BID

Q: I have heard that we only need to put our seal and signature on permit drawings, not for bid or issued for construction drawings. When do I put seals on? Do engineers have the same rules?

A: Drawings issued for permit, bid or construction should all have the architect's seal and signature and your sub-consultant engineers should do the same. Architects must – (Architects Act Reg. 27,  sec. 42. 21.)  ".. affix his or her seal and signature … to every design ... submitted as part of an application for a building permit or is issued for the construction, enlargement or alteration of a building,…." . Engineers have similar requirements - (Engineers Act Reg. 941, sec 53) though their  clause states "final drawing…. before it is issued". Also note that Engineers are allowed to seal drawings prepared or “checked” by the member whereas Architects cannot seal a drawing that has been only checked.  

Q: Is there a difference between tender and bid? I thought tender was when we send the drawings out and the bid is what contractors send back - is that correct?

CAD DRAWINGS

Q: The client said that I have to give my CAD files to the contractor or else there will be an extra charge. The Client says he has paid us, he should own what he has paid for,  so what is the problem?

A: This is a frequent issue and a question with many nuances. Copyright and ownership of the architects drawings belongs to and remains with the architect unless given away via contract or a written license release. The client has a right to use the drawings for the purpose intended (e.g. the client’s contractor uses as reference to build). The contractor should not expect to be given CAD drawings (dwg. files) unless it is stated in the written specs or bid documents and thus the contractor should have no claim for an extra. 

The RAIC Practice Builder – The Exchange and Transfer of Electronic Documents – 2010, notes: “As leaders in the design and construction industry it is important that Architects cooperate with clients and contractors in a manner that promotes efficiency, innovation and a reduction in the amount of paper consumed.   Architects have the following concerns regarding the distribution of electronic files:

• The need to ensure protection of their intellectual property and copyright;
• the need to ensure that there is no additional liability or increased risk to the architect when distributing electronic documents; and
• the provision of digital or electronic documents is not effortless and there is a need for appropriate compensation for providing electronic files.

Q: Where do I get the copyright letter about releasing CAD drawings?

A: The RAIC Canadian Handbook of Practice (CHOP) has an Appendix A - Digital Copyright and Architects,  following Chapter 2.3.7 that contains excellent information on the issues pertaining to copyright. There is a sample license agreement and disclaimers related to the release of electronic drawings. You are advised to edit the License Agreement to suit your situation and receive the signed form back before releasing drawings to anyone.  Refer also to the RAIC Practice Builder – The Exchange and Transfer of Electronic Documents – 2010. (no cost for RAIC members)

HOLDBACK

Q: I have a fairly large project that was Substantially Performed several months ago with a large value of holdback on the completion work. The contractor has sent an invoice for release of holdback for several trades that are 99+% complete – such as drywall, doors and windows. There are still some deficiencies on these trades – can I release the holdback for them?

A: No – once Substantial Performance has been reached, the remaining holdback is only released at completion, not incrementally. Release of holdback for a sub-contract is allowed, but is not mandatory, and only if the subcontract is totally completed and is so certified using a CLA Form 7 (CERTIFICATE OF COMPLETION OF SUBCONTRACT). 

For additional information and copies of CLA Forms 6 & Form 7 refer to: Practice Tip PT.10 .

Q: The contractor has applied for release of holdback for the first phase of a project – can we do that?

A: Some provinces have Lien Acts that allow for phased release of holdback; the Construction Lien Act (CLA) in Ontario does not. There are only two points on a single project to release holdback: 1) at Substantial Performance, 2) at completion. Separately from the overall project, release of holdback for a sub-contract is allowed, but is not mandatory, if the subcontract is totally completed and is so certified using a CLA Form 7. If a first "phase" is part of a larger construction contract it is still treated as a single contract for lien purposes. 

For additional information and copies of CLA Form 6 & Form 7 refer to: Practice Tip PT.10 .

SHOP DRAWING

Q: We specify that shop dwgs for special railings and stairs are stamped by an Ontario  P Eng. The Contractor says that they will have the shop drawings stamped after our final review of the shop drawings. Is that right ?

