Modifying the Construction Documents

Volume 4, Chapter 5

Please note that all documents referenced below can be found within the Construction Contracts page for each contract Family.

INTRODUCTION

Requirements for modifying or adding to the University's standard construction documents are set forth in this chapter. Use the information in this chapter along with the Cover Sheets and Instructions preceding each document in Construction Contract templates to modify the individual documents. Only proposed changes to the core documents (General Conditions and Instructions to Bidders) should be sent for review to the Office of the General Counsel and Capital Resources Management at the Office of the President.

Modifications of the approved construction documents are often required for the following reasons, each of which is described in this chapter:

  • Construction documents are improved.
  • A contracting mode other than complete plans and specifications is used.
  • Special project applications exist.
  • Special project circumstances apply.

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5.1 IMPROVEMENTS TO THE CONSTRUCTION DOCUMENTS

The construction documents have been written to address current requirements of typical University construction projects both new construction and alterations. However, the University is committed to the ongoing improvement of its construction documents to meet changing needs that result from matters such as government regulations, legislation, insurance, and user experience. The Office of the President receives and considers proposed document changes from the Facilities; unless changes are considered urgent, all changes for improvement will be made yearly.

5.1.1 Interim Improvements Made by Letter

In the interim period between the switch from the existing Facilities Manual to the newly revised Facilities Manual, Volumes 1-6, several improvements to the University construction documents have been issued by letter from the Office of the President to the Facilities. 

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5.2 DOCUMENT CHANGES RELATED TO CONTRACTING MODE

Choosing a contracting mode other than complete plans and specifications (see 1.1) will require modification of the University's standard construction documents.

5.2.1 Using the Complete Plans and Specifications Mode

Since the standard construction documents have been written for single-contract projects using the complete plans and specifications contracting mode and a stipulated sum basis for payment, no changes are required for this mode of contracting.

5.2.2 Modifications for the Design-and-Build Mode

The design-and-build contracting mode requires changes to the core and non-core documents listed below. For each document, the degree of changes required is also indicated. Samples of these documents are available from the Office of the President. The Office of the President is available to assist the Facility in developing the final documents.

Document Degree of Changes Required
Table of Contents Major
Advertisement for Bids Major
Instructions to Bidders (core document) Major
Supplementary Instructions to Bidders Minor
Bid Form Minor
Agreement Minor
General Conditions (core document) Minor
Supplementary Conditions Minor
Specifications, Division 1, General Requirements Minor
Specifications, Divisions 2 through 16 Performance specifications used
List of Drawings Not used
Drawings Small-sized sheets used
Design Criteria New document
Program Requirements New document
Evaluation Procedures New document
Design-Build Competition New document

5.2.3 Modifications for the Construction Manager Mode

Two types of contracts can be used with the construction manager contracting mode; both require changes to some core and non-core documents. Among the conditions that determine the type of contract are the following: 

  • Multiple contracts
  • Phased construction
  • Cost-plus-fee contract sum
  • Guaranteed maximum price

The changes required when construction management is provided by a consultant and when it is provided by a contractor are listed below. For each document listed, the degree of changes required is also indicated. Samples of these documents are available from the Office of the President. The Office of the President is available to assist the Facility in developing the final documents.

Construction Management by Consultant:

Document Degree of Changes Required
Table of Contents Minor
Advertisement for Bids Minor
Instructions to Bidders (core document) Moderate
Supplementary Instructions to Bidders Minor
Bid Form Minor
Agreement Moderate
General Conditions (core document) Moderate
Supplementary Conditions Minor
Specifications, Division 1, General Requirements Moderate

Construction Management by Contractor:

Document Degree of Changes Required
Table of Contents Moderate
Advertisement for Bids Moderate
Instructions to Bidders (core document) Major
Supplementary Instructions to Bidders Minor
Bid Form Major; all work must be competitively bid
Agreement Moderate
General Conditions (core document) Major
Supplementary Conditions Moderate
Specifications, Division 1, General Requirements Moderate

5.2.4 Modifications for the Cost-Plus-Fee Mode

The cost-plus-fee contracting mode requires changes to the core and non-core documents listed below. For each document, the degree of changes required is also indicated. Samples of these documents are available from the Office of the President. The Office of the President is available to assist the Facility in developing the final documents.

