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This may come as a surprise but Requests for Information (RFIs) don’t formally exist; not in a standard Canadian Construction Documents Committee (CCDC) contract, anyway. However, as professionals we are committed to the project and to our clients in providing answers to legitimate questions from the contractor in a timely manner. The RFI process can be used to the project’s advantage by setting a precedent for a collaborative relationship between consultant and contractor throughout the project. We have seen the benefits of acknowledging a valid question with “Thank you for pointing this out” and then providing a clear, concise response.

Following are suggestions from the Construction Contract Administration Committee (CCAC) to help avoid pitfalls related to the consultant’s response to RFIs as are found on projects that are bound by a standard construction contract between owner and contractor, such as may be found in a typical CCDC Contract, e.g. Stipulated Price CCDC 2, Cost Plus CCDC 3, Unit Price CCDC 4, or Construction Management CCDC 5B.

RFIs are issued during the construction phase. They may originate with a sub-contractor and be answered by a sub-consultant, but they are issued by the contractor to the consultant for processing.

Since the definition of the RFI does not exist in the standard contract, it is preferable to create it within the contract and establish its position in the hierarchy of documents through the use of Supplementary Definitions and Conditions. This may be supplemented with a Division 01 specification section under 01 26 00 Contract Modification Procedures describing the RFI process. The CCAC have developed and provided sample specification sections for use with a General Contractor and a Construction Manager.

The project pre-construction meeting is an appropriate opportunity to review the process and procedure for RFI’s, including standard RFI request and response forms and their proper use.

It is important for the consultant to evaluate whether the response to an RFI warrants a Supplemental Instruction (SI) or Proposed Change (PC). If it does then the related SI or PC number should be referenced in the answer to the RFI and issued at the same time as the response is issued. Note that the OAA 600 Standard Client/Architect Agreement does make reference to RFIs stating that the architect is to “receive requests for information from Contractors and process accordingly.” The Canadian Handbook of Practice (CHOP) also includes information about this subject in chapter 2.3.10 and Appendix A – Requests for Information.

Before answering an RFI, most likely distributed by the contractor by means of an on-line project management database, email, or fax, read the form completely to see if there is an involuntary acceptance of unreasonable terms.

Examples could be:

• Answer to RFI will affect cost
• Answer to RFI will affect schedule
• By answering this RFI the consultant agrees to…

The CCAC have prepared and provided a sample form for your response to RFI. Note that every answer should be professionally given on a form or similar instrument. It is not recommended that you provide your answer on a form provided by the contractor, as described above. If you must respond on a form (physical or electronic) provided by a contractor, you should include an appropriate disclaimer such as the one on the sample form. A good way to avoid RFIs, altogether, is to encourage discussion during the regularly scheduled site meetings.

There may be circumstances where the contractor will try to portray consultants in a bad light through the use of RFIs. Examples include:

•  Asking for confirmation for items that are well-stated in the documents;
•  Issuing RFIs where the answer has already been provided in the documents or previous RFIs;
•  Designating unreasonable short response times in order to make the consultant appear to be perpetually late in responding,
•  Using excessive numbers of RFIs to build a case for a delay claim.

It’s okay to push back! If the question is not worthy of your time then return it and ask for clarification from the contractor, but when you feel justified in doing this, make sure to send your reply soon after receiving the errant RFI. Waiting will only legitimize the RFI from the contractor’s point of view and will reflect poorly in any analysis of response times. A suggested way to expedite a response to marginal RFI’s is to create a rubber/electronic stamp in order to fill in the specification section number and/or drawing/detail number, or the like. Consider each RFI carefully and if you need clarification then return it promptly, asking for it. Maintain a sense of urgency and clarity for all RFIs as you do not want to be associated with any delays in the construction schedule or cause any additional costs. This will show that you are working in the spirit of teamwork.

Each RFI should be resolved and closed out as a stand–alone question. It is not beneficial to the project for an RFI to become a dialogue or to morph into a series of separate questions. As RFI answers are meant to serve the project, they should be easy to track within your own project log. Combining questions and answers will diminish the search results and may make it harder to retrieve the answer later. An answer to a question should only be given once. If the question is asked more than once, then each subsequent answer should refer to the first instance the answer was given.

Another reason each question should be answered individually is that an RFI will remain open while the successive exchanges are going on, skewing the response time-line. It is okay to push back on this as well and let the contractor know that they need to open new RFI’s for each question that follows. But, contract administrator, note that there is no mandated length of time in standard CCDC contracts within which to answer RFIs. Any timeframe stated is merely what the contractor desires. In section GC 3.4 DOCUMENT REVIEW of the CCDC 2 contract it does state that the Contractor “shall not proceed with the work affected until the Contractor has received corrected or missing information from the Consultant.” They are asked to obtain written instructions from the Consultant before proceeding with any part of the affected work.

Even though the contractor keeps copious records regarding RFI’s and it’s tempting to rely on them, it is in the best interest of the consultant to keep their own records. Keep a project RFI Log that includes dates received and answered, the title (add any key search words if they weren’t included in the title), description, spec section, drawing number, and comments. Most of us, on one project or another, have been expected to use an on-line database, as managed by the contractor. Protect yourself by keeping your own records, as we have no control over the accuracy of or our continued access to a contractor’s database.

Remember that RFI’s are initiated by the contractor and may be used to their advantage, so be vigilant with your answers. How things appear while the project is underway may be very different from how they appear many months later under cross-examination if there were to be a claim.

 

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These articles do not represent OAA policy or guidance but rather are based on the opinions and experiences of members of the OAA and are prepared for the benefit of the profession at large.

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