Record Documents by Any Other Name
By Kevin O'Beirne, PE, FCSI, CCS, CCCA, CDT  
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​​The words used for common terms in design and construction are important to clearly communicate their meaning.  When different terms are used as synonyms, their distinct meanings can become muddled.  Maybe that sounds somewhat unimportant to some owners, architects, and engineers, but it can be very important to attorneys, juries , arbitrators, and professional liability insurance carriers.  Terminology matters.  Because most of us do not get much warning before we need to interact with such folks, it’s good to habitually use appropriate terminology, especially in construction contract documents, professional services agreements, and related correspondence and communications.

The term "as-built" has fallen into some disfavor over the years, especially when used for the documents the design professional may be retained to submit to the owner at the end of the project.  This is because the design professional has only a very-occasional presence at the site during construction and therefore is typically not aware of every nuance of field conditions encountered and minor dimensional variations from the requirements of the design prepared by the design professional.  If the design professional submits to the owner documents called “as-built”, it would be a very strong representation that the design professional has verified the accuracy of such documents.  Status as a licensed professional engineer or registered architect is supposed to allow others to rely on what you say and represent.
 
If the term “as-built” is still used today, it may perhaps be applied to documents the contractor is often required by contract to maintain during construction and that are to be submitted to either the owner or design professional at the end of construction.  "As-built" can perhaps be more-properly used with such documents, because the contractor is in the best position to truly record "as-built" conditions, because the contractor is onsite every day and is supposed to be building the project with their eyes open.  Regardless of whether the owner or design professional furnish the services of an onsite project representative during construction, the contractor is always more-intimately familiar with the progress and nuances of construction than is a third-party assigned to “watch” the contractor.  Whether such documents are truly accurate is not the point here—they are supposed to be complete and accurate.
 
A design professional should probably not label what they produce at the end of construction, assuming they are retained to produce it at all, as "as-builts" because the design professional has no way of knowing if the information shown and indicated on such documents is truly complete and accurate.  For the same reason, design professionals should usually not seal and sign record drawings they prepare from information furnished by the contractor and/or the owner, because the documents are not prepared fully under the direct, personal supervision of the design professional in responsible charge of the project’s design.
 
When an owner decides that the design professional’s services should not include preparing record documents from the contractor's or owner's construction mark-ups, it’s the owner's decision, presumably may consciously and in full recognition of its impacts on the future operation, maintenance, and modification of the facility.  It means the only record documents the owner has is a single set of markups by the contractor, which are easy to lose and are not as reproducible as are electronic files in CAD of BIM software.
 
In 2008, as part of the preparation for a two-day workshop on various provisions of standard contract documents in widespread use in the United States, I prepared a written comparison of the then-current provisions of AIA, EJCDC, and ConsensusDocs regarding record documents.  The workshop’s handouts compared the provisions of each entity's design-bid-build owner-contractor agreement, General Conditions, suggested Supplementary Conditions, and owner-design professional agreement.  It was an interesting comparison.  AIA A201—2017, Standard General Conditions of the Contract for Construction, says,
 
§ 3.11 Documents and Samples at the Site
The Contractor shall make available, at the Project site, the Contract Documents, including Change Orders, Construction Change Directives, and other Modifications, in good order and marked currently to indicate field changes and selections made during construction, and the approved Shop Drawings, Product Data, Samples, and similar required submittals. These shall be in electronic form or paper copy, available to the Architect and Owner, and delivered to the Architect for submittal to the Owner upon completion of the Work as a record of the Work as constructed.
  
AIA B101—2017 Standard Form of Agreement between Owner and Architect, includes the following:
  
§ 3.6.6 Project Completion
§ 3.6.6.1 The Architect shall:
.3     forward to the Owner, for the Owner’s review and records, written warranties and related documents required by the Contract Documents and received from the Contractor; and,
 
None of the foregoing actually gives a real name to the “record documents” or “as-builts” or whatever they’re called. AIA  B101—2017, Section 4.1.1, suggests potential supplementary services that may, upon mutual consent of the Owner and Architect, be included in the Architect’s scope of professional services, including:
 
§ 4.1.1.14 Conformed documents for construction
§ 4.1.1.15 As-designed record drawings
§ 4.1.1.16 As-constructed record drawings
 
AIA B101—2017 Section 4.1.1.16 uses the term “as-constructed record drawings”.  Unfortunately, AIA’s current standard contracts present no further, truly useful detail on the Contractor’s or Architect’s responsibilities for such documents.
 
