General Contractor v Construction Manager


View My Stats

Tuesday, October 30, 2007

General Contractor v Construction Manager, p 11

A contractor writing about construction manager–agent recently defined the method correctly as a “management method,” not a delivery method. This is a much better description because the CM-agent is acting as the owner’s representative. The CM-agent essentially becomes a “contracted” employee of the public owner. Depending on how the contract with the CM is written, the public owner pays a guaranteed percentage fee plus the actual costs of the CM services on the project.

One of the projects I analyzed called for the CM to be paid a fee equal to 4.5% of the cost of the project plus the cost of all “reimbursables,” which included the cost of personnel and support services on site. The project total budgeted cost was approximately $3 million. The CM-agent was paid $325,000 plus to manage the project. Assuming that the various trade contractors averaged an increase in price of only 15% over their normal bid numbers on the remaining $2.675 million, the extra monies paid on these contracts would be approximately $400,000. That is a total of $725,000 of the available $3 million. The school district could have hired a project engineer or construction expert and put them on salary full time for much less than that amount. In fact, in most cases, retired construction personnel would be available to act as inspector for the district on such projects.

As I have noted in earlier blogs construction manager-at-risk contracts on private work is common and is similar in many ways to general contracting. The primary advantage for private owners is that they are able to begin construction before design is complete and work with the design team to provide the owner with a personalized project at a negotiated price. Since design is not finished when work begins, the price is usually some sort of guaranteed maximum price, often with a clause to share in the savings if the project is completed for less than that GMP. The CM-at-risk has essentially the same responsibilities and liabilities as a general contractor. He contracts with the subcontractors and directs all the construction work on the project. These types of arrangements are not legal for public owners. However, the benefits of these types of arrangements are often touted as advantages to sell the public owner on construction manager-as-agent, and the public owner is taken in because he doesn’t know the difference.

One of the major points the firms selling these services use is that they can fast-track the project. This is true for CM-at-risk projects with private owners, where construction work can begin while design is still being finalized. Under Missouri law, the public owner must competitively bid all construction work, therefore, design must be complete before bidding and there is no time saving. In fact, the process of separating the work into separate bid packages under a CM-agent method takes even more time up front and the design must be extremely detailed and complete in order to avoid excessive change orders, errors and omissions.

A school board member told me recently that his district saved money on their construction work with the CM because the CM brought in a firm for one of the packages from a neighboring state where they didn’t have to pay prevailing wage. I explained that, under Missouri law, that could not happen, that the contractor from the neighboring state was required to pay prevailing wage in Missouri, and that, if he reviewed the bidding documents for the bid packages, he would see that every bidder was required to certify and submit prevailing wage documentation. If the CM allowed any of the contractors to pay less than the prevailing wage, it is possible that the school district could be held legally responsible for these violations.

Missouri public boards other than school districts have now fallen victim to the sales pitch for this construction manager-agent method. My next blog will address these issues.

Friday, October 5, 2007

General contractor v. CM, page 10

Monday, May 14, 2007 at 12:03 PM EDT

REMINDER: all these blogs' references to construction manager are to the particular form of construction management services being used on public school building construction in which the work of the project is bid by “work packages” directly to the school district.

In the previous blog, the studies quoted found that the increased costs of the construction manager system ranged from 20 to 30 percent. As I noted in earlier blogs, comparing the general contractor and construction manager types of contracting in terms of cost is like comparing apples and oranges. The increased costs are attributable to the following factors:

  1. The CM does not act as general contractor but as the owner's representative, and has no role in the actual construction work.
  2. The subcontractors bidding work packages directly to the school pay substantially higher bonding rates than a general contractor.
  3. Subcontractors bidding work packages must cover work not normally done by their own forces, so increase their bids to cover those costs.
  4. Subcontractors do not have the expertise to evaluate the entire project for construction difficulty and scheduling problems, so increase their bids to cover those costs.
  5. Subcontractors often face delays and re-mobilization issues due to lack of coordination of the work.
    A subcontractor must include extra money to cover this cost.
  6. Material suppliers must bid to subcontractors they may not be familiar with, so increase their bids.
  7. Completion dates and liquidated damages are unenforceable under construction manager system due to multiple interdependent contracts.
  8. Construction manager costs are not known. Typical costs include rentals, on-site and home office personnel costs, support costs, and miscellaneous other costs billed on a monthly basis.
  9. Fewer trade contractors bid work packages due to perceived “gamesmanship” or favoritism in bid analysis.
Next blog: An analysis of comparative projects

