Post 29 -by Gautam Shah
In any venture risks of under-performance, non-performance exists. These are due to mis-match with the expectations, circumstances and inadequate foresight and care during planning, execution and operations of projects.
The liabilities in ventures manifest, at many different levels:
● Designers’ Liabilities: Project conceiver, planner or designer, are all liable for the inadequacies of conception resulting in poor definition of performance requirements, for having inadequate processes of verification for the offerings of the contractor or vendor and for establishment of operations mechanisms that is ineffective and lacks coordination. Designer’s take-on liabilities of sub-consultants, by agreeing to work with under-qualified experts.
● Contractor or Vendor’s Liabilities: Contractors’ or Vendors’ liabilities are more defined and so always restricted, in spite of all-inclusive clauses that may have been integrated in the terms of contract. The liabilities of the contractor generally relate to correcting the defects or complete replacement. The liabilities may also include making good the loss of profit and loss of opportunity during the period of inadequate working. In some conditions it may include the cost of misuse of materials, site facilities and loss of life and damage to other properties.
● Operations’ Liabilities: Liabilities arise from the operations of the project or system. Designers and Contractors usually preempt such situations with appropriate provisions in the contractual relationship with the client. Operations specifications, in recognition of such situations provide for setting up of appropriate Risk Management Systems. A risk management system recognizes the role of regular maintenance. Guarantees and warranties help in diluting the level of apparent risks and thereby reduce the Cost of Risk-Management (insurance premium).
● Circumstantial Liabilities are mainly from external conditions like, disasters, calamities, political situations, changes in law, rules, perceptions, trends, fashions, etc. Some of these are natural and involve designers for inadequate perception and provisions. But other external liabilities depend on political, economic and social changes, and so many not attach a designer.
Liabilities for designers arise from what they professionally deliver. These include specifications, observations and supervision of a job. The specifications include 1 Drawings, Graphical representations, 2 Literary or oral explanations, 3 Models, samples, surrogate representations 4 Formal or tacit acceptance of happenings related to design.
Quality of Expression in Specification Writing: Writing Specifications is the most important way of facilitating a product or service. Specifications writing is an extended activity of contracting, so here too all the contract fundamentals are strictly followed. As per the natural law ‘a contract has to be enforceable, and whatever is specified must be doable. Specifications cover all valid and essential requirements of the job. A major danger in writing specifications is to include unnecessary information. So choosing, what to exclude is as important, as choosing what to include. Specifiers (Designers) must eliminate any requirement that adds no value to the Product or Service being acquired. The Specifier (Designer) must state clear conditions in a complete language, and yet remain brief.
Defects in Specifications and Liabilities: Very few specifications are totally free from defects. As a fundamental principle of law, a specifier (Designer) is responsible for the consequences of the specifications. Designers usually put in a disclaimer (in the contract with their client) for errors found in their work. The Insurance companies that cover the designers for Professional Liability (Professional Indemnity Insurance) insist upon it.
Most of the specification writers (Designers) incorrectly presume that their text of specifications is read and interpreted by comrade technocrats only, with whom they share similar experience and mind-set. During a dispute specifications are, however, more attended by non technocrats like the administrators, lawyers, jurors and judges. A contractor interprets the specifications, as long as the interpretation is commercially reasonable (an earning proposition).
The Notion of Deconstructionism: A French philosopher, Jacques Derrida originated the Notions of Deconstructionism. It is a whim of finding alternate interpretations of text. He contended that the meaning of a text is dependent on the context in which it is interpreted. All writings in some degree can be interpreted differently from what was intended. Deconstructionism doctrines, from Jacques Derrida and his colleague Michel Foucault, were a rage in many universities during the 1980’s. A quotation from Thoreau, ‘The mass of men lead lives of quiet desperation’ was attacked by a feminist deconstructionist in words like: ‘….. real intention was to say that most women lead lives of noisy elation.’ Here the writer’s unintentional gender-specific wording was interpreted differently.
Faulty Specifications and a Contractor’s Attitude: A contractor works with sheer sense of profit, and so deals with faulty specifications in any one of these ways:
1 A contractor charges by doing the prescribed work according to the personal interpretation.
2 demand extra for undoing what was done
3 charge for redoing the job according to the corrected interpretation.
1 a Contractor may refuse to execute the work causing delay, or
2 take a legal recourse on the grounds of impossibility of performance or commercial impracticability.
