EJCDC Contract Documents Update & Design-Build Progress
The latest updates on EJCDC contract documents, focusing on design-build progress and short-form contracts for small projects. Learn about the mission, families of standard docs, and commonality in design-build delivery.
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NC AWWA-WEA 97THANNUAL CONFERENCE - WEBINAR EJCDC CONTRACT DOCUMENTS UPDATE PROGRESSIVE DESIGN-BUILD AND SHORT-FORM CONTRACT FOR SMALL PROJECTS Kent Lackey and Matthew Skidmore
AGENDA Overview of EJCDC 2016 Design-Build Series Updates 2013 Construction Series Short-Form Agreement Upcoming Series Updates 2
WHO & WHAT IS EJCDC? JV of 3 Sponsoring Organizations; ACEC, ASCE, NSPE Liaison Organizations: Various owner, contractor, engineer, surety, insurance, attorney, equipment manufacturer, and other professional organizations Origins: First docs published 1964 by NSPE/PEPP; first EJCDC docs published 1978 Leading contracts for public works/infrastructure. Also suitable for vertical construction 4
WHO & WHAT IS EJCDC? EJCDC Mission EJCDC is a coalition of stakeholders in the project delivery process who develop and endorse quality contract documents and encourage their use through education and promotion. Different families of documents including Construction, Engineering, Design-Build and Procurement Used by many local engineering firms and municipal entities for Contract Documents 5
FAMILIES OF EJCDC STANDARD DOCS Construction (design-bid/negotiate-build) - 2013 edition, 25 documents Engineering - 2014-2015 edition, 14 documents Procurement (Buyer-Seller) - 2010 edition, eight documents Design-Build - 2010 edition 15 documents Public-Private Partnership (P3) - 2014 (industry first) Environmental Remediation - 2005 edition; seven docs Construction Management (CM) - In development Program Management (PrM) - In development
DESIGN-BUILD SERIES 2016 UPDATES 7
DESIGN-BUILD DELIVERY COMMONALITY OF DESIGN-BUILD DELIVERY 39% of all US non-residential capital projects are design- build Steady at 39-40% since 2010* 53% of all US projects >$10M were design-build in 2013* 81% of US military construction is design-build* * Reed Construction Data/RS Means Market Intelligence, Design- Build Project Delivery Market Share and Market Size Report (prepared for DBIA), 2014
DESIGN-BUILD DELIVERY COMMONALITY OF DESIGN-BUILD DELIVERY Public Work: Design-build is not enabled for public work in all states, but trend is increasing* 25 states have legislation for use of D/B by all agencies for all types of projects 17 states allow it to be widely used It is still a limited option in Alabama, Delaware, Iowa, New Jersey, New York, North Dakota, Pennsylvania, and Wisconsin Some states skipping past CMAR delivery straight to design- build delivery *Design-Build Institute of America
DESIGN-BUILD DELIVERY FLEXIBILITY OF DESIGN-BUILD CONTRACTING Two primary models Fixed Price and Progressive No such thing as traditional or standard design-build many permutations Decisions driving design-build model How advanced is design when Design-Builder is retained? Timing of final pricing (design and construction) Owner s degree of involvement Significant control Turn-key/EPC delivery P3 and DBFOM
DESIGN-BUILD DELIVERY STANDARD DESIGN-BUILD CONTRACT DOCUMENTS Engineers Joint Contract Documents Committee (EJCDC) American Institute of Architects (AIA) ConsensusDocs developed from former (AGC) standard docs Design-Build Institute of America (DBIA) International Federation of Consulting Engineers (FIDIC)
HISTORY OF EJCDCS DESIGN-BUILD FAMILY OF DOCUMENTS EJCDC first published a Design-Build family of contract documents in 1995. Previous Design-Build was primarily a fixed price Based on a one-step qualifications and cost selection Developed from the C-Series Standards Updated in 2002. Similar configuration general update only Most recent updates released in 2016
DESIGN-BUILD DELIVERY DESIGN-BUILD DELIVERY STRUCTURE Owner s Consultant Owner Consultant Contract Design-Build Entity Engineer Contractor Consultant Consultant Contract Sub- contracts Design and Construction Contract Subcontractor Purchase Order Suppliers Subcontractor Sub-sub- contractor Subcontractor Sub-sub- contracts
EJCDC 2016 DESIGN-BUILD DOCUMENTS D-001, Commentary on the 2016 EJCDC Design-Build Documents Opportunity Pursuit Documents D-580 (NEW), Teaming Agreement to Pursue Joint Business Opportunity for Design-Build Project Owner Preliminary Documents D-110 (NEW), Guide to Request for Qualifications Design-Build Project D-111 (NEW), Guide to Request for Proposals Design-Build Project D-425 (NEW), Price Proposal Form Design-Build Project D-500, Agreement between Owner and Owner s Consultant