Document Degree of Changes Required
Advertisement for Bids Minor
Instructions to Bidders (core document) Moderate
Supplementary Instructions to Bidders Minor
Bid Form Major
Agreement Minor
General Conditions (core document) Major
Supplementary Conditions Minor
Specifications, Division 1, General Requirements Minor
Specifications, Divisions 2 through 16 Possibly outline specifications
List of Drawings Possibly schematic drawings

5.2.5 Modifications for Other Contracting Modes

Contracting modes—other than the complete plans and specifications, design-and-build, construction management, and cost-plus-fee modes—have been used by the University. Construction documents for these other contracting modes are usually developed for a special project on a one-time-use basis. The Office of the President keeps a list of projects that have been accomplished using these customized contracting modes along with a set of the documents used for each. The Office of the President is available to assist the Facilities in developing customized construction documents.

Approval by the President is required before other contracting modes are used because permission for their use has not been delegated to the Facilities.

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5.3 SPECIAL PROJECT APPLICATIONS

Special project applications, including special funding, may require changes to both core and non-core documents. Core documents are modified by adding articles to the Supplementary Instructions to Bidders or the Supplementary Conditions. The Office of the President must approve such modifications.

The Office of the President is available to provide the assistance necessary to develop the construction documents. Special project applications should be determined early in the development of the project.

5.3.1 Federally Funded Projects

References: 

Public Law 101-136, Section 623.Recipients of federal agency grant funds must follow specific requirements if such funds are to be used to procure goods and services, including construction services, valued at $500,000 or more. Public Law 101-136, Section 623, also known as the Warner Amendment, enacts these requirements and reads as follows: 
Section 623. (a) No amount of any grant made by a federal agency shall be used to finance the acquisition of goods or services (including construction services) unless the recipient of the grant agrees, as a condition for the receipt of such a grant, to
  • (1) announce in any solicitation for offers to procure such goods or services (including construction services) the amount of federal funds that will be used to finance the acquisition for which such offers are being solicited; and

    (2) express the amount announced pursuant to paragraph (1) as being a percentage of the total costs of the planned acquisition.

  • (b) The requirements of subsection (a) shall not apply to a procurement for goods or services (including construction services) that has an aggregate value of less than $500,000. Public Law 101-136, Section 623.

For projects using federal grant funds, items (1) and (2) above must be satisfied by adding appropriate language to the Advertisement for Bids.

5.3.2 State Revenue Bond-Financed Projects

Standard Long Form construction documents must be changed in response to the federal Tax Reform Act of 1986 and to adapt the documents to changes made in the state of California's process of financing state revenue bond-financed projects. The Office of the President has developed a set of construction documents that incorporate the required changes. Diskettes containing these documents are available from the Office of the President.

The following Long Form construction documents must be modified for state revenue bond-financed projects:

  • Advertisement for Bids
  • Supplementary Instructions to Bidders
  • Bid Form
  • Agreement
  • General Conditions
  • Supplementary Conditions
  • Exhibits 2 and 3 (Payment Bonds and Performance Bonds)

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5.4 SPECIAL PROJECT CIRCUMSTANCES

Special project circumstances (presented in this article alphabetically) may require modifications of both core documents and non-core documents. Detailed completion and modification instructions for the circumstances that follow are given on the Cover Sheet and Instructions that immediately precedes each construction document model in Construction Contract templates.

5.4.1 Allowances

An allowance is an amount established in the contract documents for inclusion in the contract sum to cover the cost of prescribed items not specified in detail, with the provision that any variation between this amount and the final cost, if higher, of the prescribed items, will be made by change order to appropriately adjust the contract sum.

Limit the use of allowances to designs, services, or construction elements—such as creative design, modeling, or sculptural work related to a project—that are not specifiable enough to allow competitive bidding or for a part of the work to be competitively bid after the award of the contract. If an allowance is to be made for parts of the work that will be competitively bid after the award of the contract, contact the Office of the President for the required text to be added to the construction documents.

When allowances are used, the following documents require modification: 

  • Bid Form
  • Specifications

5.4.2 Alternates

Ideally, the total bid price should cover the scope of a complete project without the need for alternate bids. However, if alternates are requested, they should be used with discretion, held to a minimum, carefully prepared to minimize bidder confusion, and coordinated with the Specifications and the Drawings.

Two reasons for requesting alternate bid prices are:

  • To adjust the scope of the work so the contract sum will be within the budget.
  • To allow a decision to be made between two materials or methods of different values.

Alternates should be all deductive or all additive, as follows: 

  • Additive used to obtain the maximum work for the available budget. This method assumes that the total bid price received could be below the budget, and that the contract sum could be increased to match the budget figure through the execution of the alternates. However, this method may raise questions from the funding agencies about whether these additions increase the approved scope of work or embellish the project.
  • Deductive used as a means to bring the total bid price within the budget.

