April 15, 2019
It comes as no surprise that certain issues keep resurfacing. It is only a small number of either owners or architects who continue to misuse certain terms, clauses, and processes that are included in all CCDC contracts.
One that is a continual source of contention is the use of Supplemental Instructions (sometimes confused with Site Instructions). We have commented a few times over the past years on the misuse of this process.
In the CCDC2 document under definitions, Supplemental Instructions are defined under number 21. This is in line with the definition contained in the architect's handbook. A supplemental instruction does not involve adjusting the contract price or contract time but addresses clarifications contained within the specifications drawing schedules, etc. It is simply to be issued by the consultant to supplement the contract documents as required for the performance of the work.
Below is the section found in the Canadian Handbook of Practice for Architects which provides a very clear definition of what supplemental instructions are intended to be used for.
6 - Supplemental lnstructions
The architect (sometimes with the assistance of consultants) issues SupplementaI Instructions to clarify or interpret the contract documents. SupplementaI Instructions can also be issued to provide direction to the contractor concerning a problem which may have resulted during the course of construction. If the SupplementaI Instruction involves changes to the contract price or to the contract time, the architect should issue a Change Order or Change Directive.
Refer to CCDC 24, A Guide to Model Forms and Support Documents (for use with CCDC 2), for the information to be contained in a Supplemental Instruction and for a sample form.
It is our belief that this is an extremely clear definition on how Supplemental Instructions are to be used, yet despite this, a few architects try to circumvent the proper system and use them to obtain pricing instead of using a proper change order or change directive.
We have raised this issue a number of times over the years and we continue to do so, most recently on two projects on behalf of two separate members. One member has felt sufficiently discouraged by the architect's response and continued misuse of these Supplemental Instructions that he has filed an official complaint with the Ontario Association of Architects.
The OAA has an effective dispute and complaint process that contractors can use when they feel that an architect has failed to comply with the industry's practices. Members can obtain a copy of this process and how to use it from the OGCA.
There is no doubt that these instructions are not to be used for changes in the contract price or the contract time. Instead, the process of a contemplated change notice (CCN), change directive (CD), and change order (CO) is the only legal and official system outlined in CCDC contracts. Unless altered by a supplementary general condition, the general contractor should never carry out work that results in a change to contract time or price without a change order.
In our experience, it has been shown that contractors who have later tried to rely on a supplementary instruction or a site to obtain payment have found it not only difficult, but unenforceable in a court of law.
Yet time and again, we find some few architects continue to defend this process that they are simply trying to get information when, in fact, they are soliciting pricing and information from the General, his subs, and suppliers, without properly recognizing the need of a change order or change directive.
We have seen, in fact, that when a contractor goes along with this fishing expedition and the consultant decides they don't like the information that's been provided, they will rely on a change directive to simply order the general under the contract to proceed with the work, and in our opinion, legally the general has no choice but to proceed because that is the contract they signed.
What this tells us is we are in for a dispute at the end of the job!
When the general, along with his suppliers and subs, researches a change disguised as a Supplementary Instruction, they have gone to considerable trouble to provide pricing and impact conditions that this change will have on the project.
No matter how you dress it up, the definition of this term is very clear. It is to be used to clarify or interpret the contract documents. The clause specifically says that if there are changes to the contract price and the contract time, the architect should issue a change order or change directive. And again, we find a few architects hiding behind the supplementary instruction or site instruction to obtain information that should be more effectively and properly provided through a contemplated change notice, change directive or change order.
We advise our members that under no circumstances should you agree to proceed with work other than for clarification purposes that is included in a Supplementary Instruction. Not only are you putting yourself at risk, but you are creating a situation that may lead to a dispute with the owner at the end of the project.
The OGCA will continue to oppose this particular use of Supplementary Instructions. We will advise members of the outcome of the grievance filed by our member with the OAA, whatever the outcome.
As I have said over and over again, we are the only ones who can stop the spread of bad practices in our industry. Simply going along to get along has led us into nothing but trouble over the years. We have contracts for a reason:we have definitions of the terms used in these contracts for a reason. The architect's handbook provides instructions for a reason. Therefore, we encourage generals not to bow to any undue pressure to improperly use a Supplementary Instruction. Under the contract, you are in the right. Ask for and demand that change orders and change directives be used in the proper manner as understood by the industry.
For further information, feel free to contact the OGCA.
The OGCA President and the Association do not purport to offer legal advice. Rather, we provide information based on the knowledge we have obtained through the industry. If architects, owners, or contractors wish to review this from a legal standpoint, we recommend contacting a lawyer knowledgeable with construction law.