Reprinted from August 2007 Brickerconstructionlaw.com

Earlier columns have discussed standard industry form construction documents and specific terms of these documents. With the increased availability of funds for co-funded Ohio School Facilities Commission school facilities projects, we turn our attention to the types of documents used by the OSFC for its projects. 

The OSFC oversees two types of school construction projects: (1) co-funded projects (the Classroom Facilities Assistance Program, the Vocational Facilities Assistance Program, the Exceptional Needs Program, the Extreme Environmental Contamination Program, and the Accelerated Urban Program, each with its own obvious acronym), for which both the District and the Commission contribute their percentage of project costs for the design and construction of the project, and (2) projects funded entirely by the District with the expectation that the District will qualify for a co-funded project in the future (the Expedited Local Partnership Program) and receive a credit for the funds expended for qualifying expenses on the earlier project. 

For projects funded entirely by the District, the Commission does not require a specific type of document for professional agreements or construction contracts. Boards of education can work with the standard industry documents published by the American Institute of Architects (AIA) or the Engineers Joint Contracts Documents Committee (EJCDC), with modifications to fit Ohio statutory requirements for public construction projects and to address the multiple prime project delivery method, when applicable. For these school construction projects, like construction projects of any size and scope, the contract documents should address many of the concerns discussed in prior columns, as well as those statutory requirements applicable to public construction.

The Commission does, however, provide basic documents for use with co-funded projects. These documents are similar to construction documents prepared by the State Architect’s Office for State construction projects and include provisions that address, among other things, the unique co-ownership roles of the Board of Education and the Commission, State requirements that apply to the co-funded project, and specific dispute resolution procedures and jurisdiction for resolving disputes.

Professional Agreements

The District is responsible for selecting the architect to design the project. For use with co-funded projects, the Commission provides a Professional Design Services Agreement form. The District, with its construction counsel, negotiates the compensation and prepares the agreement, which is then approved by the Project Administrator assigned to the Project by the OSFC and by the Commission itself. 

Modifications to this agreement must be made by amendment with the approval of the Commission. Items outside the scope of the co-funded project may be addressed as additional services in the agreement (if these items are part of the co-funded improvements, such as additional classroom space or an attached auditorium); if the improvements are separate from a co-funded improvement (e.g., athletic fields or a transportation/maintenance building), then the architect’s services must be covered through a separate agreement. As when other families of documents are used, it is important that the design services agreement coordinate with the construction documents used for the project, and with the construction management agreement when a construction manager is used.

At this time, all co-funded projects are built using the services of a construction manager. The Commission selects the construction manager and negotiates the agreement and compensation with the construction manager. If the District uses the services of the construction manager for improvements that are not included in the co-funded Master Plan, then the District is responsible for the compensation for services related to those improvements. The District will be asked to sign off on an amendment to the construction management services agreement between the Commission and the construction manager, stating that the District agrees to be responsible for the cost of services related to these items.

Construction Contract Documents

The OSFC also provides basic standard construction contract documents for use on the co-funded project. These include a notice to bidders, instructions to bidders, bid guaranty and contract bond, bid form, contractor contract, general conditions, definitions, equal opportunity employment requirements, delinquent personal property tax affidavit, EDGE business participation form, and Declaration Regarding Material Assistance/Nonassistance to a Terrorist Organization. In addition, many construction managers, working with legal counsel, will suggest special conditions that are applicable to the District’s project, which may modify or supplement any of the standard provisions in the OSFC’s documents. 

These documents are all published in a Project Manual provided to bidders with the drawings and technical specifications for the project. The only document among these forms with project-specific information for bidding purposes is the notice to bidders, which can be reduced to a short form advertisement for the required publication in the local newspaper of general circulation for bidding. We suggest that other forms be completed with project-specific information for distribution to bidders, rather than publishing them with blanks for District information. 

While the statutory bidding requirements for school districts as defined in Ohio Revised Code § 3313.46 apply to OSFC projects, some additional state requirements must also be included. For example, domestic steel use requirements, as specified in Ohio Revised Code § 153.011, must be referenced in the published advertisement for bids. The contractor must provide a certificate of compliance issued by the Ohio Equal Employment Opportunity Office and show compliance with applicable EEO requirements. A contractor must show compliance with EDGE business participation goals and must complete the Commitment of EDGE Business Participation form included in the Project Manual. 

Contracts for school district construction projects are awarded to the lowest responsible bidder. OSFC projects also incorporate the lowest responsive and responsible bidder criteria from Ohio Revised Code § 9.312, as well as the bidder rejection process defined in that statute. 

The analysis of a bidder’s responsibility must be based upon announced criteria. These criteria are included in the Instructions to Bidders document, which provides information to the bidder about the process for submitting a bid, legal requirements applicable to the bid and contract award process, and how a contract will be awarded. 

The OSFC adopted a set of additional criteria at its July 26, 2007, meeting (an update to criteria adopted in March of this year), which school districts can include as further definition of the requirements or criteria for measuring a contractor’s responsibility to perform the specified work. As stated in the OSFC’s Model Responsible Bidder Workforce Standards, these criteria can be adopted in whole or in part without further review and approval by the OSFC’s legal counsel. Additional standards or modifications of any of the model standards can be added to those listed in the Instructions to Bidders document only with the approval of the OSFC’s legal counsel. No changes to the bidder responsibility standards should be made without consulting the District’s legal counsel.

We highly recommend that the District require the project construction manager to coordinate with the District’s construction counsel the completion of the contract documents included in the project manual published for bidders. Such coordination should ensure that correct versions of the forms are used and that appropriate project-specific information is included. There may be other documents that the District’s construction counsel may recommend including (such as a contract bond form to be used if the bidder submits a bid guaranty in a form other than the combined bid guaranty and contract bond form).

As with any contract documents, the OSFC form documents provide processes and timelines that must be followed during the construction process. For example, the general conditions document includes very specific scheduling requirements relevant to the multiple prime contractor delivery method. In addition, there are timelines for notices to be provided by contractors if there are changes to the time and cost of the contractor’s contract. 

The District can provide a 72-hour notice to the contractor “if the contractor provides defective work or fails or neglects to prosecute the work with the necessary diligence so as to complete the work within the time specified in the contract documents.” This is an important mechanism for the District to use to keep the project on schedule. If the contractor is unable or unwilling to perform the work as scheduled in the contract documents, it can permit the District to supplement the contractor’s work (at the contractor’s cost) in order to achieve completion. 

The OSFC documents also include a formal partnering process that is used for the professional team and the contractors. Dispute resolution does not include mandatory arbitration. The process begins with the contractor submitting a request for an equitable adjustment to the contract amount or time; the request is considered at the jobsite level, and every attempt is made to resolve it at this time. If the parties are not successful, alternate dispute forums are encouraged, such as through further discussions with responsible persons of each interested party, intervention sessions facilitated by an independent party, or perhaps mediation efforts. 

Although the OSFC’s basic form documents address many common construction situations and protect the interests of the co-owners of the project, it is still important for the District to use its construction counsel in the document preparation stage and beyond. Working together, the District and its counsel can be sure that the appropriate documents are used for the various aspects of the project and the processes defined in the contract documents are followed. Such assurance will make it more likely that the contractors will meet their contractual obligations to complete the work and deliver a complete and usable project, built consistent with the quality standards expected of the District and the OSFC.