The Architect Responsibilities and Disputes

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.

(C) Response

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:

(A) Inspection

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.
(B) Testing

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.

(C) Evaluation

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.

CONCLUSION

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.