Reference: The Engineers Act - R.R.O. 1990, Reg. 941, s. 53; O. Reg. 13/03, s. 16. 

PAYMENT

Q: I received a form from my client’s bank – it looks like a Certificate for Payment but has some other clauses in it that seem like maybe I shouldn’t be signing it – like - I certify the value to complete the work is ….  and - All work done to date meets all applicable laws, codes, by-laws. Should I sign this?

A: No - Although these forms may look reasonable or at least might if you changed a couple of words they are extending your liability beyond what is reasonable and to parties with whom you do not have any duty to. Lenders, surety and bonding companies will look to their document to rely upon in the event there are any problems such as contractor default or bankruptcy.

The standard forms which architects use have suitable wording such as - based on my periodic visits, to the best of my professional opinion. They do not state that you certify that construction meets all laws, or that you can attest to how much it will cost to complete, for example if another contractor had to be brought in.  

Refer to  Practice Tip PT.17.

Q: Can I issue a Certificate for Payment that reduces the value from the last month for a particular trade?

A: Yes. Providing of course there is a reasonable reason to do so.  A Certificate for Payment is a statement by the architect regarding the percentage of the total project that has been attained. The schedule of values done by the contractor is used as reference by the reviewing consultants. There may be an occasion that the trade, contractor and consultant have each misjudged the value of a particular line item of work, or it could be found that some work was later found to incorporate incorrect material. Although a general contractor or a trade may object, standard construction contracts do not prohibit this.

Q: Can a certificate of payment be issued without a statutory declaration (subsequent to the first certificate)?

A: The answer is that it depends on what the project manual specifications require in the construction contract between the owner and the contractor. 

Standard construction contracts, such as CCDC 2 (ref. GC 5.2 and 5.3), do not require a ‘Statutory Declaration’ as part of the regular monthly progress payments, but rather only require a Stat Dec be submitted along with the application for payment of the 10% lien holdback following Substantial Performance (ref. CCDC 2, GC 5.5.1.2). The contractor declares in the statutory declaration (CCDC 9A) that they have distributed monies received from the owner to pay others doing work on the project. This protects the owner in the event of a lien claim from a 3rd party sub-contractor or supplier because they were not paid by the general contractor. To 'solemnly declare' is a serious thing in legal terms; as the CCDC 9A form states, "The making of a false or fraudulent declaration is a contravention of the Criminal Code of Canada, and could carry, upon conviction, penalties including fines or imprisonment." 

If the contract requires Stat Decs every month, it is not something that a construction contract administrator should take lightly or waive. The same serious consideration should be given to requirements that may be specified for WSIB clearance forms every month. 

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Other comments from CCAC members, based on personal experiences:    

• The un-amended CCDC contracts make no provision for not issuing a certificate because a Stat Dec was not submitted except after substantial performance. We will issue a Certificate for Payment without a Statutory Declaration or with a Stat Dec that has not been properly filled in, or has not had the CCDC seal applied to it (after having tried to obtain one from the Contractor), but based on the requirements of the Supplementary Conditions of the contract, we note the omission/deficiency/copyright issues in our covering letter to the Owner. 
• We were advised by the of the CCDC that their Stat Dec was not intended to, nor should it be used if the contractor has not yet received payment based on the first Certificate for Payment.

• Although the CCDC may not reference the Stat Decs, the financing agreement with the Client may require it.  It may be prudent to either request information re such agreements before issuing the second certificate or stating something like… “ No statutory declaration has been submitted with this invoice.  The client should ensure whether such documentation is required by its lender before making payment.”
• In our case, we would send a cover letter along with our Certificate for Payment to the client, advising of the particulars of the Certificate and identifying if no Stat Dec was included (and indicating the contractor’s explanation as to why it was not provided).  We would also copy this to the contractor so as to ensure transparency between the contracting parties (client and contractor).

• MEETINGS

  Q: Who runs the construction meetings and issues minutes - the architect or the contractor?

  A:See CHOP Volume two, Chapter 2.3.11 where it states:

  “Either the architect or the general contractor prepares the minutes, depending on the architect’s choice and the general requirements of the specifications.”

