How to decipher (and protect yourself from) the tricky wording of RFPs

Earlier this summer, the Ontario Association of Architects (OAA) launched a Practice Tip to help architects decipher the language of RFPs and client-architect contracts.

In recent years, architects have been under pressure to sign agreements containing multiple pages of supplementary conditions, which often depart from standard architectural practice. In 2015, I moderated a panel on navigating these contracts, and published some resulting tips in a follow-up editorial.

The OAA reviews RFPs and contracts as part of its mandate to protect the public interest—inadvertently excluding insurance coverage or contravening applicable law is not in the public interest—and put together the Practice Tip based on its experience.

In a special news bulletin, the OAA writes: “The OAA has reviewed many RFPs and proposed contract terms and conditions over the past several years. In doing so, it became apparent that there were some inappropriate items that kept appearing with either identical wording or with minor variations.”

“This new Practice Tip discusses issues faced by members in deciding to respond to RFPs or in negotiating contracts. It includes an appendix which examines examples of numerous typical clauses of which members should be wary. The bulletin should be kept at hand as a reference while reading through an RFP or proposed contract.”

Reading about legal language might not be everyone’s cup of tea, but I found this guide to be excellent. It presents a clear, cogent guide to some of the language that has been appearing in the massive supplemental conditions documents that now accompany many contracts.

The guide includes specific examples of wording that practices should be most concerned about when reviewing RFPs and contracts, and offers suggestions of alternative language.

For instance, in a clause stating that architects agree to “during the progress of the work ensure that the Contractor(s) is keeping as-built drawings up-to-date,” the guide points out that the word “ensure” means to offer a guarantee, and guarantees are not insurable under professional liability insurance policies. Instead, a recommendation is to substitute wording such as “assist in” or “require.”

The document also highlights terms such as “time is of the essence”, which has a very specific legal meaning and implications related to breach of contract and professional liability insurance coverage. It recommends replacing it with “time is critical.”

While the OAA’s guide is directed to Ontario architects, it may be a useful reference for architects in a larger territory, who are dealing with similar challenges. 

The OAA urges members to seek advice from their own legal counsel when reviewing RFP and contract language.