In addition, the presence of alternates may affect the selection of the lowest responsible bidder (see FM5:7.3.2).

When alternates are used, the following contract documents must be modified (the Mini Form does not utilize alternates):

  • Bid Form
  • Agreement
  • Specifications
  • Drawings

Post-Award Alternates. A post-award alternate is an alternate that is exercisable for a stipulated period from the bid deadline or from the date of contract award. This type of alternate is used when the possibility of attaining additional funds at a date after the bid deadline or contract award is known or highly probable. Since the alternate is not exercised until after award of the contract, it is not a basis for the award. The University has successfully used post-award alternates on several projects.

The Bid Form and Agreement already have appropriate text to allow for post-award alternates.

When post-award alternates are used, the following document must be modified (the Brief Form does not utilize alternates):

  • Specifications

5.4.3 Asbestos Abatement

When a project involves asbestos abatement, the following document must be modified: 

  • Specifications

5.4.4 Assignments

In addition to assignments of responsibility to other parties that are developed during construction (see FM5:11.4), assignments are occasionally made part of the bidding documents. This situation occurs when the University awards a separate contract for portions of the work, materials, or equipment before the complete project is bid and later assigns that separate contract to the general contractor for the project. This procedure is really a version of the "fast-track" project delivery method and has been successfully used for structural steel, elevators, and other portions of the work. The separate contract for the structural steel, for example, is awarded before the design is complete. By the time the design is complete and ready to be bid on, the structural steel has been ordered and delivered; no time has been lost waiting for the structural steel.

When assignments are used as described above, the bidding documents for both the separate contract and the general contract must be extensively revised. Modifications to documents for the separate contract inform the bidders that their contract will be assigned to a not-yet-selected general contractor. Modifications to documents for the general contract inform the general contract bidders of the complete, separate contract data.

When assignments are used, the following documents require modification:

  • Advertisement for Bids
  • Supplementary Instructions to Bidders
  • Agreement
  • Specifications

In addition, depending on the type of Assignment Agreement used, one of the following new documents must be added:

  • Assignment of Work Agreement (Separate Contract and Completed Example) - Long Form (see RD1.2)
  • Assignment of Materials or Equipment Agreement (Separate Contract) - Long Form (see RD1.3)

5.4.5 Bidder Prequalification

When bidder prequalification is used, the Long Form Advertisement for Bids is replaced by the Advertisement for Contractor Prequalification which generally explains the prequalification process. The Advertisement for Contractor Prequalification informs bidders that prequalification documents (the Prequalification Questionnaire) will be issued to interested bidders, and that bidding documents will be issued only to prequalified bidders. A Prequalification Evaluation form is used by the Facility to evaluate the bidders. Additionally, when prequalification is used, the following document must be modified (all documents mentioned above can be found on the Construction Contracts page):

  • Supplementary Instructions to Bidders

5.4.6 Bidder Qualification

When bidder qualification is used, the following documents must be modified (see FM5:4.4.2):

  • Advertisement for Bids
  • Supplementary Instructions to Bidders

5.4.7 Code Requirements, Optional

In addition to the codes listed in Specifications, Division 1, Section 01060, Regulatory Requirements, the contractor may be required to comply with additional codes or standards such as the National Electric Code or the Standards of the American Welding Society; in these cases, modify Section 01060 to include the additional codes or standards.

5.4.8 Early Completion Bonus

References:

California Education Code, Section 92050.

The California Education Code allows The Regents to provide for the payment of a bonus to the contractor for early completion of a project. The most practical use of a bonus is to reward the contractor for completing a project before a specified date rather than within the contract time. The specified date might be that required for dormitory occupancy or for opening another revenue-producing facility.

When an early completion bonus is offered, the following documents must be modified:

  • Supplementary Instructions to Bidders
  • Agreement

A bonus stipulated for early completion is not a prerequisite for an enforceable liquidated damages clause (see FM5:15.6).

5.4.9 Construction Sequence

The construction sequence is usually the responsibility of the contractor and should be shown in the construction schedule, which requires approval by the University's Representative. When the Facility or the design professional requires a special construction sequence, the following document must be modified: 

  • Specifications

5.4.10 Contractor's Statement of Experience and Financial Condition

Use of the Contractor's Statement of Experience and Financial Condition is optional with Long Form contracts, is not anticipated to be used with the Brief Form, and should not be used with the Mini Form (see FM5:8.5.3).