  On most larger projects, the contractor runs and prepares minutes of construction site meetings.  It is best to specify at the bidding stage the detailed arrangements and requirements of the contractor for site meetings. On occasions the architect minutes the site meetings. The goal is to have decisions and other matters recorded and properly distributed to the appropriate individuals for information and action.

  R.F.I's

  Q: How do we stop all the minor RFI’s and doesn’t the contractor just do these to set up a delay claim?

  A: Answering questions from contractors is part of the architect’s role when doing construction contract administration. On occasion some contractors, find it easier to send in an RFI than to hunt in the documents further. Although lack of response to a contractors questions could be used as part of a claim, most contractors and trades simply want to build a good product the same way you want to have designed one. The process for sending in RFI’s has become extremely easy with e-mail, architects can become just as organized in responding to them.  The RFI process needs proper management by both contractors and consultants in order for it to be an effective tool to assist construction. 

  CHOP, Volume 2, Chapter 2.3.10,  Appendix A - Requests for Information has excellent information on managing the RFI process.   

  MISC

  Q: I found that work is not up to the standard that we expected – but the owner says he is Okay with it; what should I do?

  A: At minimum document the facts. If it is important you may need to affirm your position. The specifications are where quality standards get defined. The owner may not understand the details and may simply be trying to avoid a conflict or confrontation, particularly on residential renovations projects where the owner is in close contact with the workers.  It may be that the contractor or trade workers agree with you and would prefer to rectify poor workmanship, than to leave it. More communication may be the way to deal with this issue. If necessary you may need to write to the owner, that it is against your judgement but that you are prepared to accept the standard of the work completed but that you are on record as not being satisfied with the standard.

  Q: Does the architect supervise the work of the builder and other contractors?

  A: No. Supervise means to direct - as in tell workers what and how to do the work. Contractors build – architects watch (review). Contractors supervise workers on site; architects do that for their work in their offices. The standard construction contract CCDC 2 - 2008  GC 3.1.1 states “The Contractor shall have total control of the Work and shall effectively direct and supervise the Work so as to ensure conformity with the Contract Documents".

  FORMS

  Q: Where do I get standard forms like General Review Reports, Certificate for Payment or Certificate for Substantial Performance?A: Standard forms used by architects are authored, published and maintained by several different organizations primarily the Architectural Canada  (RAIC), the Canadian Construction Documents Committee (CCDC)  and the OAA. Refer to OAA Practice Support Standard Forms.

  SUBSTANTIAL COMPLETION

  Q: Can an architect issue a Certificate of Substantial Performance jointly with a Payment Certifier? Where the architect would certify that part a) "the improvement to be made or a substantial pert thereof is ready for use or is being used for the purposes intended". The Payment Certifier would certify part b) cost to complete. 

  A: No. The CLA is clear that either the Payment Certifier or the owner and contractor jointly shall issue the certificate of Substantial Performance.

  Although the CCDC may not reference the Stat Decs, the financing agreement with the Client may require it.  It may be prudent to either request information re such agreements before issuing the second certificate or stating something like… “ No statutory declaration has been submitted with this invoice.  The client should ensure whether such documentation is required by its lender before making payment.”

  SEAL

  Q: I have heard that we only need to put our seal and signature on permit drawings, not for bid or issued for construction drawings. When do I put seals on? Do engineers have the same rules?

  A: Drawings issued for permit, bid or construction should all have the architect's seal and signature and your sub-consultant engineers should do the same. Architects must – (Architects Act Reg. 27,  sec. 42. 21.)  ".. affix his or her seal and signature … to every design ... submitted as part of an application for a building permit or is issued for the construction, enlargement or alteration of a building,…." . Engineers have similar requirements - (Engineers Act Reg. 941, sec 53) though their  clause states "final drawing…. before it is issued". Also note that Engineers are allowed to seal drawings prepared or “checked” by the member whereas Architects cannot seal a drawing that has been only checked.  Refer to  Regulatory Notice R.1 for more details on when and when not to seal.