In the world of construction, the role of the architect has assumed a remarkably powerful position yet that role often results in the architect being the focus of disputes and resentment as he or she tries to balance the conflicting needs of the builders, the engineers and the “client,” that is, the owner of the building. The architect is quite often the ultimate decision maker on a project, the person who is supposed to coordinate the aesthetic and practical needs of the owner with the practicalities and design criteria of the engineer, the builders and the local authorities. All within budget and all delivered on time.
As any mediator will tell you, being in the middle is seldom a position in which one may relax. One finds oneself the lightening rod for frustration and discontent and added to this role is the “artistic” role that most every architect, either consciously or not, wishes to assume. Within the world of construction, the people who wish to use construction to create useful AND beautiful structures normally become architects and most architects, especially when young, hope to create in brick and mortar some aesthetic concept that will last generations.
Yet, legally, the role of the architect is not only more mundane, but is actually restricted to being the agent of the owner, acting to initiate and facilitate the project from initial planning to completion. As the owner's agent, the architect is typically responsible for the technical design, as defined in the contract with the owner. The specifics of the architect's responsibilities should be clearly expressed in the contract and, as discussed ad nauseum in our web site, the key to a successful business or construction relationship is a well drafted written contract created with the professional input of both attorneys and accountants. Indeed, in some jurisdictions it is legally required to have a written contract between the architect and the owners.
The ideal contract is carefully constructed with the particular project and personalities in mind. Realistically, the usual project uses the standard form AIA (American Institute of Architects contract A201) or equivalent form with “fill in” blanks despite the fact that it is usually heavily weighted in favor of the architect. (Most truly experienced developers, after one or two experiences with that form contract, create either addendums to the contract or create their own version.) Either with that form or not, the responsibilities discussed here often apply in standard form contracts.
The problem with architect relationships, however, often stems not from the central role they perform, but by a misunderstanding of their contractual duties, and usurpation of various roles and responsibilities by others on the project, either intentionally or unintentionally. In an effort to get the project done (and the money paid) it is not uncommon for subs or builders…or even owners…to assume tasks that should be in the architect’s purview both causing confusion and, ironically, removing that responsibility and liability from the architect’s shoulders.
To avoid that danger, a full understanding of the actual tasks normally assumed by the architect and what they mean is essential.
STANDARD FORM CONTRACT PROVISIONS
Owner’s Contractual Role: Caveat:
By engaging an independent design professional, by which is normally meant the architect, the owner intends to secure a reasonable design within known parameters. At the same time, the owner will shift responsibility for the design onto the architect, and should clearly and completely convey all project objectives and necessities. The owner should avoid participation in the actual design work if the owner wishes to ensure that the design liability remains with the design professionals. As far as the contractor is concerned, these are contractual matters strictly between the owner and designers. The typical response of a contractor to a flaw in the construction is that the Plans and Drawings indicated that the construction should have been completed in that manner and so long as the contractor follows the plans and specifications, the contractor is normally free from liability. (Quite a few contracts with contractors impose upon contractors the duty to report errors in plans and specifications that they encounter but even assuming the contractor executes such a clause, enforcement is difficult and the negligence would still be parceled out among the various parties…including the owner if the owner was responsible for the errors.)
The following are the typical project obligations of the architect and the rest of this article shall discuss them in detail:
1. Production and coordination of all plans and specifications including all change orders.
2. Technical accuracy of all documents and often reviews of contracts with subs.
3. Specific design (not design criteria).
4. Workability of the design.
5. Code compliance.
6. Interpretation of the documents.
7. Submittal review and approval.
8. Prompt and timely response.
9. Evaluation of the work, often as part of release of payment provisions.
10. Diligence, skill and good judgment usually with a criteria of “equal to the professional level of competence in the area.”
(1) PRODUCTION AND COORDINATION OF THE PLANS AND SPECS
It is the architect's responsibility to represent the work in sufficient detail on the plans and to describe it in sufficient detail in the specifications.