General contractor v. CM, page 9

Friday, April 13, 2007 at 4:29 PM EDT

REMINDER: all these blogs' references to construction manager are to the particular form of construction management services being used on public school building construction in which the work of the project is bid by “work packages” directly to the school district.

The decision of whether to use a construction manager instead of the traditional design-bid-build method often is made by superintendents and school boards based on a good sales pitch from a CM firm. The methods and procedures of the construction industry are complex and not well understood by those who are outside the industry; most school officials do not even know what questions to ask. Properly writing criteria for CM proposals and evaluating such proposals is extremely difficult. Even facilities management departments of major state entities have difficulty developing evaluation criteria that does not deteriorate into subjective "popularity contest" selection.

There are few studies of the costs of similar construction management methods for public construction, primarily because the method is rarely used, though other types of construction management have been used. Such studies were done on the effects of New York State's "Wick Law." The Wicks Law mandated that public bodies in New York issue multiple construction contracts on public projects exceeding $50,000. These multiple prime contracts required that electrical, plumbing and HVAC be separate contracts, with a fourth prime contract to a general contractor for the remainder of the work. In addition to numerous problems with coordination of the work, increased change orders, disputes and delays, the New York School Boards Association in 1991 issued an impact statement estimating that the Wicks mandate increased costs from 20 to 30 percent. A study by the New York State Division of Budget in May, 1987 found that the Wicks Law increased construction costs on a variety of public buildings by 24 to 30 percent. [Note: This information comes from the American Council of Engineering Companies of New York.]

If the costs increased that much with only four prime contractors on a project, it makes sense that even more prime contractors would increase the costs at least as much if not more.

More on cost comparisons in my next blog.

General contractor v. CM, page 8

Sunday, April 01, 2007 at 5:04 PM EDT

REMINDER: all these blogs' references to construction manager are to the particular form of construction management services being used on public school building construction in which the work of the project is bid by “work packages” directly to the school district.

If the school district is using a construction manager, the CM will first establish an office at the site of the project, and will begin the paperwork trail of shop drawings, submittals, etc. This process will be similar to that of the general contractor, with crosschecks and approvals tracked. Subcontractors for site work and underground utilities will be called to the site, and work will begin. Each subcontractor from this point on will rely on the previous subcontractor to have done his work correctly. If there are errors to be corrected at any point, any subcontractor who was scheduled to follow may have a claim for delay and extra work. Many things can go wrong and must be handled by the school district. A few are listed below.

A common error is missed rebar dowels from the footing into block walls at the correct spacing. When this happens, the remedy is usually drilling holes in the footing, inserting the correct rebar at the proper spacing, and epoxying it in place. This leads to extra costs for the subcontractor in terms of both material and labor. Depending on the extent and size of the project, the masonry subcontractor may have a claim for delay and/or re-mobilization.

If a subcontractor is scheduled to arrive with his work forces on a certain day, and is not able to work due to something that occurred before, or there is not enough work area for his crew due to poor scheduling of the work, he may have a claim for delay and/or re-mobilization.

If a subcontractor has developed a cash flow problem, whether on this job or another job he is contracted to do, he may be unable to get materials delivered, or may no longer be able to hire adequate workmen to do the project. His contract is with the school district, and he is in default. Under the construction manager system, the school district must find an answer, first notifying the bonding company used by the subcontractor, and then working with the bonding company to find another subcontractor to take over the contract. In the meantime, claims by the rest of the subcontractors affected are piling up and the work is not proceeding. Even if the CM had proposed a scheduled date of completion, no such date has any validity for any subcontractor and penalties cannot be imposed.

