Key Considerations for Contractors in Drafting Effective RFIs
Category | Briefing Papers
By Hugh D. Brown & Zachary E. Coppola
Hugh Brown and Zachary Coppola are members of the firm’s Construction Law Department. Hugh can be reached at 612.359.7663 or Hbrown@fwhtlaw.com. Zach can be reached at 612.359.7667 or ZCoppola@fwhtlaw.com
Requests for information (“RFIs”) are one of the most commonly utilized project communication tools. RFIs are written requests made by the Contractor to the Designer in order to seek clarity on the design and related issues. Because RFIs relate primarily to design issues, the majority of RFIs are generally submitted during the early stages of a project. The Designer, who generally has a contractual obligation to respond to RFIs on behalf of the Owner, will then provide a written response to the RFI, which often must be provided within a certain contractually defined time limit. While routine, RFIs are not without legal significance. How they are written, tracked, and responded to can significantly impact a Contractor’s rights to delay or cost recovery. This BriefingPaper explores how RFIs can undermine or support Contractor claims—and offers best practices for using them strategically.
I. Evidentiary Significance of RFIs
Unsurprisingly, because RFIs track the impact of potential design issues in real time, courts have increasingly examined their substance as part of the evidentiary record in construction disputes. As one court noted, “for RFIs to be evidence that the plans were defective, they must cumulatively demonstrate a serious deficiency in the plans.”[1] This underscores the importance of drafting RFIs that clearly identify issues and their potential impacts. For example, if the contract drawings show conflicting elevations for a foundation wall, submitting an RFI that highlights the discrepancy and requests clarification creates a contemporaneous record showing (1) the Contractor detected the issue, (2) the Owner/Designer was formally notified, and (3) the Contractor sought a timely resolution. When multiple RFIs of this nature are maintained, they can collectively demonstrate that design problems were significant and ongoing, providing persuasive evidence in support of delay or cost claims.
Takeaway: RFIs are not just routine project paperwork but carry real legal weight. By treating them as contractual communications, Contractors can protect their rights while avoiding mistakes that may weaken future claims.
II. How RFIs Can Bolster Your Claim Rights
Although the primary consideration when drafting RFIs is getting the clarification needed to successfully proceed with construction, RFIs can serve as key evidentiary items should a dispute related to the issues identified in an RFI proceed to litigation or arbitration. Thus, Contractors should take the proactive measures explored below to ensure the greatest chance of success on any related claims.
A. Clearly Flag Scope or Design Conflicts
When drafting RFIs, Contractors should clearly identify and document any inconsistencies, omissions, or conflicts between drawings, specifications, and other contract documents. RFIs should be phrased in a way that highlights the potential for extra work, design ambiguity, or schedule impacts, rather than posing vague or generic questions. For example:
- • Weak: “Please confirm duct routing at grid D5.”
- • Strong: “The duct routing shown at grid D5 conflicts with structural beam B14 and may require rerouting. This condition was not accounted for in the bid and if rerouting is required will require extra work. Please advise.”
By framing RFIs in this way, Contractors not only increase the chances of receiving a meaningful response but also create a contemporaneous record demonstrating that the Owner or Designer was on notice of an issue that could affect cost or schedule. This strengthens the evidentiary basis for any related claims down the road.
B. Reference Specific Provisions From the Contract Documents
Strong RFIs do more than point out problems—they tie those problems directly to the governing contract documents. By citing specific drawings, specification sections, or general condition clauses, Contractors demonstrate that their request is not merely a field-level concern but a contractual issue that requires a formal resolution. This approach also shows diligence in reviewing the contract and strengthens entitlement arguments if the matter later becomes a claim. For example:
- • Weak: “Please confirm type of flooring in Corridor C.”
- • Strong: “Drawing A-512 calls for vinyl tile in Corridor C and our bid was based on this more specific requirement, but Specification Section 09650, ¶ 2.1 more generally lists terrazzo flooring for all corridors. Please state the desired flooring in this area. If terrazzo is desired, the material cost and installation schedule will be affected by this clarification.”
By grounding RFIs in the actual drawing and specification language, Contractors make it more difficult for Owners or Designers to dismiss the discrepancy and ensure that the written record supports their rights to cost or time adjustments if necessary.
