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How to Bridge the Design and Construction Industry’s Legal Divide


Manage FF&E specification, procurement, and product data at scale. Take on bigger projects with confidence and grow your firm with  FohlioSchedule a demo or book a consultation with one of our account managers to explore these features today.

This article was written with Dave Fouche, one of Fohlio’s product and marketing advisers; and Bobby Bernarte, Fohlio’s product manager.

Saying that the AEC (architecture, engineering, and construction) industry is fragmented is, at this point, no different from saying the sky is blue. 

This situation has its obvious drawbacks, namely delays, cost overruns, and difficulty delivering on design intent. We’re going to discuss real-world examples of how this plays out, including solutions that have been tried in the past and ones worth trying in the future.

At the same time, it’s worth discussing how the setup is also beneficial.

Is a complete overhaul the only solution? The construction industry, such as it is, is akin to an old, lumbering elephant that refuses to do anything but, well, lumber on. Is an overhaul even an option?

Or, can we reap the benefits while mitigating difficulties?

An Adversarial System

To repeat an oft-made comparison: The construction industry is a completely different animal to, say, the airline industry. 

“In Boeing, it’s one owner. They’re building a new jet and they’re gonna build, you know, 500,000 of them and sell them for a million dollars each to all of these airline companies all over the world. They’ll design it once, build a prototype, then build a hundred thousand more,” explains David Fouche, one of Fohlio’s product and marketing advisers.

Whereas Boeing has good reason to make sure their design teams, engineers, and mechanics all work together as closely as possible, it’s almost the opposite in construction. Architects and contractors, for example, are not incentivized to help each other. In fact, it’s almost an adversarial relationship.

Learn more: Better Control and Flexibility Over External Collaborations

“The architect is getting paid by an owner to create what’s called design intent. And when they’re done, their contract is over. All they’re trying to do is cover their own butt to make sure that during construction, the architects aren’t gonna get slammed,” David says.

Sometimes, architects will get a separate contract to review the contractor’s work. But because it’s a finite scope and budget, the architect will limit his involvement to due diligence.

And here’s where it gets adversarial: If an architect goes too deep into reviewing construction, the contractor could claim delays, which could result in a lawsuit.

That’s because the contractor not only benefits financially from finishing work on time or early (less man hours to pay and more time to devote to seeking other projects), they’re also at risk of paying fines when they don’t finish within the agreed-upon timeline.

Learn more: Time and Cost Overruns: 4 Common Causes in Design and Construction Projects and How to Prevent Them

The Cost: Underdelivering

Because of the innate disconnect between design intent and the realities of construction, there’s always the risk that the building owner does not get what they expected. 

“What you don’t want to do is surprise the owner,” David says. “They walk into their building. They’re like, what the heck? I thought we picked this, I thought we agreed on this, and I’m not getting what I asked for. We used to hear that all the time. How come I didn’t get what I asked for?”

“On the contractor side,” says Bobby Bernarte, Fohlio’s product manager, “When they look at that bid or when they look at a project, they’ll look at it and they’ll scope it out a few different ways: Based on what the architect gives them, based on what I can value engineer and push to the owner.”

In fact, “They’re trying to kind of dissuade the design, or what the architect built out. Saying, well, you could save a lot more money and make more money doing it this other way. So they’ll lay it out that way and, and position it that way because they’ve already got something lined up with one of their subcontractors to install that particular, say, toilet,” Bobby further explains.

Past Fixes

So how have industry professionals tried fixing this in the past? “After 30 years being in this business, a lot of people started talking about something called integrated project delivery,” David recalls. “The idea there was that an owner would hire an architect and a contractor and whoever else. And they would work together from the beginning and that’s had some limited success, but there’s still separate entities. And the division of labor is still there.”

Bobby chimes in. “So our pitch was that we were trying to change kind of the industry, right? So subcontractors, people who drive the construction, and are the experts at what they do, we’re saying we needed to be kind of involved in the process earlier. Good in concept, right?