All school districts are required in Missouri to assure that workers are paid the "prevailing wage" for their county. There is at present a $10.00 per day per workman penalty, in addition to back wages, for failure to pay this wage rate. Under the CM system, the school district is the next responsible party if a subcontractor does not pay.

All claims are the responsibility of the school district; the construction manager is only the paper pusher acting on behalf of the public owner. By law, the construction manager has only contracted with the owner to furnish his "skill and judgment in cooperation with, and reliance upon, the services of the project architect or engineer." (Missouri Statute Chapter 8, Section 8.683).

If a general contractor had been chosen by competitive bidding, all of the above responsibilities and costs would have fallen to that contractor, and the school district would still be on track to completion by the scheduled date. The school district could have specified a completion date and daily damage amount in the contract with the general contractor. This is not an option under the CM method.

Next: what does each method really cost?

General contractor v. CM, page 7

Saturday, March 24, 2007 at 3:36 PM EDT

REMINDER: all these blogs' references to construction manager are to the particular form of construction management services being used on public school building construction in which the work of the project is bid by “work packages” directly to the school district.

If the school district has done its homework and bid its construction project to a general contractor, it has signed a contract and its design team will oversee the project as part of its fee... Work begins with the general contractor doing all preliminary steps, including writing subcontracts, compiling shop drawings and material submittals, installing its project superintendent on site, and making all necessary preparation of the site such as utilities, access roads and gates, fencing and other construction barriers, construction waste disposal, safety barriers, and other items that precede actual work. The general contractor will prepare a firm schedule of work based on his plan to complete the project during established time frame. He will have analyzed the work and determined where and when he needs each subcontractor's forces. He will then keep the subcontractors aware of and committed to the schedule for all phases of the work. If a subcontractor fails to supply workers on time, or make errors in his work, the general contractor will have procedures for dealing with it. Questions that arise during construction will be directly through the contractor, then to the design team. Only if there are extra costs or non-construction questions do questions have to be handled by the school district.

When the school district has employed a construction manager, someone will have to determine whose responsibility each of the preliminary site preparations belong to. In some cases, the construction manager may have a contract with the school board that calls these items "reimbursables." The school district will not know in advance what the cost for these items will be. The CM might hire an outside firm to provide these services, might do them with its own or related forces (though this violates the state law it is difficult to prove), or might have included some of these items in the "work packages." If in the work packages, there is often conflict between the subcontractors as to who is responsible for which portions, and the CM tends to log and accumulate extra charges as the project proceeds. Subcontractors do not like to get charged for someone else's trash cleanup or utility usage, so these issues often come back to the school district at the end of the job when final payment is due. Subcontractors who feel they have been taken advantage of by the CM will not bid again. The only thing that usually avoids legal action in these cases is that the amounts are small.

More on building under a CM later.

General contractor v. CM, page 6

Tuesday, March 20, 2007 at 5:22 PM EDT

REMINDER: all these blogs' references to construction manager are to the particular form of construction management services being used on public school building construction in which the work of the project is bid by “work packages” directly to the school district.

With the general contractor method, the Specifications for the project prepared by the design firm include a contract form, typically an AIA form, which the general contractor has essentially agreed to when he bids the work. The contract will either specify the number of working days or actual date for completion that was required by the Specifications prior to bid. The pertinent information and contract amount are filled in, the contracts are signed by the school district and work proceeds. Any contracts with subcontractors and material suppliers are between those firms and the general contractor; the school district does not need to involve itself. If a subcontractor defaults, that becomes the general contractor’s problem, and he proceeds with the work as the contract requires...