Despite clauses in some construction contracts, the owner should normally insist that the architect should avoid attempts to impose upon the contractor any responsibility for the completeness and/or correctness of the plans and specifications. Indeed, many contractors insist upon such language and a typical clause seen recently was.
"The plans and specifications are complimentary. The contractor is to provide all work shown on the plans, whether or not adequately described in the specifications, and all work described in the specifications whether or not specifically indicated on the plans as if called for by both."
In most cases, the Courts have held that the ultimate responsibility for adequately describing each building component rested squarely with the designer. Such work description typically includes two components:
1. Technical specification.
2. Responsibility for identification.
In theory, the contractor should be able to award individual subcontracts for each specification section strictly "per plans and specs" with confidence that when the process is complete, the entire project scope will have been covered and all necessary pieces for a complete project would be accounted for. The responsibility for each specification section or division should thereby be correctly specified and assigned without misunderstandings or disputes. In practical application, the general contractor may be held at least partially responsible for identifying obvious or glaring design problems. However, the contractor should not be expected to complete a search of the documents with the specific purpose of confirming whether or not the architect completed the design. As one owner put it to the writer, “The architect is where the buck stops. The contractor may have been foolish to rely on the plans but if he can’t rely on them, why do I need an architect?”
(2) TECHNICAL ACCURACY OF THE DOCUMENTS
The architect should make sure that the plans and specifications have been prepared correctly. For example, if a large motor is specified, the architect inherently warrants that a large motor is available for the application. If that motor requires 220-volts of three-phase power, that provision must be included in the specifications along with the stated responsibility on the part of the contractor or the sub for the final connections. If a specific roof insulation R-factor is necessary and the thickness is shown on the plans, the contractor should not have to pay for an increase in roof blocking because the roof insulation thickness shown did not measure up to the required thermal performance. If the architect wants a particular blue paint, that blue paint should be available for purchase, and the specified boiler should physically fit between the walls of the boiler room.
It is typically not the contractor's responsibility to confirm these factors before the orders are placed. In that respect, the architect is responsible not only to set plans and specifications that are theoretically possible, but must create plans and specifications that are practically and realistically possible. The contractor and the builders must be able to rely on that aspect of the architectural expertise.
(3) SPECIFIC DESIGN
Contractors often get trapped into unexpected liability and responsibility when their practical construction experience must provide the opportunity to fill in gaps left by incomplete designs. Despite the best of intentions, when a contractor initiates a "design", he or she may assume the architect's liability as it relates to that particular area. Unless there is a glaring deficiency in the design, it is the contractor's job to proceed with the work, not to redesign it.When a contractor recommends changes in design details in the interest of time or even with the noblest intentions of improving in product quality, there may be an assumption of responsibility for the new detail. The same holds true for a developer or owner who seeks to “correct” or alter any aspect.
This is not to say that, in a general contractor/owner agreement, the contractor should never recommend such changes, particularly if they improve the construction sequence. The contractor, or owner, however, should be aware of the risks of assuming additional liability and weigh those risks against potential benefits resulting from the respective design change. As difficult as it may be for the contractor to bite his/her tongue in those instances where the design just may not seem to make all that much sense, if the potential rewards are marginal, the contractor would be advised to proceed with the approved design. In the case of the owner, he or she may find themselves in a position in which they not only waive any claim against the architect for lack of performance, but are themselves considered responsible for any subsequent problems. Properly drafted agreements are the solution to this dilemma but the best agreement will be invalidated by inappropriate action by the contracting parties.
Another area where contractors often get into design traps, and one with great potential for change orders, are those areas where an incomplete design is provided. It is fundamental to the architect's design responsibility that every component of the construction assemblybe reasonably identified. An all too common attempt by some architects and engineers to bridge this potential design gap is called the "Referenced Standard." By referring to applicable provisions of some accepted industry standard specification, designers sometimes hope to shift responsibility for omissions in the contract documents onto the contractor by way of the technical requirements contained in those standards.