EJCDC 2016 DESIGN-BUILD DOCUMENTS Owner -- Design-Builder Documents D-512 (NEW), Agreement between Owner and Design-Builder for Progressive Design-Build D-520, Agreement between Owner and Design-Builder (Stipulated Price) D-525, Agreement between Owner and Design-Builder (Cost-Plus) D-610, Design-Build Performance Bond D-615, Design-Build Payment Bond D-700, Standard General Conditions of the Contract between Owner and Design-Builder D-800 (NEW), Guide to the Preparation of Supplementary Conditions (Design-Build)
EJCDC 2016 DESIGN-BUILD DOCUMENTS Owner -- Design-Builder Documents D-620 (NEW), Design-Builder s Application for Payment D-940 (NEW), Work Change Directive Design-Build Project D-941 (NEW), Change Order Design-Build Project
EJCDC 2016 DESIGN-BUILD DOCUMENTS Design-Builder -- Sub Documents D-505, Agreement between Design-Builder and Engineer D-523 (NEW), Construction Subcontract for Design-Build Project Discontinued (former docs, no longer available): D-510, Agreement between Owner and Design/Builder for Preliminary Services D-521, Subagreement between Design/Builder and Subcontractor (Stipulated Price) D-526, Subagreement between Design/Builder and Subcontractor (Cost-Plus) D-750, Standard General Conditions of the Subcontract between Design/Builder and Subcontractor
EJCDC 2016 DESIGN-BUILD DOCUMENTS D-001: COMMENTARY This Guide to Use of EJCDC Design-Build Documents (D- 001) Commentary on the use of the design-build family of documents and is essential to achieving the contracting goals of these documents Guidance related to how and why EJCDC developed certain provision or approaches
DB DOCUMENTS: OPPORTUNITY PURSUIT D-580: TEAMING AGREEMENT This is an agreement between two firms to pursue a design build opportunity for mutual benefit. Usually a Contractor and an Engineer, but could also be include a Contractor and a Subcontractor. Agreement is in place during the pursuit stage and sets the agreements in place for incorporation into final contracts if the opportunity is won. Owner s Consultant Owner Consultant Contract Design-Build Entity Engineer Contractor Consultant Consultant Contract
DB DOCUMENTS: OPPORTUNITY PURSUIT D-580: TEAMING AGREEMENT NEW document, developed in part from EJCDC E-580 and E-590 Use: Agreement with a contractor/design-builder teams with an engineering firm to pursue an opportunity Assumption: Engineer is junior teammate to prospective design-builder Agreement to agree to set stage for pursuit of business opportunity Exclusivity of team
DB DOCUMENTS: OPPORTUNITY PURSUIT D-580: TEAMING AGREEMENT Pins down relevant contractual terms Incorporates EJCDC D-505 (DB-Engineer Agreement) by reference or an attached term sheet to define post- award contracting Incorporates D-700 by reference Engineer s liability for design work performed under Teaming Agreement Cost allocations
DB DOCUMENTS: OWNER PRELIMINARY D-500: OWNER-CONSULTANT AGREEMENT This agreement is used for an Owner to contract directly with a Consultant to assist the Owner during the planning, procurement, and delivery phases of the project. Often times referred to as Owner s Engineer. Owner s Consultant Owner Consultant Contract Design-Build Entity Engineer Contractor Consultant Consultant Contract
DB DOCUMENTS: OWNER PRELIMINARY D-500: OWNER-CONSULTANT AGREEMENT Use: Provides agreement with firm supporting Owner through design-build process from concept to design- build completion Assumption: Generally an Engineer or other Consultant General Roles: Advisory: project delivery selection Pre-Selection: conceptual design documents, prepare and administer RFQ/RFP process, selection support Post-Selection: Consultant during design-build performance Comprehensive, editable scope list in Exhibit A
DB DOCUMENTS: OWNER PRELIMINARY DESIGN-BUILDER SELECTION One-Step Selection Step 1: Request for Qualifications (QBS) with short list Qualifications based selection May include fee or other pricing Two-Step Selection Step 1: Request for Qualifications (QBS) with short list Qualifications based short-listing Step 2: Request for Proposals Detailed technical proposal Price Proposal (fixed price, indicative price, or fee components Interviews Selection and Award
DB DOCUMENTS: OWNER PRELIMINARY D-110: REQUEST FOR QUALIFICATIONS Use: Progressive Design Build: typically use in a one-step process used with qualifications based selection or qualifications plus fee based selection Fixed Price: typically used as first step of two-step process to short- list firms to limit number of firms participating in developing full design and price proposals in step 2 Provides project background, requirements, selection criteria Gathers information: experience, financial, technical approach, background qualifications May include information regarding design-builder s fee or design fee
