This blog was contributed by guest blogger Kevin O’Beirne, PE (NY, PA)
Construction “Contract Documents” are the written documents that define the roles, responsibilities, and “Work” under the construction Contract, and are legally-binding on the parties (Owner and Contractor). The individual documents that constitute the construction “Contract Documents” are defined (in both EJCDC and AIA standard documents) in the Owner-Contractor Agreement (in EJCDC® C-520 (2013), see Article 9).
It is very important for the person preparing the contracting requirements and other documents in “Division 00” to fully understand the implications of what does, and does not, constitute the “Contract Documents”; failure to properly designate the Contract Documents can be a significant contractual flaw.
Following the contract-writing axiom espoused by the Construction Specifications Institute (CSI), “say it once and in the right place”, what constitutes the Contract Documents should be indicated at only one location (preferably the Owner-Contractor Agreement). To increase the potential for consistent interpretation, the listing of the Contract Documents should be complete and unambiguous, and should not include any documents that rightfully should not be Contract Documents.
Common examples of vagueness in this regard include phrases such as, “the Contract Documents…include all exhibits, attachments, supplements, and all other such documents used as contract modifications”, and the common practice of including appendices in the Project Manual but omitting such appendices from the listing of what constitutes the Contract Documents. Such vagueness should be avoided.
EJCDC® C-700, Standard General Conditions of the Construction Contract (2013), includes the following definitions at Paragraph 1.01.A—note the differences in the definitions of “Bidding Documents” and “Contract Documents”. Also note how the definition of “Contract Documents” merely refers to the Agreement, preserving the “say it once and in the right place” principle:
Contract Documents—Those items so designated in the Agreement, and which together comprise the Contract.
Bidding Documents—The Bidding Requirements, the proposed Contract Documents, and all Addenda.
Bidding Requirements—The advertisement or invitation to bid, Instructions to Bidders, Bid Bond or other Bid security, if any, the Bid Form, and the Bid with any attachments.
Drawings—The part of the Contract that graphically shows the scope, extent, and character of the Work to be performed by Contractor.
Specifications—The part of the Contract that consists of written requirements for materials, equipment, systems, standards, and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable to the Work.
Note in the following definition from EJCDC® C-700 that “Shop Drawings” are specifically not part of the Contract Documents:
Shop Drawings—All drawings, diagrams, illustrations, schedules, and other data or information that are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. Shop Drawings, whether approved or not, are not Drawings and are not Contract Documents.
Another useful definition from EJCDC® C-700 is that of “Project Manual”:
Project Manual—The written documents prepared for, or made available for, procuring and constructing the Work, including but not limited to the Bidding Documents or other construction procurement documents, geotechnical and existing conditions information, the Agreement, bond forms, General Conditions, Supplementary Conditions, and Specifications. The contents of the Project Manual may be bound in one or more volumes.
AIA standard documents include definitions of the above terms very similar to EJCDC’s (see AIA® A101TM , AIA® A201TM, and AIA® A701TM). However, AIA documents indicate what constitutes the “Contract Documents” in both the Agreement and in the General Conditions, creating the potential for conflicting requirements.
To summarize, be cognizant of, and properly draft the provisions regarding, what constitutes the Contract Documents.