When the Contractor's Statement is used, it is submitted with the signed Agreement and other documents as required by the Notice of Selection as the Lowest Responsible Bidder, and the following document must be modified:

  • Supplementary Instructions to Bidders

5.4.11 Hospital Projects

Hospital projects, both new construction and remodeling, entail special procedures required by hospital administration and by the Office of Statewide Health Planning and Development (OSHPD). OSHPD is required by state law to enforce building standards related to hospital development (see 6.2.3).

When the work involves new construction or remodeling for hospitals, the following documents must be modified:

  • Supplementary Conditions
  • Specifications

5.4.12 Incremental Funding of Single Lump-Sum Contracts

Incremental funding allows the University to enter into a contract to have a facility built over a period of years for a fixed total price, but limits the University's financial obligation at any one time to the amount of funds currently available and allotted to the contractor. Project funds that are not available when the project is bid become available during subsequent fiscal years or at some other intervals.

The University has used incremental funding on projects because this funding method presents several advantages. Since the project does not have to be divided into multiple contracts awarded in sequential fiscal years, cost savings are realized in design, management, and construction. In addition, shorter completion schedules are usually obtained.

Regents' approval is required for incremental funding because The Regents have not delegated the authority to award projects in excess of appropriated funds.

When a Facility believes that the use of incremental funding may be advantageous, the procedures below should be followed: 

  1. Determine whether incremental funding is possible. The Office of the President will help the Facility make this determination.
  2. Determine whether there are advantages in using incremental funding.
  3. Obtain Regents' approval to use incremental funding.
    1. Obtain a sample Regents' agenda item from the Office of the President.
    2. Submit a Regents' agenda item to the Office of the President.
  4. Adapt the construction documents for incremental funding. The Office of the President will supply sample documents.

5.4.13 Irrevocable Bid Period, Changing

The Facility may increase or decrease the irrevocable period from the initial 60 days (see 4.5.1). The minimum period would be determined as the time required to process the bidding documents and secure the required approvals. If a time period other than 60 calendar days is used, the following documents must be modified:

  • Supplementary Instructions to Bidders
  • Bid Form

5.4.14 Daily Rate of Compensation for Compensable Delays

General Conditions, Article 7, provides compensation to the contractor for compensable delays (see FM5:13.5). To be entitled to an adjustment in the contract sum for a compensable delay, the contractor must follow the claims procedures in General Conditions, Articles 4 and 7.

The amount of the daily rate of compensation provided on the Bid Form by the bidder is multiplied by an estimated number of days of compensable delay provided on the Bid Form by the University. That amount is then added into the total bid price to determine the lowest bidder. During performance of the contract, however, the actual number of days of compensable delay determined in accordance with the contract documents is multiplied by the amount of the daily rate of compensation listed in the Agreement to determine the total amount owed to contractor by the University for compensable delay.

5.4.15 Phased Construction and Multiple Liquidated Damages

Phased Construction. Phased construction may be used with a single-contract project (see 1.2) where portions of the contract are completed as the construction proceeds. This type of construction is referred to at the University as "multiple completion times" and is used in situations where certain portions of the work must be completed before the whole project is completed because of special requirements.

When phased construction is used, the following documents must be modified:

  • Advertisement for Bids
  • Supplementary Instructions to Bidders
  • Bid Form
  • Agreement
  • Specifications

Appropriate milestones and work activities should be included in the Specifications to suit the particular project. Assistance in drafting document modifications may be obtained from the Office of the General Counsel.

Multiple Liquidated Damages. If portions of the work must be completed at different times (phased construction), multiple liquidated damages may be used to encourage the contractor to complete the work at the required times.

When multiple liquidated damages are used, the following documents must be modified: 

  • Advertisement for Bids
  • Supplementary Instructions to Bidders
  • Bid Form
  • Agreement
  • Specifications

5.4.16 Separate Bids and Combined Bids

Occasionally a bidder may be asked to submit separate bids on two or more phases or parts of one project. The Facility may then award a contract to the lowest responsible bidder based on each separate bid or on the combined bid. This bidding method may be used when the budget for the total project combines separate fund sources, for example, federal funds for an addition to a building and non-federal funds for alterations to the same building.

On federally assisted projects, award of the contract may be made to the lowest responsible bidder on the entire work even though this bidder may not be the lowest responsible bidder for the federally assisted portion of the project. However, federal funding will be limited to the lowest responsible bid received on the federally funded portion of the project.

If separate bids and combined bids are used, the following documents must be modified: 

  • Advertisement for Bids
  • Supplementary Instructions to Bidders
  • Bid Form
  • Specifications
  • Drawings

5.4.17 Separate Contracts

References:

 Long Form, General Conditions (see Part II).