DB DOCUMENTS: OWNER PRELIMINARY D-111: REQUEST FOR PROPOSALS Use: The contents of this EJCDC document is intended to serve as a companion document to EJCDC D-110 (Request For Qualifications) in a two step process. This document is intended to serve as the platform for soliciting price and technical proposals from qualified proposers. Includes more detail pricing and contractual information Proposal Security Contract Times Liquidated Damages Taxes Proposal Compensation
DB DOCUMENTS: OWNER PRELIMINARY D-425: PRICE PROPOSAL FORM The contents of this EJCDC document is intended to serve as a companion document to EJCDC D-111 (Request For Proposals). Similar to C Series Bid Form Lump sum, cost plus, price plus time, or unit prices Procurement Assignments Bid Alternatives Adjustment Unit Prices
DB DOCUMENTS: OWNER -- DESIGN-BUILDER DESIGN-BUILD PARTNER CONTRACTING FORMS Forms establishing the final contracts between prime and subcontractor partners in a design build arrangement. Owner s Consultant Owner Consultant Contract Design-Build Entity Engineer Contractor
DB DOCUMENTS: OWNER -- DESIGN-BUILDER OWNER -- DESIGN-BUILDER AGREEMENT FORMS EJCDC D-520 use for lump sum (stipulated price) compensation Owner s Consultant Owner EJCDC D-525 use for compensation on a cost- plus-a-fee basis, with or without a GMP Consultant Contract Design-Build Entity EJCDC D-512 Progressive design-build; construction price deferred until more scope/design accomplished Engineer Contractor
DB DOCUMENTS: OWNER -- DESIGN-BUILDER D-505: DESIGN-BUILDER ENGINEER AGREEMENT Use: Design-Builder retains an independent Engineer to provide the final design services as a subcontractor to Design- Builder. Comprehensively lays out risk allocation. Includes scope of services document Owner s Consultant Owner Consultant Contract Design-Build Entity Engineer Contractor Consultant Consultant Contract
DB DOCUMENTS: OWNER -- DESIGN-BUILDER D-523: DESIGN-BUILDER -- CONSTRUCTION CONTRACTOR SUBCONTRACT Use: prime construction contract, when Design-Builder is hiring a general contractor Trade contract when the Design-Builder is self-performing or subbing out some of the construction. Owner s Consultant Owner Consultant Contract Design-Build Entity Engineer Contractor Consultant Consultant Contract
DB DOCUMENTS: OWNER -- DESIGN-BUILDER DESIGN-BUILD PARTNER AGREEMENT FORMS Structured and, where applicable, worded similar to EJCDC s Construction series Common Elements Identification of parties and DB s Designer Contract Times; damages provisions Contract Price; method of compensation Basic payment procedures; retainage; interest DB s representations List of Contract Documents Signatures
DB DOCUMENTS: OWNER -- DESIGN-BUILDER D-512: PROGRESSIVE DESIGN-BUILD Industry first - EJCDC acknowledges assistance of Water Design-Build Council Document specifically developed for progressive style projects Use: When project scope not well-defined at outset Use: When design has not been developed Use: When Owner wants to remain directly involved in design process and schedule Use: When Owner wants to participate in selecting key subcontractors and equipment suppliers
DB DOCUMENTS: OWNER -- DESIGN-BUILDER D-512: PROGRESSIVE DESIGN-BUILD Divides Project into: Preliminary Stage (studies, planning, preliminary design) Completion Stage (starts after agreement on the Completion Price) Allows Owner and DB to define the scope of Work during Preliminary Stage, and collaborate fully on design and construction development Parties not constrained by prematurely set limits
DB DOCUMENTS: OWNER -- DESIGN-BUILDER D-512: PROGRESSIVE DESIGN-BUILD Compensation Approach Initial Agreement includes scope and compensation for Preliminary Stage only Parties agree on Completion Stage Price (primarily construction) when design is sufficiently advanced Price for final design services may be determined after Preliminary Stage Open book /transparent pricing process
DB DOCUMENTS: OWNER -- DESIGN-BUILDER D-512: PROGRESSIVE DESIGN-BUILD Off Ramp Contract is terminated for convenience: If Owner does not accept a Completion Stage Price Permitting issues, etc. hinder a successful project Owner to pay DB a supplemental fee to use design documents developed in Prelim Stage
DB DOCUMENTS: OWNER -- DESIGN-BUILDER D-512: PROGRESSIVE DESIGN-BUILD Allows for Qualifications Based Selection of Design- Builder Progressive estimates allow project to be tailored to Owner s budget Can support local expertise Regional firms can support larger teams with minimal proposal investment Subs can participate without at-risk positions Owner can provide input on preferred specialty firms
EJCDC 2016 DESIGN-BUILD DOCUMENTS EJCDC D-700 VS DBIA 535 Design phase engineering services EJCDC provides tasks during design phase while DBIA does not. DBIA requires a proposal such as the one presented for preliminary services.
