• Be Aware of Changes in EJCDC Construction Documents
  • October 18, 2007 | Author: Ralph A. Finizio
  • Law Firm: Pepper Hamilton LLP - Pittsburgh Office
  • The Engineers Joint Contract Documents Committee (EJCDC) will soon issue revised editions of its construction series of standard contract documents (2007 Series). These will be the first revisions since the 2002 Series.

    The stated purpose of the revisions is to “maintain the solid base of forms, terms and conditions found in prior editions, while making carefully considered changes that enhance clarity and reflect current construction contracting practices.” Owners and contractors should take note of the revisions, as they add to or shift certain of the responsibilities of the parties involved in a project.

    The construction series consists of 21 documents. The principal documents are the Standard General Conditions (EJCDC C-700), Suggested Owner-Contractor Agreement Forms (EJCDC C520, Stipulated price; EJCDC C-525, Cost-Plus) and Suggested Instructions to Bidders (EJCDC C-200). The principal changes in the 2007 Series are in the following areas: site conditions, safety, reporting discrepancies in design, and certification against corrupt and collusive practices.

    Site Conditions

    The 2007 Series revisions represent a major change in the roles of the owner and contractor in investigating site conditions. The Suggested Instructions to Bidders, Suggested Bid Form, and Suggested Owner-Contractor Agreement Forms are all revised to include a contractor duty to consider its actual knowledge of site conditions and information currently known about local conditions. This is a marked change from the previous series, in which a contractor only had to consider site information furnished by owner. This is a common-sense change to the series, and an acknowledgement of the contractor’s own potential knowledge of a site and contractor’s duty to not turn a blind eye towards known local conditions.

    This revision will have particular application in regions known for high water table or rock concentration. The EJCDC position remains, however, that owners should not typically require bidders to conduct their own subsurface testing. This position is supported with wording revisions in the Suggested Instructions to Bidders. Additionally, under the 2007 Series revisions to the Standard General Conditions and related documents, an owner now must provide the contractor with all known reports and drawings of site conditions. This is another marked change in duties from the previous series, in which an owner merely had to provide the reports and drawings relied on by the design engineer.

    Safety

    The revisions impose a heightened level of responsibility on the contractor for safety monitoring and compliance. Under the previous series, a contractor was responsible for “initiating, maintaining and supervising all safety programs in connection with the work.” The 2007 revisions to EJCDC’s Standard General Conditions adds an obligation to “inform the Owner and its Engineer of specific safety requirements that must be followed at the site and [the corresponding] obligation of Owner and Engineer to comply with such requirements.” The 2007 Series also requires the contractor to comply with all applicable owner safety programs and makes clear that the site safety responsibilities that are contractually allocated to the contractor do not reduce the safety duties of any subcontractors at the site.

    Reporting Discrepancies in Design

    Under the previous series, a contractor was not potentially liable to an owner for “failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor knew or reasonably should have known” of the discrepancy. The 2007 Series revisions to the Standard General Conditions lower the contractor’s reporting duty by specifically limiting a contractor’s reporting duty to errors or conflicts in the specifications and drawings about which the contractor had actual knowledge.

    Certification against Corrupt and Collusive Practices

    In an important addition to the series, the revisions to the Suggested Bid Form (EJCDC C-410) and Owner-Contractor Agreement Forms require bidders and contractors to certify that they have not engaged in corrupt, fraudulent, collusive or coercive practices in obtaining the contract. This addition was made at the request of the American Society of Civil Engineers (one of EJCDC’s four sponsoring organizations).

    Miscellaneous Revisions

    The Suggested Bid Form (EJCDC C-410) has been made more user-friendly by eliminating the requirement that prices be stated in words – as of 2007, numeric figures are sufficient. Additionally, the Payment Application form (EJCDC C-620) is for the first time provided in a spreadsheet format, allowing for ease of use and accurate calculations of totals.

    EJCDC also has expanded and revised the numerous notes to users throughout the text of various 2007 Series documents, including the Suggested Instructions to Bidders, Suggested Bid Form, Suggested Owner-Contractor Agreement Forms, and Guide to the Preparation of Supplementary Conditions (EJCDC C-800). These notes are often helpful in understanding series documents, and making revisions to series documents based upon the project context. Additionally, EJCDC provides an extensive commentary on use of the 2007 revised series documents in its Narrative Guide to the 2007 Construction Documents (EJCDC C-001).

    The 2007 Series revisions clarify several points within the prior series, and more accurately reflect current construction contracting practice. Owners, contractors and engineers should be aware of the changes and draft and/or negotiate contracts accordingly.