In some cases, the use of reference standards is legitimate. For example, referring to Department of Transportation (DOT) standard specifications for a certain type of road construction should yield very specific and stringent requirements to complete the work. These requirements will incorporate exact material specifications and installation parameters to allow non-subjective evaluation of performance. Examples include: "bank-run gravel with the exact composition noted and compacted to a density of 95%", or "34-in. crushed trap rock placed to a depth of 8 in."
Based on this specification, the contractor should be able to determine:
a) The required material.
b) What to do with the material.
c) How to measure performance and compliance.
This example is in sharp contrast to other types of standard specification references, which amount to little more than vague descriptions of design criteria and which are completely inappropriate for the architect to use instead of providing the actual design.
For example, in a recent case, there was an attempt on the part of the architect/engineer to force the contractor to provide elaborate galvanized steel draft barriers in the large open-web roof joists of a jet hangar as part of the fire protection system. The basis for the A/E's action rested on a statement in the fire protection specification that the contractor should complete the system "in accordance with NFPA (National Fire Protection Association) Bulletin No.409." As it turns out, the bulletin contained relative design criteria – but not the design itself.
This example is a fundamental departure and contrast to the DOT specification example given above. The closest thing to a material specification in the hangar case was language "made of a noncombustible material", and dimension and sizing properties amounted to a complex system of formulas to be applied to any number of different types of structures. In other words, there was no material specification, no assembly design, and no performance criteria had been offered. Heavy-duty aluminum foil wrap would have complied with the material "specification" requirement (this would be of course ridiculous to consider in the actual construction, but indicated here specifically to display the ridiculousness of trying to force a contractor to comply with this type of requirement). The owner ultimately was required to pay the contractor for a change order in excess of $100,000. The flaw was that they had allowed the architect to cut corners by avoiding the task of truly providing design work in that instance. And, remember, the architect is the agent of the owner.
(4) WORKABILITY OF THE DESIGN
When the designer assembles a detail, there is an implied warranty established that the pieces will fit together in the same way that they have been placed on the drawings. If an impossibility is encountered, the contractor will probably not be held responsible. It is usually not sufficient to argue that a contractor "should have known better." The designer had some specific intent; it is up to him or her to let the contractor know what that intent is.
In addition, the designer is ultimately responsible for the facility and its systems' ability to function and perform in the manner and to the extent intended. If a driveway is designed, a truck should be able to meet the grade even if fully loaded. Pipe diameters should be detailed to ensure that all system's output is adequate. Lighting design and specific products are given exact sizes and performance ratings are placed in precise locations.
The contractor's duty is to install what is defined and located and to install these items consistent with industry practice. If the installation is properly accomplished, it is not (or at least should not be) the contractor's problem when the room doesn't get cool enough, fast enough, or if the corners in the room are dark. These kinds of problems typically result from design deficiencies.
Attempts are sometimes made to impose responsibility on the contractor for the workability of the design. This may happen whether or not the action is properly predicated on the contract documents via the inclusion of language, such as the following from a recent case:
"The contractor is responsible to furnish whatever is necessary to ensure a complete and properly functioning system, regardless of whether or not shown in the contract documents.
It is the intention of this section to have a complete system functioning adequately for its intended purpose. It is the contractor's responsibility to correct materials and equipment if they have not been sized properly, at no additional cost, in order to achieve this purpose."
Such clauses suggest the wholesale abandonment of design responsibility. They are, therefore, matters that can cause litigation if things go wrong and given the overlapping responsibilities thus created, can tend to achieve negative results.
(5) CODE COMPLIANCE
The architect is responsible for ensuring that the design as it is assembled and integrated in the contract documents complies with fire, safety, and all other applicable building codes.
If a door between two spaces needs to bear a fire rating, it is up to the architect to indicate in the contract documents the precise rating that the code dictates. It is generally not advisable to ask the contractor to "provide all doors in accordance with the fire code." Likewise, unless the specific engineering activity is incorporated in the respective subcontract, such as in the fire protection systems section, it again is the designer who must specify pipe wall thickness, as those technical requirements relate to appropriate code restrictions. From that point, the designer is completely within his or her rights to require installation and workmanship in accordance with applicable codes and standards, but lacking a clear, specific requirement otherwise, not the determination or selection of the material itself.