With the CM method, each work package must be negotiated with each subcontractor. While the CM may use a standard AIA contract form, the detailed description of the work package under each must be accurate and complete to cover the entire project and related correctly to the other work packages. The CM may try to include a time frame or duration for the work of each subcontractor, but each subcontractor’s work is affected by the previous work of another subcontractor. Any specified time frame or duration of the project therefore becomes only the CM’s estimate, and is not legally enforceable. The CM does not sign the contracts, and has no legal or financial responsibility for the terms of any contracts other than his CM agreement with the school board. Each contract is signed directly with the school board. Any disputes between subcontractors for delays caused by another subcontractor, for missed or overlapping items, etc. become the direct responsibility of the school district. The CM is there to mediate, but is not responsible if claims are made for extra costs, court or mediation fees, and such. If a subcontractor defaults after signing a contract, eventually the performance and payment bond would kick in and cover the costs, but the delays while the bonding company finds another company to do the work and to purchase materials will not only affect that work package, but all the others. Each subcontractor will then have a claim for delays and extra costs.

Next - Building the project, General v. CM

General contractor v. CM, page 5

Friday, March 16, 2007 at 11:25 PM EDT

REMINDER: all these blogs' references to construction manager are to the particular form of construction management services being used on public school building construction in which the work of the project is bid by “work packages” directly to the school district.

The school's project has been advertised for bids and a date and time for opening of the bids have been accepted.

Under the traditional design-bid-build method, general contractors deliver their complete bid documents, along with bid bond and qualifications, to the school board. The bids are opened publicly and, if no errors or discrepancies are in evidence and the bids are within budget, the school board meets with the architectural firm and awards the contract to the lowest bidder. A contract is signed and construction begins.

Under the construction management method, subcontractors bid multiple work packages on the date and time set for the opening of bids. Subcontractors may submit bids for a single work package or multiple work packages, with bid bonds to cover the amount of work being bid. When the bids are opened, it is not immediately apparent which subcontractors are the low bidders on the work, as the overlapping bid packages will have to be analyzed. Also, some work packages may have only one bidder, while others may have several. The lowest bidder on one work package may not be the lowest bidder if another bidder has combined that work package with other work packages. Work packages that are combined may or may not break out the separate work packages, and a subcontractor may refuse to do only one work package when he has submitted a combined bid.

When a work package has only one bidder, the project is typically not rebid, as it would be if there were only one general contractor bidding. Instead, the construction manager "analyzes the bids" and decides which subcontractors to offer contracts on behalf of the school district. This system gives the construction manager a great deal of leverage to select favorites among the subcontractors. Those subcontractors who have bid one work package, were lowest bidder on that work package, yet lost the contract due to "gamesmanship" with multiple work packages refuse to bid again on this type of contract, reducing the pool of bidders even further.

If there is no bid for a particular work package, the school district has additional decisions to make. Will it allow the construction manager to select a subcontractor from among those bidding and make this work a change order; will they rebid just that work package, what other options are there? In practice, this rarely happens, because the CM knows in advance which work packages are likely not to be bid, and usually which subcontractors are bidding which packages. In today's market, very few construction firms exist as only one entity. In practice, one of the CM's “related" or "friendly" firms will bid multiple bid packages to be sure that everything is covered. This is one reason that many subcontractors avoid bidding public projects under this type of management.

Next: the contracts and the work.

General contractor v. CM, page 4

Sunday, March 11, 2007 at 4:02 PM EDT

How subcontractors view and bid – general v. const. manager

REMINDER: all these blogs' references to construction manager are to the particular form of construction management services being used on public school building construction in which the work of the project is bid by “work packages” directly to the school district.

Subcontractors bidding work packages must provide performance and payment bonds to the school district. Since most subcontractors do not provide bonds when bidding to a general contractor, the cost for such bonds tend to be 2 to 3 times higher than that of the general contractor. The extra paperwork and fees for such bonds also tend to limit the pool of subcontractors bidding the project. Only the very largest subcontractors work with a bonding agent on a regular basis and have the necessary paperwork to get bonds quickly. Also, the work of most rural school districts tends not to be all that attractive to the larger subcontractors, and they don’t like the headaches of dealing with multiple small contractors under this CM type of contracting.