EJCDC 2016 DESIGN-BUILD DOCUMENTS EJCDC D-700 VS DBIA 535 Shop Drawings and Samples: Review and approve or take other appropriate action with respect to Shop Drawings, Samples, and other submittals, with respect to Work designed or specified by Engineer, but only for conformance with the information given in the Construction Drawings and Construction Specifications. Such reviews and approvals or other action shall not extend to means, methods, techniques, sequences, or procedures of construction, or to safety precautions and programs. Additional Services: Reviewing a Shop Drawing more than two times, as a result of repeated inadequate submissions.
EJCDC 2016 DESIGN-BUILD DOCUMENTS EJCDC D-700 VS DBIA 535 Contingency Amount DBIA provides for a contingency amount while EJCDC does not. Payment EJCDC lists 12 specific reasons for the Owner to withhold payment while DBIA does not (setoffs).
EJCDC 2016 DESIGN-BUILD DOCUMENTS EJCDC D-700 VS DBIA 535 Correction of Defective Work EJCDC charges the cost of correcting defective work to the Design Builder (Including indirect cost of others), while under DBIA the Design Builder is not reimbursed for its cost to correct its defective work only. DBIA treats all defective work after substantial completion as a warranty item and does not allow the Owner to withhold the cost to correct any items discovered after substantial completion from final payment.
EJCDC 2016 DESIGN-BUILD DOCUMENTS EJCDC D-700 VS DBIA 535 Suspension Under EJCDC the Owner may suspend work up to 90 days without a right of termination by the Design Builder. Under DBIA the Owner may suspend work up to sixty (60) consecutive days or aggregate more than ninety (90) days during the duration of the Project. Termination For Convenience EJCDC Does Not Allow Design Builder To Collect Lost Profits DBIA Allows Design Builder To Collect Lost Profits
EJCDC 2016 DESIGN-BUILD DOCUMENTS EJCDC D-700 VS DBIA 535 Design-Builder shall be responsible for all requirements and instructions that it furnishes to Engineer under this Agreement, and for the accuracy and completeness of all programs, reports (including without limitation engineering reports and geotechnical reports), data, and other information furnished by Design-Builder to Engineer pursuant to this Agreement. Engineer may use and rely upon such requirements, instructions, programs, reports, data, and information in performing or furnishing services under this Agreement, subject to any express limitations or reservations applicable to the furnished items, including but not limited to limitations or reservations stated in the Design-Build Contract.
CONSTRUCTION SERIES SHORT-FORM AGREEMENT 47
EJCDC 2016 SMALL PROJECT CONTRACT C-522: CONTRACT FOR CONSTRUCTION OF A SMALL PROJECT Part of Construction Series 2013 updates Released in 2016 Available for purchase with 2013 C-Series documents Can be purchased individually Traditional Design-Bid-Build projects. Designed for use with small projects with less overall risk where full set of EJCDC C-series documents may not be necessary. 48
EJCDC 2016 SMALL PROJECT CONTRACT C-522: CONTRACT FOR CONSTRUCTION OF A SMALL PROJECT Combines portions of other C-series documents C-520 Agreement C-700 Standard General Conditions C-800 Supplementary Conditions Fully binding legal construction contract with terms and conditions. About 20 pages total length prior to customization 49
EJCDC 2016 SMALL PROJECT CONTRACT C-522: CONTRACT FOR CONSTRUCTION OF A SMALL PROJECT For use with projects with minimal easily-managed risk No significant changes are expected No Differing Site Conditions or Hazardous Environmental Conditions are expected. No Owner-assigned procurement contracts. No significant coordination of other work at the Site. Contractor does not have any design responsibilities. 50
EJCDC 2016 SMALL PROJECT CONTRACT C-522: CONTRACT FOR CONSTRUCTION OF A SMALL PROJECT Material and equipment substitutions are handled through Change Order process. Assumes design Engineer is involved during construction Not for use with third-party CM. Project cost EJCDC recommends ceiling amount of $500,000 (highly conservative). Potential use on higher $ value projects, but need to consider overall risk. 51
EJCDC 2016 SMALL PROJECT CONTRACT C-522: CONTRACT FOR CONSTRUCTION OF A SMALL PROJECT Intended to be used as a stand alone document Compatible with other C-series documents with careful editing to revise location references Bidding Documents (Advertisement, ITB, Bid Form) Change forms (CO, WCD, FO) 52
EJCDC 2016 SMALL PROJECT CONTRACT C-522: CONTRACT FOR CONSTRUCTION OF A SMALL PROJECT Format similar to C-520 Agreement. Divided into multiple articles. Identify all parties to the Contract Identify the Work to be performed Identify all Contract Documents Identify price and time requirements, including LDs Identify insurance and bond requirements 53
