When is a "Change" a Change?

Name something you never want to get and if you get it, you never want to loose: a contract dispute. In my experience, resolving unexpected and latent conditions that impact the project scope are the most common disputes we face as owners, designers, and builders. And they are not always "physical conditions"; often they are "procedural" in nature...what one entity thought the other would do during the long process of designing and building a project.

YouTube: "Eliminate Change-Orders"

When it comes to design-build delivery, changes and change-orders seem to often come as a shock; more so than design-bid-build. Why? For several reasons I think. We've grown use to change-orders in design-bid-build delivery. So much so that it seems the most important DBB contract language concerns what everyone does when things go wrong: dispute resolution and change-order clauses. Most owners carry a "change-order" contingency in their budgets based on a historic percentage...a HISTORIC percentage (talk about a predictable unpredictable).

Design-build is not supposed to have change-orders, it is supposed to transfer risk and produce more reliable results for the owner (and the design-builder too for that mater). But the fact is change-orders can still be common in this most promising form of project delivery due to predictable and preventable inadequacies within design-build contracts. The two most common predictable and preventable inadequacies I come across when conducting RFP and Contract reviews concern the "scope definition" by the owner and the "design management process" employeed by the design-builder. Let's examine each briefly.

Most owners (95% plus I'd say) define scope using "bridging documents"; intrinsically and intentionally incomplete documents. To these documents, the owner commonly adds prescriptive specifications based on the 16 Division CSI MasterFormat: the absolute wrong tool to define measurable expectations in conjunction with an "incomplete" set of construction documents.  If you, as the owner, must control the design via "bridging documents", then ALWAYS use performance specifications written in the 7 Division CSI UniFormat...that's why CSI created that particular format!

If you are the design-builder, don't "conclude" the design and incorporate it (as an inalterable and fixed solution) too soon in the design-build process. Surprises and evolving conditions may require you to modify the solution (the design) in order to meet your budget and schedule demands, and ultimately satisfy the contract's scope demands (which you should insist are performance-based). Here is a short film that demonstrates the process and results.

Summary:

Owners- define 100% of the scope using either 100% performance criteria or (the inferior alternative) using a combination of "bridging" documents (to convey basic design expectations) and performance criteria that addresses all scope not covered in the "bridging" documents.  Leave as many design options open to the design-builder; enabling them to exceed your expectation...defining 100% performance criteria will do this.

Design-builders- leave your options open; I know owners want closure (design-bid-build has taught them that concluding 100% design prior to construction is the norm). Do not fix the construction documents by incorporating them into the contract if you have the option...if not, do not incorporate them into the contract until you have truly "concluded" the design...leaving your options open allows you to refine the ultimate solution and construction.

This is how both Owner and Design-Builder can achieve a High Perfromance Outcome.