Specifications and Enforcement: A neat contract is one where things are delivered for consideration, but strictly in a one-way transaction. However, contracts are very complex. Certain jobs require clients to provide information, materials, equipments, facilities or services to the contractor (as per the terms of a contract or job specifications), and an obligation is incurred. Even if such things are offered with or without a return consideration, the contracting parties get tied up in the Reverse Transaction. A client, failing to deliver as promised, takes the blame for missed schedules and cost overruns. Specifications causing such Reverse Transactions are prone to enforcement difficulties.
Accuracy and completeness of Contract Specifications: A Contract is in force the moment it is signed, or dated to be effective. Once a contract comes into force, any thing has been left-out, or not properly defined, can be only corrected through a Negotiated Supplementary Agreement. A Contract and Specifications must not leave out any aspect, as something to be agreed or determined later on (e.g. a clause like: plastic paint of x quality, but colour shade to be approved later).
In design offices specification-writing is a last moment compilation, and as a result it is common to see specifications of items that do not exist, or have been eliminated from the project. Specifications of only intended items and required quantities of work should be provided to the contractor. Otherwise, the bids will reflect the necessity of being prepared to handle Intended items and Quantified work.
Holistic Products and Site Assembled Systems: Job assignments for Structures, Architecture, Interior Design, etc. consist of both, Holistic Products and Site Assembled Systems. It is often easier to handle Holistic Products, fully or substantially through Performance Specifications. However, Site Assembled Systems inevitably have some form of Design Specifications.
Specifications and Fair Trade Practices: Avoid specifying a particular product, agency, tool, equipment, or a patent process. Favouring one, to the exclusion of others would mean Unfair Trade Practice. It is a good business sense to encourage competition to achieve better prices and quality. Competition also provides optional and reliable sources of supply. Mentioning a particular product, provides an unintentional warranty of its suitability for the purpose. It is better to confine Specifications to Requirement Statements.
Property Disposal: When Writing Statements of Work, the Contractor must be told How to dispose of residual materials, garbage, sewage, emissions, etc. Such Disposal Procedures have to follow the local regulations, often at cost. The liabilities arising out of compliance and the cost operations need to be specified. If the residual materials are to be handed back to the client, then handling and storage must be specified. If disposal of such items is likely generate an income, who takes the money must be mentioned. The Tax liabilities of expenditure, income generated, or sales done for disposal, also requires clarification.
Valid Claims: A Designer and Client realize shortcomings of the work being executed, and request alterations or corrections. Such changes are not executed unless formally requested. The cost of such constructive changes is to be paid by the client and is considered a Valid Claim. Contractors also make mistakes. A contract specifies modalities for notifying mistakes and what is considered to be improper communication of information or reportage by the contractor. Contracts also list modalities for corrective action and settlement of costs.
Language: Contract language must be simple and for that reason sentences should be short. Long sentences do not provide any sensible meaning. Throughout the document for the sake consistency and even at the cost of creating dull and a simplistic write-up, use the same words, phrases (rather than exploiting a thesaurus). Use category numbering system and avoid inter-document referencing such as ‘see xxx page, ref to yyy sub item, see above-below’, etc. Avoid acronyms, If must, use the commercially known abbreviations, and provide a reference index with expanded meanings. Avoid ambiguous words, or phrases that reflect more than one meaning. Refrain from phrase constructions that due to their sequence of placement, context or grammatical relationship could be interpreted differently. Conflicting Requirements often result from using totality words (such as: all, always, never, every, and, none, etc.) in statements, when something else in another sentence makes an exception to the totality.
Writing in Passive Voice is always superior. The object of an action gets precedence and thereby the required special attention. In specifications the emphasis must rest on the product being described. It also removes the mention of the actor. Government servants favour passive voice because it does not require the mention of the actor, and thus avoid the responsibility. Avoid using gender nominating words like he, she, his, her, him, man, men, woman, women, etc.
Grammatical Errors: There are three levels of grammatical errors. At primary level such errors do not affect the meaning being conveyed. (X ate less apples than Y vs. X ate fewer apples then Y). At next level the grammatical mistake renders the sentence totally meaningless. Such errors can be corrected through meticulous proofreading. But the most dangerous grammatical blunders are those that alter the intended meaning of the expression, to something different. These get passed over by most literary proofreaders and software like word processors’ grammar checks. Such mistakes can only be checked by an expert Specification Writer, or a Seasoned Contractor. The last levels of errors are most exploited by a lawyer in case of a dispute.
11 LIABILITIES –part of the lecture series DESIGN IMPLEMENTATION PROCESSES