Spearin Gap

Spearin gap is the risk owner/client carry out based on when contractor comes to the project. These risk could be minimized or entirely eliminate based on project delivery selection. Although minimizing or eliminating spearin gap open up some door for other challenges such as increasing project costs (cost of construction manger), or changing architect relationship from “agent,” keeping owner interest, to a separate entity, “design-builder”.

The Spearin gap risk is higher in traditional project delivery method, “design-bid-build” (DBB), and it reduces in “construction manager as a contractor” (CMc), and entirely eliminated in “design-build” (DB). Please note that “construction manager as an advisor” (CMa) is not separate project delivery method and it could be incorporated in any project delivery method. The elimination of spearin gap should not be the main factor on deciding project delivery method. The main factor should be client objective such as project budget, schedule, and level of proficiency of client to answer or provide feedback to the team.

Where the risk come from?

The “Spearin Gap” term comes from historic supreme court case called “United States v. Spearin” where the court ruled “if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.” The ruling is dating back to 1918, more than a century ago, and create a obligation that by providing plans and specification (prepared by an architect) to a contractor, it also warranty that the plans and specification is free of defects and sufficient for the contractor to bid and build the project.

But in many different contracts such as AIA document B101, it talks about “standard of care” which states that the architect “shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances.” This statement doesn’t require defect free documents from the architect. The difference between defect-free document and standard of care is spearin gap.

The reason for “standard of care” statement in contract document is to create standard bar to judge the performance of architecture services by comparing the architects with their colleagues, and allow this risk to be insurable by insurance company. Removing this statement, “standard of care”, render architect insurance void, removing professional liability insurance (complementary to contractor general liability insurance), putting a side any bar for judgment, and ultimately raising the price of architecture services for the architect to be self-insure. 

Spearin Gap in Project Deliveries

In Design-bid-build the spearin gap is carried out by the owner, since there is define line in design and construction. In the same delivery method, when you have multiple prime contractor (separate bid packages and owner have separate agreement with two or more prime contractor) owner still carries same amount of risk.

The spearin gap is mitigated when you have the contractor involved in design phase through construction manager as a contractor (CMc) by contractor providing cost, schedule, and constructability advice to design team early in the project. Of course CMc raises the project cost by bringing another entity early on, increasing the services, and you loose the competitive bidding advantage that you have in design-bid-build. CMc is equal to design negotiate build (DNB) which you negotiate the price rather than bidding for lowest price. In public projects (publicly funded), there is performance specification (prepared by another architect) that describe the requirements in order to have fair competitive bidding between construction companies.

In design-build, since owner has only one contract with design and construction team, it shed all his liability for spearin gap. If client wants to have some early control on DB team by using “bridging”, having another architect make design requirements for DB, it creates some spearin-gap for herself/himself than compare to pure DB.

I suggest clients to consider their needs and risks they might carry for picking project delivery method. I usually spend some time explaining advantages or disadvantage they have based on delivery method. Good selection is always based on considering all parameters.

 

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