications. In particular, preparing the specifications assuming the wrong contractual relationships could have significant cost consequences for the Owner. As in many other aspects of life, making assumptions here is often dangerous.
If the contract documents will be based on a standard form or forms, it's usually a simple matter to get a copy of it. If the Owner makes modifications to them, you'll need to get a copy of the modifications from the Owner or his legal counsel — these are usually called "Supplementary Conditions" but Owners have a wide variety of names for them. Sometimes design professionals maintain custom General and/or Supplementary Conditions for repeat Owners, but design professionals are usually advised to seek legal counsel before initiating any modifications.
Assembling the Agreement and Conditions of the Contract
Even though specifiers are not responsible for choosing standard forms or for preparing modifications to them, specifiers are very often required to assemble these documents into the Project Manual. Unless you find that someone else will be doing that, you will need to get information from the Owner or his legal counsel on what to do.
- First find out whether you are expected to do this.
- If so, you need to get specific, detailed information on what to do.
- If not, you still need to get a copy. If you can't, try to find out what the fundamental terms of the contract are, so you can coordinate your specs. (There is really no reason an Owner should refuse to provide you a copy — except that his lawyers might not have finished it yet.)
The best way to get the information you need is to use AIA Document G612 - Owner's Instructions to the Architect Regarding the Construction Contract. This is a detailed checklist covering general project delivery issues, construction administration, form of contracts, bidding requirements, owner-furnished items, separate contracts, payments to Contractor, retainage, and insurance.
The normal way to use AIA G612 is to send it to the Owner as a formal request for information. A sample cover letter is included, which is itself instructive. However, AIA G612 is such a good checklist that you should use it whether you are assembling the Agreement and Conditions of the Contract documents or not, to reassure yourself that you have asked all the relevant questions.
Coordinating the Specifications with the Conditions of the Contract
SpecLink's master text is carefully written to avoid the necessity of tailoring the language to any particular general conditions. However, it does assume that the general conditions will be more or less like AIA A201 or EJCDC C-700 (see below). The basic terms are:
- The Owner has a contract with a single prime Contractor.
- The Design Professional will be providing construction administration that includes site observation and approval of Applications for Payment.
If your project conditions or contractual relationships differ, changes may be necessary to the specification text. Multiple prime contracts will not normally require much more than an enumeration of the contracts and a description of their scope.
Note: The above discussion refers to the SpecLink construction specifications. The Design Criteria specifications are entirely different; for Design-Build, the procurement and contracting documents assume a fixed-price, best value competitively bid contract with terms based on DBIA documents.