The Engineers Joint Contract Documents Committee (EJCDC)—a joint venture of the National Society of Professional Engineers, American Society of Civil Engineers, and the American Council of Engineering Companies, publishes standard contract documents for engineer-led work, which are most-commonly used on public infrastructure projects in the United States.  EJCDC C-700—2018, Standard General Conditions of the Construction Contract, includes:
 
7.12   Record Documents
A.   Contractor shall maintain in a safe place at the Site one printed record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, written interpretations and clarifications, and approved Shop Drawings. Contractor shall keep such record documents in good order and annotate them to show changes made during construction. These record documents, together with all approved Samples, will be available to Engineer for reference. Upon completion of the Work, Contractor shall deliver these record documents to Engineer.
 
EJCDC  E-500—2014, Agreement between Owner and Engineer for Professional Services (the most-recent edition at the time of this writing; a new edition is due in 2019) includes the following as part of the Engineer’s basic construction phase services (Paragraph A1.05.A):
 
22.  Contractor’s Completion Documents:  [Engineer shall] … Receive from Contractor, review, and transmit to Owner the annotated record documents which are to be assembled by Contractor in accordance with the Construction Contract Documents to obtain final payment.  The extent of Engineer’s review of record documents shall be to check that Contractor has submitted all pages.
 
 E-500—2014, Paragraph A2.01.A, suggests the following as optional, “additional services” that may be part of the Engineer’s scope:
 
17.  Preparing Record Drawings, and furnishing such Record Drawings to Owner.
18.  Supplementing Record Drawings with information regarding the completed Project, Site, and immediately adjacent areas obtained from field observations, Owner, utility companies, and other reliable sources.
19.  Conducting surveys, investigations, and field measurements to verify the accuracy of Record Drawing content obtained from Contractor, Owner, utility companies, and other sources; revise and supplement Record Drawings as needed.
Thus, EJCDC uses the terms “record documents” and “record drawings” to describe both what the Contractor prepares during construction and any derivative documents the Engineer may be retained to prepare and furnish to the Owner.  The optional language of E-500—2014 Paragraph A2.01.A.19, which are optional, “additional services”, suggests that performing field measurements, field verification, and surveys of post-construction conditions is typically not part of the Engineer’s services.  Indeed, this writer has seen owners authorize such services by their design professional consultant perhaps once or twice in over 30 years of experience.
 
Interestingly, neither AIA nor EJCDC uses the term “as-built”.  The term “as-constructed” in AIA B101—2017 Section 4.1.1.16 probably refers to post-construction rather than literally meaning, “as constructed”, although the exact meaning is unclear.
 
Thus, considered above are the use of the terms “as-built”, record documents” and even “as-constructed” in the two most-commonly-used standard contracts in widespread use in the United States.  Occasionally, people in the industry will come up with new terms for old things.  As just one person’s opinion, I don't see the need to invent new terms for "record documents".
 
What is needed, however, is greater understanding among architects, engineers, and owners of the nuances of the terms “as-built” and “record documents” and similar terms, and proper use of them.  Furthermore, although it is rightfully a topic warranting more-detailed discussion (not presented here), in this writer’s view, design professionals should never seal and sign record documents developed from information furnished by the contractor or  the owner, because the design professional has no way of verifying the completeness or accuracy of the information presented by parties not under the direct, personal supervision and control of the design professional in responsible charge.  In certain jurisdictions, such as North Carolina (in an interpretation rendered by the North Carolina PE Board, applicable to engineers), record documents should be sealed and signed.  In other circumstances, the professional services contract expressly requires that the design professional seal and sign the record documents.  In such circumstances—given every state’s design professional laws and regulations that forbid engineers, architects, and geologists from sealing and signing instruments of service not prepared under their direct, personal supervisory control—it would likely be advisable for the design professional’s seal and signature on record documents to be accompanied by appropriate disclaimer language applied adjacent to each instance of the seal and signature.  Various entities, including the American Institute of Architects, have online papers and guidance documents devoted to the topic of whether design professionals should seal and sign record documents, as-builts, or whatever the heck they should be called.
 
In conclusion, when it comes to the design professional’s instruments of service—regardless of whether a seal and signature is applied—a name is not just a name.  Rather, it’s really supposed to mean something and could, by implication, be giving the owner or the public assurances on which they may be entitled to rely.  Therefore, use appropriate terminology consistent with applicable contracts, laws and regulations, and your professional liability insurance policy.
 
© 2019 by Kevin O’Beirne.  Used with permission of the author.  Nothing in this article constitutes legal or insurance advice; readers are advised to consult with their own legal counsel and insurance carrier on the matters addressed herein.
 
Kevin O’Beirne is a professional engineer licensed in NY and PA with over 30 years of experience designing and construction water and wastewater infrastructure for public and private clients.  He is the national manager of engineering specifications at HDR Engineering, Inc.  He is a member of CSI’s Buffalo-Western New York, Chapter and may be reached at [email protected].




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