Issue link: https://cp.revolio.com/i/522582
www.datacenterjournal.com 8 | THE DATA CENTER JOURNAL t his matter is further compli- cated by the variety of construc- tion delivery models utilized in complex construction projects (design-bid-build, design-build, design-assist, etc.). While some may argue common practice and common sense to enforce performance, these arguments may fall short in creating a legally binding enforcement mechanism. ere should be no argument that a well written contract that concisely and clearly outlines the important contractor roles and respon- sibilities is the best available method to communicate expectations and among the best defenses available against contractor non-performance. A contractor, by definition, is a person or entity who enters into an agree- ment to perform the work described in a contract. In the case of a construction contractor, the agreement is typically to perform construction services under a construction agreement. e construction agreement may consist of multiple docu- ments, and collectively, is oen referred to as the contract documents. As a result, the responsibilities of the contractor can be clearly identified by reviewing contract documents. Since, the requirements for individual projects, owners, and local authorities having jurisdiction may cause large variations in the legal structures and provisions put in place in a construction agreement, a contractor's responsibilities may vary dramatically from one agree- ment to another. e following sections attempt to highlight some important contractor responsibility areas, as well as some areas that are not a contractor re- sponsibility, to allow for effective contract management. CaPaBility to Perform Contract requirements may vary dramatically due to a variety of reasons in- cluding project complexity, sophistication of the contract writer, and requirements of local authorities. However, inherent in any construction agreement is the contrac- tor responsibility to have the capability to perform the requirements of the contract documents. Few, hopefully if any, will en- ter into such an agreement with the intent of non-performance. An owner's thorough qualification of a contractor's capability to perform is an important step in ensuring the contrac- tor's fulfilment of the responsibilities and duties outlined a construction agreement. While this responsibility of the contractor may sound abstract, it can be objectively assessed by reviewing the following areas: • Financial resources (or access to financial resources, such as a trade line of credit) • Human, equipment, facilities, and other resources • Organization, accounting, and operational controls • Experience and past performance record • Technical skills and production capabilities. means anD methoDs Means and methods is a term used to describe the day-to-day activities that a contractor must employ in the execution of construction required by the contract documents. "Means" typically refers to how tasks are accomplished to achieve the desired design implementation. "Methods" are typically related to scheduling and resources required for project execution. Means and methods broadly describes nearly the entirety of the responsibilities of the contractor, which also lends itself to an abuse of the term. However, a good understanding of what constitutes a means and methods will assist in good contract enforcement. Design professionals (architects and engineers) are generally not responsible for specifying construction means and methods. is discretion is oen le, and rightfully so, solely to the contrac- tor. e contractor should be best suited to understand the day-to-day activities required to perform a job. However, that is not to say that means and methods cannot be specified or prescribed. In data center construction, oen designers must under- stand the means and methods required in the construction process to allow for an intricate series of events that must happen in a particular order to avoid unintended downtime to critical operations. Even so, owners and design professionals must understand that an overly strict prescribed means and methods may limit the contrac- tor's ability to perform the work quickly and efficiently. e term means and methods may be abused by a design professional that requires, by specification, temporary provi- sions to ensure uninterrupted service to critical loads. However, if no means and methods are available to allow for such temporary provisions, the designer has not performed adequately in the design re- sponsibility and cannot fairly claim that the contractor has sole responsibility in this case. Sometimes, in the opposite extreme, the designer may impose overly strict specifications for means and methods that severely restrict the contractor from utiliz- ing the contractor's ability and technical skill to effectively and efficiently complete a job. In today's climate of safety first, prescribed temporary means and measures may be physically possible but represent safety risks that are not recommended by a contractor. As a result of means and measures being the contractor's responsi- bility, safe construction practices are also the contractor's responsibility. Contractors may justly have claim to push back on the right to establish proper means and meth- ods to perform the duties of the job. While the means and methods may sometimes be prescribed by an owner or a design professional, it should be clear that the means and methods remains the responsibility of the contractor. In data center contracting, owners and design pro- fessionals oen require written planning of means and methods to be submitted for owner and/or design professional review. Contractors may incorrectly assume that the owner or design professional has taken responsibility for a means and methods. While the design professional may be a good source for technical review, it should not be assumed that review ap- proval means the design professional has taken responsibility. Moreover, the design professional does not assume responsibility even if the design professional may have observed or participated in the means and methods, as in the case of an onsite witness test. Likewise, an owner may require final approval and observation of all activities,