Conflicting Fire Rating and a Change Order on a $4.2M Renovation
On a $4.2M, 210-day library renovation using AIA A201, the drawings show a 2-hour rated corridor wall and the specification section requires a 1-hour assembly. The contractor bid the 1-hour wall. At 40 percent completion, the building official, applying the current code to the alteration, requires the 2-hour rating. The contractor submits a change order for $128,000 in direct cost, 12 percent overhead and profit, 8 percent loss of productivity for out-of-sequence work, and 9 calendar days of extended general conditions at $2,600 per day. The contractor gave written notice 3 days after the building official's ruling; an RFI had gone out 14 days before. The contract time has not been extended, and the contractor's CPM shows the wall on the critical path with 4 days of float at the time of the ruling. The owner's representative says the contractor should have known the code required 2 hours and should absorb the cost.
1. Who bears the cost of the upgrade, and why? Address the owner's 'should have known the code' argument.
Read the worked answer
The owner bears the cost. The contract documents contained an internal conflict between the drawings and the specification, and neither matched the building official's reading of the code. The contractor is entitled to rely on the documents it was given. A201 requires the contractor to review the documents and report errors it discovers, but a failure to catch a conflict does not transfer design responsibility to the contractor, and it does not relieve the owner of the cost of a directed change.
Notice is timely. Under A201, notice of a claim is due within 21 days of the occurrence. Notice here came 3 days after the ruling, and the RFI 14 days before shows the contractor raised the issue promptly rather than sitting on it. There is no notice defense available to the owner.
The 'should have known the code' argument is weak. Code compliance is the design professional's obligation. Unless the contract is design-build or the specification is written as a performance requirement that puts code compliance on the contractor, the owner cannot shift that risk after the fact. The building official's ruling is a change in the work, and the contract sum and time are adjustable by change order.
One nuance worth stating plainly: A201 does not contain an order-of-precedence clause, so in a conflict the more stringent requirement often governs as a practical matter. But resolving that conflict is the architect's job during design, and the owner should not profit from the failure to do it.
2. Evaluate each component of the change order. What do you approve, what do you question, and what documentation do you demand?
Read the worked answer
Direct cost, $128,000 - approve if substantiated. Require subcontractor quotes, invoices, and certified payroll for the added scope. Compare the unit costs against the bid schedule of values for similar assemblies. Do not approve a lump sum without backup.
Overhead and profit at 12 percent - check the contract first. If the agreement or supplementary conditions state a fee percentage, that governs. Twelve percent is within a common range for a negotiated change, but it should be applied to the direct cost only and should not stack on top of the loss-of-productivity line.
Loss of productivity at 8 percent - question it. LOP is a recognized head of damage, but it must be substantiated, not asserted. Ask for a measured-mile analysis comparing the productivity actually achieved on the out-of-sequence work to the productivity on comparable in-sequence work elsewhere on the job. A flat 8 percent is a negotiation opening, not a number to approve. On a discrete, well-defined scope, an LOP claim is also weaker than on a broad disruption claim, so scrutinize whether the sequencing was truly disrupted or merely resequenced.
Extended general conditions - do not pay twice. These are tied to days of extended contract time, so they belong with the schedule analysis, not with the direct cost. Watch for double counting: the LOP claim already captures the cost of inefficiency, and the extended GCs capture the cost of duration. Claiming both for the same days over-recovers.
Require: itemized backup, the measured-mile study, a time-impact analysis tied to the accepted CPM, and a certification that the claim does not include costs already in the contract.
3. Analyze the 9-day time request and give the owner a recommendation.
Read the worked answer
Time is not automatic and it is not the same as days of impact. At the time of the ruling the wall had 4 days of float. Nine days of impact consumes the float and produces 5 days of critical delay, not 9. Unless the contractor's time-impact analysis shows otherwise - for example, a fragnet that demonstrates the work cannot be resequenced - the defensible entitlement is 5 calendar days.
Ask for two things: a time-impact analysis using the accepted CPM, and a fragnet showing the actual sequence of the added work. Give the contractor the opportunity to mitigate; if the work can be pulled off the critical path by resequencing, the owner should not pay for its extension.
Recommended disposition:
- Change order for the substantiated direct cost plus the contractual fee.
- Negotiated LOP after the measured-mile study, settled rather than litigated.
- 5 days of contract time extension and 5 days of extended general conditions at $2,600 per day, subject to the time-impact analysis.
- A written direction that keeps the corridor wall off the critical path in the interim.
Prevention, which is the real lesson: issue a supplementary condition for the next project establishing order of precedence among the documents, and require a code-compliance review of the life-safety drawings before bid. A conflict this visible should have been caught in the architect's own quality control, and the owner is paying for that gap either way - in the change order or in the dispute.