Separate contracts may be used as multiple prime contracts (see 1.2.1) to the University without assignment to a general contractor.

When separate contracts are used, the following documents must be modified: 

  • Advertisement for Bids
  • Supplementary Instructions to Bidders
  • Agreement
  • Specifications

5.4.18 Soil and Subsurface Conditions

Whenever site work requires the use of soil or subsurface investigation reports, logs of test borings, or similar geotechnical data as references for the contractor, all such geotechnical data must be provided in the Information Available to Bidders. The Information Available to Bidders disclaims all such geotechnical data; however, General Conditions, Paragraph 3.17, Concealed or Unknown Conditions, requires the University to assume responsibility for conditions that vary from the represented data.

5.4.19 Soils Engineer

When the Specifications and the Drawings use the term "soils engineer," or a synonymous term such as "geotechnical engineer" or "soil and foundation engineer," the Drawings should contain language that informs the contractor of the soils engineer's duties but does not describe the soils engineer's duties as being owed to the contractor.

When the Specifications and the Drawings use the term "soils engineer" or a synonymous term, the following document must be modified: 

  • Specifications Quality Control

5.4.20 Specialty Contractors

References:

Public Contract Code, State of California, Section 3300.

Before the Long Form documents were first issued, a special clause was added to the former Information Available to Bidders regarding when a project could be bid on by a specialty contractor. This special clause is no longer used because its intent is now satisfied by license classifications and codes that the Facility must add to the Advertisement for Bids, as required by the Public Contract Code.

5.4.21 Trenching and Excavating

References:

Labor Code, State of California, Sections 6705 and 6707.


When the work is anticipated to involve trenching or excavating of five feet or more in depth, the following document must be modified:

  • Specifications

5.4.22 Unit Prices

When unit prices are used (see 1.5.3), the following documents must be modified:

  • Supplementary Instructions to Bidders
  • Specifications

Unit prices are not provided for in the Mini Form. If unit prices are to be used in the Mini Form, use appropriate text from the Brief Form.

5.4.23 University Controlled Insurance Program (UCIP)

Follow the more detailed instructions in the UCIP Covered Projects Instructions page. When the University elects to provide insurance coverage of selected construction projects (see UCIP Covered Projects) the following documents must be included in the solicitation package:

  • General Conditions for UCIP Projects
  • Supplementary Conditions for UCIP Projects
  • Instructions to Bidders for UCIP Projects
    • RFP Document for Design-Build UCIP Projects
  • Table of Contents
    • UCIP Bid Document
    • UCIP Exhibits
  • Exhibits for UCIP Projects:
    • 1a UCIP Coverage Summary
    • 1b UCIP Safety & Health Qualification Form
    • 1c UCIP Insurance Manual
    • 1d UCIP Safety Standards Manual

Downloads for corresponding Word documents are available in the UCIP Homepage section of this website. 

5.4.24 Use of Common Site

General Conditions, Article 6, sets forth the University's rights and contractor's responsibilities when a project has different contractors working together on the same project site. When this situation occurs, the Specifications should describe the work of the separate contractors and how that work relates to the project. With this description, the contractor for the project in question may plan the work and better anticipate problems before they become major obstructions to the progress of the work.

Contractors are sometimes required to share the same site because the contract limits are either adjacent to or near each other. The contractors may have to use the same access or even the same work area.

When use of common site provisions must be made, the following document must be modified:

  • Specifications

5.4.25 Volunteer Labor

If any labor for all or a portion of a construction project will be provided by volunteers, all such volunteers must execute a form of Waiver of Liability, Assumption of Risk, and Indemnity Agreement (see RD 1.4). If the volunteer is a minor, the volunteer’s adult parent or guardian must also execute the form.

An individual performing work qualifies as a volunteer only under the following circumstances:

  1. The work is performed for civic, charitable or humanitarian reasons, without promise, expectation or receipt of any compensation for work performed.
  2. The work is offered freely and without pressure or coercion, direct or implied, from an employer.
  3. The individual performing services is not otherwise employed for compensation on the same project and is not employed by a contractor that is receiving payment for construction work performed on the same project.

If the individual performing services does not qualify as a volunteer, then the statutes requiring the payment of prevailing wages shall apply. (The statute providing the exemption from prevailing wage requirements for qualified volunteers will expire on December 31, 2016 unless extended.)

If volunteer labor is contemplated on a project, contact construction counsel in the Office of the General Counsel to discuss the unique facts of the situation before asking any volunteers to execute a Waiver form.

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Revised September 1, 2017 (Change # FM 17-006-C)

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