“But never gonna happen. The reason being, if I’m the general contractor, I have my set list of subcontractors that I know do good work and that I protect. And that list will never be shared with anybody else. Never. It’s your trade secrets.”

It’s not a zero chance, though. An integrated methodology has worked in some cases. The problem is that it takes an upfront toll on time. 

“You have a time constraint,” Bobby says. “Because these owners are like, well, I’m losing money as we’re sitting here discussing all this and taking all this time, I need an action plan. I need to move forward and we need to go. So sure, it’s good in concept if we get in there early and we discuss, but that leads to more time. And more time is more money.”

A More Mature Solution

Perhaps the answer lies not in changing the system from the top down, but simply providing more transparency, beginning with the building’s lifecycle data. For example, it makes a huge difference when changes are clearly documented.

Learn more: 3 Ways Lifecycle Data Will Massively Increase Your Building’s Value

And this is where a tool like Fohlio can help. “If you could have the contractors, subcontractors and everybody else be on the same platform, then the owner has visibility to everything.

“In the beginning, we said we wanted these toilets. They’re gonna be black and they’re gonna be this cool kick butt design from Paris. By the time we get to the end, it became something outta Home Depot. I want to know, when did it change? Who changed it? Why it was changed?

“And the thing is, it may be okay that we ended up with a Home Depot toilet versus the Paris version, but I wanna know what happened. 

“Right now, it’s just a bunch of paperwork and you don’t have any real clear visibility as to what happened. But if Fohlio could say, look, here’s your project. Not just the as-built data of where you are today, but here’s the project over time. You started with this toilet, it got swapped here, because the client changed their mind. 

“Oh really? Wait a minute. We thought the contractor was just trying to save money. Oh no. The client back here changed their mind from black to white. And the architect said, if you’re gonna do white, why are we bothering with this Paris model? Let’s switch it to this. 

“By the time that would be hugely valuable information to know, rather than the contractor just, you know, did a bait and switch. So that’s why it’s important to take all of this stuff that you specify and follow it all through construction, all of that transactions. And at the very end you’ve got that sort of medical history, if you might, of each and every component.”

With the current COVID-19 climate, another very relevant example is when selected products suddenly turn out to have 2-year lead times.

Preserving the Good: Localized Design and Construction Requirements

Let’s go back to how constructing buildings is absolutely unlike, say, constructing an aircraft. Like David says about buildings, “It’s not like a 777. You’re certainly not going to take a given design and do it, you know, 500,000 times. It’s gonna be built once.”

And, Bobby adds, “Each one has a unique set of circumstances, right? As far as a building, location, what we need to do for that. So to give you an example, I worked on the cathedral church in LA. For that church, what needed to happen was we needed to install stuff for earthquakes, right? So there’s big, giant plates on the bottom that kind of help it slide. No other church will need that in, say, the Midwest.”

David has another example, just to cement the importance of being able to localize design standards. “We designed several schools when I was in Richmond. We had this one school that everybody loved. They loved the design. So we did four of them, but each one had to be site-adapted. 

“So there was tweaks to the system, tweaks to how it worked. And one of those sites had available natural gas. The other one, they’re gonna have to use oil. Another one, they were using electric just for the heating.”

A Digital Materials Library Will Make the Difference

This is where a product-based platform like Fohlio can make the crucial difference: When you’re able to track the evolution of your products throughout a building’s lifecycle, create design standards while making it easy to be site-adapted, and have one place where your design and construction teams can collaborate and document their work, you’re ahead of the game.

Learn more: How to Create Project Templates and Product Selection Catalogues

And all without having to kill the elephant in the room.

Fohlio is a product-focused information management software for the built environment. 

Manage FF&E specification, procurement, and product data at scale. Take on bigger projects with confidence and grow your firm with  FohlioSchedule a demo or book a consultation with one of our account managers to explore these features today.

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Published Dec 20, 2021