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The Protocols of Construction: The RFI

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The Protocols of Construction: The RFI
By J. Scott Shannon, Esq., Lee/Shoemaker PLLC

The documents generated during every project from the conceptual / schematic phase through construction administration and close-out / turnover comprise the protocols of construction. It is the goal of every design professional to provide clear bid and construction documents that provide the contractor with sufficient information to complete the project. When the contractor has questions about how to perform the tasks required within a scope of work as depicted on the drawings, the contractor issues what is variously called a Request for Interpretation or Information referred to as an RFI.

The number of RFIs on a project will likely vary from project to project, depending on a number of factors, including—but not necessarily limited to—the following:

  • Project delivery method;
  • Information available to design team regarding existing conditions;
  • Level of pre-construction phase services from contractor;
  • Project team expectations regarding the use of RFIs, and enforcement of those expectations;
  • Level of subcontractor oversight provided by contractor;
  • Contractor compliance with Contract Documents;
  • Version of design documents incorporated into the construction contract;
  • Phasing/sequencing of construction; and
  • Design team and/or contractor coordination efforts.

While RFIs may be used for any issue on which clarification is needed, during the bidding and construction phases the RFI process identifies inconsistencies, conflicts or ambiguities in the drawings and specifications. Used properly, RFIs facilitate clear communications between the design and construction teams to avoid problems. If disregarded or mis-used by either team, RFIs can exacerbate what may already be a troubled project. Used improperly, RFIs can be abused by a contractor to create a false impression regarding the quality of the design, the level of contractor coordination, and/or the reason(s) for delay to the project.

Implementing an effective RFI process begins with the design professional. The RFI form, such as AIA Document G716-2004, should at a minimum include spaces for all the information necessary to clearly identify the issue including drawing or specification references, the requestor’s recommended solution which the design professional should take into account as reflecting the contractor’s experience, and the time for response. An effective RFI process also involves insisting on the contractor providing all of the information contemplated in the RFI form for the project.

Management of the RFI process through integrated document management platforms or old school spreadsheets to track the responding design professional, timely responses and follow-up where warranted, is critical and goes to the design professional meeting the standard of care. The timeliness and completeness of the design professional’s response can either facilitate or impede the contractor’s schedule. The Design Team project manager should coordinate and monitor RFI responses to confirm the designers (including consultants) are being responsive to the contractor, consistency in the quality and clarity of the RFI responses is maintained, and that the responses are meeting the project’s contractual requirements.  The Design Team project manager should also track the closeout of RFIs and the reasons why an RFI response may have taken longer than the contractually contemplated time (e.g., the contractor requested that other RFI responses be prioritized), so as to avoid the creation of a false narrative regarding the timeliness of the Design Team’s response.

RFIs can be abused by contractors in a variety of ways. Some contractors use RFIs in lieu of submittals or shop drawings to place the onus on the design professional for work within the contractor’s scope. Some contractor’s use RFIs to obtain direction on means and methods, which is then used to support a claim for additional compensation. Some contractor’s use RFIs to build a paper trail in support of a contractor’s later change order request, impact, or delay claim. The prudent design professional should be looking for suspicious and/or “abusive” RFIs to avoid the contractor using the number of RFIs, or timing of RFI responses, to blame the Design Team for the contractor’s own issues.

The Design Team project manager should be vigilant about seeking additional compensation when presented with improper RFIs. While the base scope of services includes responding to RFIs submitted in accordance with the Contract Documents, it does not include review of: (i) incomplete RFIs (where the required information on the RFI form is not provided); (ii) busy work RFIs (where the information sought is readily ascertainable by the contractor from a review of the correct detail within the Contract Documents); (iii) untimely RFIs (where a response to an RFI is urgently needed to avoid delaying the project); (iv) abusive RFIs (where the contractor is attempting to shift costs/risks for submittal and shop drawing preparation to the Design Team through the RFI process); or (v) misleading RFIs (where the contractor resubmits a follow-up RFI seeking “additional information” from the Design Team to suggest that the initial RFI remains open for an unreasonable period of time).

Proper use and coordination of the RFI process is critical to achieving a successful project. The design professional giving the attention required to RFIs by establishing and aggressively managing the process will be meeting the standard of care while ensuring the finished project fulfills the design and contractual intents.

Scott Shannon is Senior Counsel at Lee/Shoemaker PLLC, a law firm devoted to the representation of design professionals in DC, Maryland, and Virginia. The content of this article was prepared to educate related to potential risks, but is not intended to be a substitute for professional legal advice.


The Protocols of Construction: The RFI (PDF)

Lee/Shoemaker PLLC is an Allied Member of AIA Potomac Valley.

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