When bidding to a general contractor, subcontractors do not typically bid their work by covering a complete specification section, because various work items overlap sections. They do not have the expertise to evaluate the complete plans and specifications for problems; they rely on the general contractor to do so. A material supplier may quote a complete price for his item for the entire project. [For example, reinforcing steel is used in various items of work, but the reinforcing suppliers typically quote to a general contractor all the reinforcing steel for the project as one lump sum item, and expect to deliver it accordingly; the concrete section will be used by the contractor doing the concrete work, the masonry reinforcing will be used by the masonry contractor, etc. but the general contractor will purchase and supply it where it is to be used]. In bidding work packages, the material supplier must determine which portions of his supply will be used by which contractor, and how many separate deliveries he must make. He must assess whether each subcontractor will pay on time or if he may not get paid until the end of the project. Subcontractors must include money in their bid for such items as on-site electricity, water, waste hauling, lifting, and so on which are often provided by the general contractor on typical jobs.

With all these different problems, a subcontractor will add to his price a substantial sum to cover the extra costs. This is also true for a variety of material suppliers who are used to quoting a general contractor; they do not have a track record with the subcontractors, so price accordingly. Therefore, the extra costs are piled up and the school district is the loser.

Next blog: The actual bidding and opening of bids

General contractor v. CM, page 3

Sunday, March 11, 2007 at 3:54 PM EDT

Many school boards are told that the construction manager is comparable to a general contractor, that the fee of the CM will be less than that of a general contractor, and that the CM replaces the general contractor. The fallacy here is that such comparisons don’t work when the type of work and responsibilities are compared. The differences between the two systems are significant.

Let’s compare just the bidding process of the two methods.

The general contractor receives a set of plans and specifications for the project which has been advertised for bid. He reviews the documents, decides that he wishes to bid the project, calls his bonding agent for a bid bond, and assigns an estimator to do material and labor takeoffs on the project. He solicits subcontractors and material suppliers to bid various, but not all, items of work within the documents. After a thorough review of the documents, he may ask questions of the design team, determine whether there may be a delivery problem with certain material items, or find other discrepancies which may affect the completion of the project. He then puts together a complete price, including all labor, material, equipment, storage, insurances, bonds, supervision, waste management, and any requirements that may be needed to complete the work. He will receive subcontractor bids that typically contain only parts of specification sections, list several inclusions or exclusions, and require certain services be provided by the general contractor. The general contractor will question subcontractors about their bids, determine whether there are overlapping or missing items, whether the subcontractor has the ability to complete the project within the parameters of the job, whether any particular items are critical to the schedule of completion and so forth. He may even ask a subcontractor to remove certain critical items from the subbid and buy them himself to insure that the job will not be delayed. He must make sure that every aspect of the construction project is covered, and comply with all laws of the state regarding public construction, including workers’ compensation and prevailing wage laws. His fee after all the costs are covered, including overhead, is minimal, since he will be competing against other general contractors to get the job.

The construction manager typically reviews the plans and specifications and splits the various specification divisions into “work packages” for bidding by subcontractors. Each subcontractor will have certain specification sections that they are expected to bid, plus any items covered in the general and special conditions that apply. The CM is only the administrator on the project, so can do none of the various support items of the general and special conditions which would be supplied by a general contractor.

The construction manager will often quote a ridiculously low fee, even as low as one percent; proposing in his contract terms a long list of items which the school district must fund. The “reimbursable” amounts are sometimes tied to cost data publications. These publications list national costs estimates compiled by journalists, and are useful to the industry, but must be adjusted to the area true costs, sometimes thirty-five to forty percent less than the book figures. In addition, some CM contracts may allow a percentage over the particular Cost Data source chosen for “overhead and profit” paid to the CM. These items in the aggregate would likely fall under the Missouri statute restriction on competitive bidding over $15,000., but by billing in small invoices, the CM manages to avoid the intent of the law.

The general contractor must include in his cost for the total work all the necessary peripherals to complete the project. He cannot charge extra for “reimbursables,” - i.e., the job site management trailer office, the personnel he uses on the site, the trash dumpsters, travel to multiple sites, etc.

Next blog: subcontractor bids to generals v. CMs.