Implicit in this requirement is a thorough working knowledge of all applicable codes as amended and interpreted as of the date of the plans. Implicit is the ability and willingness to defend the design should an inspector contest the compliance with codes or the architect’s interpretation of code requirements.
(6) INTERPRETATION OF THE DOCUMENTS
Depending upon contractual relationships, the duties of an architect to interpret the documents for both clarifications and dispute resolution can vary widely. Design interpretation often creates an early friction point, in that it is not the designer's "intent", but the "specific indication" that usually gets priced in the contractor's original bid. "Intent" has a good probability of becoming a compensable change order.
The different relationships that can be formed between owner and architect in the contract between them may leave no or total authority vested in the architect for interpretation and final decision on all matters relating to construction. Most often, the architect's role is to review conflicts and proposed changes and submit specific recommendations to the owner for the owner's action. In this regard, the Construction Specifications Institute (CSI) takes the position that the American Institute of Architect's AIA Document A20l, The General Conditions of the Contract for Construction, is not a self-serving document prepared by and for architects. Rather, that it is a uniform, fair, and completely objective set of conditions assembled by an association of architects, owners, contractors, and lawyers, among others. Whether this is true is a matter of some debate among construction professionals. For instance, A201 includes language such as:
"The Architect will be the interpreter of the requirements of the Contract Documents and the judge of the performance there under by both the Owner and the Contractor."
Some have suggested that this language allows the architect to be something of a judge and jury in contract matters, even insofar as matters with the owner are concerned.
(7) SUBMITTAL REVIEW AND APPROVAL
Although this is a specific activity and one that also applies to point 8 below, review and approval of project submittals amounts to what is most likely the most time consuming of the architect's activities during construction. It is for this reason, combined with the fact that there exists such great potential for abuse, that the subject justifies special attention.
Assuming proper and timely submissions by the contractor, the architect is to receive and act upon each submission in a manner described in the agreement. Lacking a precise description, the architect's actions should be within the parameters customary in the industry. That action is comprised of components such as:
(A) Conformance with Requirements
This involves a detailed review of every significant component to confirm that the item proposed meets all design and performance criteria originally specified. This process is there to confirm that the product meets the stated requirements, and not as someone else would like it to be. "Standard colors" means just that, and 3/4" insulated glass does not mean 1" insulated glass. The obvious eccentricities are easy to spot. The contractor would be well advised to exercise the discipline to check all the architect's comments, notes and modifications to submittals and correct even the more subtle of changes if they have a potential for significant cost impact.
(B) Provide Missing Design Information
In many instances, complete preparation of a submittal is not possible, because design information and dimensions are missing. The precision of detailed, large-scale shop drawings may expose conflicts that may need significant redesign, or may require nothing more than the designer's decision as to which alternative is preferred.
This requirement is included only for additional treatment of the subject and is expanded upon in point 8 below. Suffice it to say here that all actions, favorable or unfavorable, that a designer is going to take with respect to submissions for approval should be taken quickly and decisively. The contractor should be allowed to take subsequent steps in time to preserve the construction schedule and other objectives as much as possible.
The form of the architect's response should be written. An example of what-not-to-do comes from a recent case, where we found evidence that the architect had sometimes responded to the contractor's requests for information (RFI) by providing sketches on the unpainted walls of rooms under construction.
(8) PROMPT, TIMELY RESPONSE
No matter how narrow or broad the scope of architect's responsibilities, the architect typically has an express obligation to take all actions with reasonable promptness so as not to cause a delay in the work. Even if "reasonable promptness" is not specifically defined in terms of the number of days considered acceptable, the durations may be established by customary practice, by confirmation or clarification at early job meetings, or by calling attention to specific requirements in the appropriate correspondence as individual situations may dictate. Most contracts do not have a time span specifically mentioned, but many contracts do have a “no later than X days after submission” type of language which our office strongly recommends.