C. Do Not Acquiesce to Inadequate or Untimely Answers
Contractors should never accept vague, incomplete, or untimely responses to RFIs without objection. If a response lacks sufficient clarity or arrives outside the contractually required time frame, the Contractor should promptly issue a written follow-up identifying the deficiency and reserving its rights. This not only prevents misunderstandings in the field but also avoids creating an evidentiary gap that the Owner could later exploit in litigation. Relatedly, if it is critical for the Contractor to receive a response by a certain date, the Contractor should clearly state so in the RFI. By insisting on clear and timely answers, Contractors strengthen their record and preserve their claim rights.
D. Do Not Give Owners an Argument for Waiver
If an RFI response changes scope or schedule and the Contractor proceeds without objection, the Owner may argue that the Contractor waived any right to a change order or time extension. While the merits of such an argument may ultimately be weak, it still poses risk by forcing the Contractor to defend against a waiver claim and potentially undermines its negotiating position. As such, whenever an RFI answer may lead to extra-work or a delay to the project schedule, it is essential that the Contractor send a follow-up letter to the Owner seeking further clarity and, if necessary, submit a formal claim or change order pursuant to the requirements in the contract documents. On this point, it is essential that Contractors do not delay submitting change order or time extension requests after receiving a potentially detrimental RFI answer, as doing so weeks or months after receiving the answer may seem opportunistic. The Owner may also claim that had it known the RFI answer would lead to a claim, it would have changed its answer before work was performed. This may prove particularly problematic if the Contractor signs a pay app or lien waiver after receiving the answer without reserving rights. In short, Contractors should never remain silent when an RFI response impacts scope, schedule, or cost—swift and formal action is the only way to safeguard their rights.
Takeaway: Well-drafted RFIs serve as more than a tool for clarification—they create a contemporaneous record that can support claims for added time or compensation. By tying RFIs to contract language or specific drawings and specifications, clearly documenting conflicts, and demanding adequate answers, Contractors position themselves to succeed in potential disputes.
III. Best Practices: Proactive RFI Management to Preserve Claims
In addition to the various considerations above related to the drafting, presentation, and use of RFIs, there are also several procedures which Contractors can implement internally to maximize the efficacy of RFIs for the purposes of successfully pursuing related claims. First and foremost, Contractors should utilize a detailed RFI log that tracks all relevant information related to each RFI submitted on a project. A well-organized RFI log is one of the contractor’s most powerful tools for tracking issues, presenting information clearly to stakeholders, and ensuring immediate access to the documentation needed to support claims. An effective log should include the RFI number, subject line, date of submission, contractual response deadline, partly responsible for responding, and the date of actual response. It should also track whether the RFI raised cost or schedule implications – i.e. whether the RFI answer affects the critical path – and whether follow-up correspondence was issued. By maintaining this level of detail, the log provides a clear timeline that can be relied upon in claim preparation or dispute resolution. In litigation or arbitration, a well-maintained RFI log often carries significant evidentiary weight, demonstrating both the Contractor’s diligence and the Owner’s or Designer’s responsiveness. In addition, the log can serve as a valuable management tool during the project itself, ensuring RFIs are addressed before they result in costly delays.
In addition to RFIs, Contractors should consider having their supervisors use speed memos (or other contemporaneous communication method) for purposes of documenting oral conversations or directions by the Owner that may not require an RFI. Speed memo forms should include four simple sections that supervisors should be instructed to use: 1) the date and subject matter; 2) the names of the individuals who had the relevant conversation; 3) a summary of the conversation; and 4) a concise statement on what directions were given or what was agreed to. Finally, after drafting the memo, it should be sent to the Owner and Architect for confirmation. When used, speed memos can serve as a complementary practice by memorializing oral communications, informal directions, or clarifications that do not rise to the level of an RFI. These short, contemporaneous notes help prevent disputes over “he said, she said” conversations and ensure that the Contractor maintains a reliable record of instructions received in the field. Together, speed memos and RFI logs create a comprehensive documentation system that both supports claims and streamlines project management.
Takeaway: By maintaining detailed RFI logs and supplementing them with speed memos, Contractors create a disciplined documentation system that not only strengthens potential claims but also improves day-to-day project efficiency and accountability.
IV. Conclusion: Don’t Let Routine Communications Cost You Later
Although RFIs may feel like routine paperwork, they carry significant legal and practical consequences. Used strategically, they can become a powerful tool for protecting entitlement and documenting disputes. By treating every RFI as a potential piece of evidence, Contractors ensure that day-to-day communications also serve their long-term interests. In short, disciplined RFI management is not just good practice—it is essential risk management.
[1] Caddell Const. Co., Inc. v. U.S., 78 Fed. Cl. 406, 413 (2007).
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