Missouri school construction, p. 2

Thursday, March 08, 2007 at 2:52 PM EST

REMINDER: all these blogs' references to construction manager are to the particular form of construction management services being used on public school building construction in which the work of the project is bid by “work packages” directly to the school district.

Construction Management is a type of contracting typically used by private firms, in which a private owner chooses a firm to build its facilities. The CM firm may also employ the design team, and/or may be employed prior to the design process. A fee structure is negotiated and pricing is established, which may be a guaranteed maximum price or several other arrangements. The CM firm solicits quotes for subcontracting and other work by several methods. In private work, the CM firm will do certain types of the construction on the project with its own forces. Often, the CM starts work before the design is complete in order to do the project in the least amount of time possible. Private firms whose business income is tied to the date the facility is ready often use this type of contracting, because the savings in time actually offset any additional cost it may incur. The Construction Manager is “at-risk” in this type of contracting agreement, meaning that he actually does work and is responsible for the work he does. He is subject to various kinds of liability, builders' risk and employment law, and may be subject to actual damage penalties if he does not finish in the agreed-upon time.

In the state of Missouri, "construction manager at-risk" contracting agreements are illegal under current law for public construction. The reason for this is obvious, as the potential for conflict of interest, bribery, etc. rises where there are few or no objective criteria to select the firm to be used.

To get around the Missouri law on these agreements, some school districts have hired a "construction manager" to do paperwork and oversee their construction projects, but not do any actual construction work on the project. The CM firm is chosen based on various criteria. The selection criteria tend to be short and subjective, and leave plenty of room for interpretation. In some cases, the CM may even be involved in preparing the criteria before selection, and may be brought in early to help select the design team.

These CM firms review the plans and specifications and then separate the construction work into "work packages" for public bidding by subcontractors, rather than bidding the project to general contractors. The CM firm solicits bids for the school district, and helps prepare contracts between the school district and the various subcontractors. This process often results in the school district having contracts with 15-20 subcontracting firms. The CM firm then provides a "manager" on site to track the work and see that each subcontractor arrives to do his work according to the work package bid. If there is a discrepancy between work packages or a dispute as to the meaning of some instruction, the CM acts as mediator to solve the problem. However, the CM has no contract with the school district for any of the construction work, and under state law, CANNOT actually do such work. The CM does not provide a bond, nor can he be held responsible for errors and omissions on the project.

My next blog will discuss pros and cons of these methods.

General Contractor v Construction Manager

Sunday, March 04, 2007 at 1:37 PM EST

As a retired building subcontractor, I have been asked to do this blog to educate as many people as possible about the differences in contracting methods being used by Missouri public school districts. I am biased toward the general contracting method, as I believe that any public school board has the responsibility to act with total transparency and to avoid at all costs the appearance of impropriety.

Public school boards in Missouri are required to competitively bid for purchases, including facilities that exceed $15,000.00. When a new, remodel, or repair project is to be done, school districts hire an architectural or other design team to prepare detailed plans and specifications that meets the school's needs and budget. The architectural firm prepares the bid documents, an estimate of the cost of the work, and conducts the opening of the bids on behalf of the school board. Typically, when plans are complete, the project is advertised for bids, contractors summit bids to the school district, the bids are read in public, and, if there are no errors, the lowest bidder is awarded the contract.

Only one contractor, usually a general contractor, is employed for the work, and he is required to provide performance and payment bonds to guarantee that he completes the work for the price and time stated in the documents. The architectural firm includes in its fee the overseeing of the project, reviewing shop drawings and submittals, approving materials, inspecting the project periodically to be sure that the plans and specifications are being met, and all other details involved in managing the project.

Since the school board has already defined its needs by approving the architect's plans and specifications, the superintendent and/or the school board only needs to get involved when changes are proposed, and to make percentage of completion payments which are approved by the architect.

About Me

The first 10 parts of this blog were written in March April and May in response to a request by a group of people concerned about the failure of two school bonding votes and the fiscal management of their school district. It is copied here from the original blog source location.