Common activities that the architect will normally be required to perform at such "reasonable" speeds include:
a) Review and approve of shop drawings.
b) Review and recommend/approve change orders.
c) Prepare change order designs.
d) Approve requisitions for payment.
e) Issue documentation (meeting minutes, transmittals, etc.).
f) Make site inspection/ do testing.
g) Respond to contractor questions.
The architect should properly, and completely, respond to the usual and unique situations within either the stated or implied time constraints. If not, he or she will risk bearing the responsibility for any resultant damages.
(9) EVALUATION OF THE WORK
The architect has a responsibility to satisfy himself or herself that the work is being performed in accordance with the contract documents. The architect is not responsible to be intimately familiar with every nut and bolt of construction as the work is progressing. It is the respective trade contractors who are responsible to install the work correctly in the first place. This is probably one of the most conflict prone areas of the work, not merely because the area may be complex, but because ultimately this decision will affect everyone’s pocket book.
The activities that make up this ongoing evaluation of the work as determined specifically in most contracts include the following:
The architect is often responsible for making regular visits to the jobsite to familiarize himself or herself generally with the progress and quality of the work. As we discovered in a recent case, it is usually not enough to review the progress photos and try and get the picture of job progress through the correspondence. He or she must be on the site to confirm that the work is progressing along the lines of that expected as the work is progressing. It is not reasonable, for example, to wait until all the brick is up before the architect determines that the color of the mortar is not close enough to the sample to be considered acceptable.
Finally, the architect should be available on a periodic basis and any other time when needed to answer questions and resolve minor conflicts as quickly as possible, without having to cause the contractor to hunt unreasonably for the answers.
This function may actually be split between the architect and the owner, or incorporated within the activities altogether. The idea is to have the testing of the work as it is being performed as an activity performed and paid for by some owner's agent, as opposed to the contractor, to avoid conflict of interest. As always, clear language in the contract is a vital part of this division of labor.
The architect is responsible to either determine entirely or to confirm the owner's evaluation of the fitness of the work, along with the associated dollar value. This, in some ways, is the most powerful duty of all since each person on the project will be looking to the results of this evaluation for payment and for completion. The lending institution often requires such approval before disbursements. In the event of any dispute, it is almost always this evaluation that forms the basis for later litigation or for approval of change orders or overtime. The owners and the architect must clearly and without ambiguity determine in the contractual documents the scope, power, and authority for this particular set of tasks.
Specific activities included in the process may be:
1) Determine/confirm/verify the amount of work in place and corresponding payment to the contractor.
2) Confirm acceptable material quality and workmanship standards.
3) Reject work that does not conform to the contract.
4) Determine the dates of substantial and final completion.
5) Issue stop-work orders.
(10) DILIGENCE, SKILL AND GOOD JUDGMENT
It is unusual to find many express warranties of architects (and their engineers) in most construction agreements. These designers do, however, implicitly warrant that they have exercised diligence, competence, skill, and good judgment throughout the design process and contract preparation. Moreover, they are to have performed all the deeds in accordance with the professional standards of the community in which the work is to be constructed. Except for the most obvious errors, the contractor has the right to assume that the information provided in the contract documents is complete and sufficient to allow an accurate estimate. More subtle deficiencies that become apparent as the work progresses are then the responsibility of the party who caused or contributed to the deficiency.
A very experienced subcontractor once commented to the writer over a beer that if he sinned outrageously in this life God would probably send him back in the next life as either a slug or an architect. The former if God wanted to humiliate him, the latter if God wanted to have him despised by everyone.
An architect once commented when told of the above story that creating beautiful things alone is difficult; creating them by committee almost impossible; creating them by committee on a deadline and with a budget a task fit only for a deity and thus it is no wonder architects are feared and respected.
But perhaps the best comment came from the wife of the architect who was joining us at dinner at the time and commented that only Gods would have the audacity to attempt such tasks…or men who thought they were Gods. She smiled as she said that. But she did not look amused.