A Publication of WTVP

Some would have you believe it, but Illinois courts don’t.

It’s not unusual for the architect to be given the authority to interpret the contract documents. In matters of style or art, his decision may be final.

But what about the contract documents? Many contracts require that the architect side neither with the owner, construction manager, contractor, nor sub-contractor, but that she use the powers under the contract to enforce its faithful performance. Illinois case law has held for many years that the architect’s decision isn’t enforceable if unreasonable, arbitrary, or fraudulent. Certainly, architects won’t possess the power to pass on their own errors and omissions. For example, courts won’t allow an architect to require a sub-contractor to perform extra work and furnish materials not encompassed in the architect’s own deficient plans and specifications without compensation.

In most cases where there’s a need for interpretation of a contractual term or provision, the contractor probably could devise a satisfactory solution and avoid disruption of construction progress. But this course of action carries the risk of later disapproval if the contractor’s expedient solution doesn’t match the architect’s thinking.

When the contractor encounters a situation that requires interpretation, the architect should be notified, preferably in writing. The architect’s interpretations also should be in writing or in the form of drawings. Informal oral notifications and interpretations later should be confirmed in writing to the contractor, with the same information sent to the owner.

An architect’s interpretation or clarification can’t be used as a device to impose a higher quality or standard of workmanship or materials than originally was specified. This would constitute an abuse of the architect’s contractual duty. If, in the opinion of the contractor, the interpretation involves a change in the construction cost or time, a change order should be prepared for the owner’s and contractor’s concurrence and approval.

Contractors, subcontractors, and suppliers can’t always perceive the exact meaning or application of the construction drawings and specifications that have been furnished for the project. This isn’t necessarily because they lack experience or are incapable of reading technical drawings and specifications. Often, the field condition isn’t exactly as the architect’s designer or drafter had visualized, so a field adaptation or adjustment must be devised.

Sometimes, ambiguity or conflict in the documents must be clarified or resolved, and erroneous or unrealistic information or omission must be explained. Occasionally, the architect will see where minor adjustments can improve the utility or refine the design objective.

However, there are times when the interpretation focuses on the appropriate type of material to be used during the construction phase. An architect’s interpretation of a clause in the contract could cost a contractor or subcontractor a considerable amount of money that may or may not have been accounted for in the original bid on the project. In this case, litigation often results due to the significant financial stake involved.

When an architect is making what’s intended to be a minor change, it’s advisable to confirm with the contractor and subcontractor beforehand that there is, in actuality, no adjustment to be made in the contract price or time. It also would be advisable to determine that the owner isn’t opposed.

Since the American Institute of Architects’ contract provisions require architect’s orders for minor changes to be in writing, it would take a mere moment to convey to the owner, contractor, and subcontractor the change. Another practical possibility would be to process it as a “no cost-no time” change order so it’ll bear the signed acquiescence of owner and contractor.

The minor change authority, when properly exercised, can be very convenient in making subtle adjustments to account for differing field conditions and to execute advantageous design refinements.

Strict conformance with the procedure also protects against later claims by the contractor for additional compensation or construction time or by the owner that the change wasn’t approved. IBI