09 February 2015

Furnish, install, or provide?

Most architects, I believe, define the terms furnish (or supply), install, and provide, and sometimes those definitions appear in an owner's general conditions. When defined, they are part of the contract documents, and requirements using them are enforceable based on those definitions. In practice, perhaps because the definitions are nearly ubiquitous, I have had few problems with interpretation by contractors, or with enforcement.

Oddly, it's architects who seem to have the most trouble understanding and using these definitions, even though the definitions originate in the architect's own office.
In casual conversation, it's common to use furnish and provide interchangeably. This should be no surprise, as the first definition of furnish is either provide or supply in every definition I found, and definitions for provide usually are make available, supply, or cause to be present, all of which also mean furnish.

When used in casual conversation outside the office, there usually is no problem as no further precision is needed, and we aren't concerned about installation. However, when used in casual conversation in the architect's office, or in conversation between architect and owner, there is at least a potential problem.

If a specifier, or an architect who cares about such things, is involved in the conversation, it's likely that the precise definition will become part of the discussion, and the related contract documents will use the correct definitions. But without the involvement of such a person, it's quite possible that the contract documents will use the wrong, or conflicting, definitions.

A similar problem exists with references meant to indicate either who is furnishing or who is providing something, for example, by owner or by contractor. I have seen countless references of this sort, and each time asked what the intent was. The responses have been inconsistent, sometimes meaning furnished by and other times meaning provided by.

To further complicate the issue, I have seen increasing use of the term vendor. In the context of the construction contract, there typically are two or three of these defined entities: The owner, the architect, and the constructor (contractor, CM, or design-builder). Everything must be furnished, or installed, or furnished and installed, by either the owner or the constructor. In my experience, a "vendor" is most often a company that works directly for the owner, either furnishing materials for installation by the constructor, or furnishing and installing materials for the owner. In either case, an additional term is not required, because the vendor works for one of the defined entities. A vendor that works for the owner is, in the context of the contract, indistinguishable from the owner; and a vendor that works for the contractor is a subcontractor.

In casual conversation, incorrect use of defined terms may be an inconvenience, but when defined terms are used imprecisely in conversation with a client, whether in formal or informal communication, incorrect interpretation is almost inevitable.

To eliminate these problems, consider avoiding the term provide, and using instead, the slightly longer, but unmistakable furnish and install. Some would argue this is not necessary, and I agree. However, in balance, the advantage of clarity and the elimination of the need to continually discuss the speaker's intent can outweigh the simplicity and elegance of using provide.

How often have these definitions led to problems for you?

8 comments:

  1. I tend to use OFCI and OFOI abbreviations on drawings. CFCI is not needed; a general note indicates everything is provided by GC unless noted otherwise.
    JMT

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    1. Those are common abbreviations. Tables also are common, with columns for furnish and install, or for owner and contractor. As you note, CFCI is not needed, as it is the default condition. OFOI is essentially the same as NIC.

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  2. I do see confusion of the terms among architects, but more often among engineers. I find myself frequently having to educate and re-educate our engineers, and having to ask them to change their notes. There was one who regularly directed the contractor to "furnish and provide." Does that mean he has to furnish it twice and install it once?

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    1. Perhaps the intent is to get extra materials for maintenance...
      Funny you should mention this; I saw that phrase in an engineer's specifications just yesterday. I'm pleased to note that they were online, not from one of our consultants.

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  3. Can you cite a source that is accepted industry wide that would help me settle a dispute about the definition of the term "provide." The architect fails to define the term in contract docs.

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    1. Ed, I wish there were such a reference. The EJCDC (Engineers Joint Contract Documents Committee) general conditions includes a definition of furnish, install, and provide, but AIA general conditions do not. That leaves it to the architect to define the terms. Absent those definitions, an attorney would probably turn to a dictionary, where furnish is used to define provide, and provide is used to define furnish. Architexts offers an amusing look at the issue; see http://architexts.us/2015/01/21/construction-administration-furnish-and-install/

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    2. PROVIDE
      1. An act of furnishing or supplying a person with a product. 2. The allocation of resources, being money or goods, to allow a project to proceed to completion or the next stage.



      Law Dictionary: P Information and Definitions from Black's Law Dictionary

      FURNISH
      To supply; provide; provide for use. Delp v. Brewing Co., 123 Pa. 42, 15Atl. 871; Wyatt v. Larimer & "W. Irr. Co., 1 Colo. App. 480. 29 Pac. 906. As used in theliquor laws, "furnish" means to provide in any way, and Includes giving as well asselling. .State v. Freeman, 27 Vt. 520; State v. Tague, 76 Vt 118, 56 Atl. 535.



      Law Dictionary: F Information and Definitions from Black's Law Dictionary

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    3. Hence the need to define the terms. However, as noted, I've gone to using "furnish and install" in place of "provide" to minimize the problem.

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