A couple of weeks ago I posted the first Case Study from my talk at this year’s ProcureCon Facilities Conference.
There were two topics I spoke on that day. The first was a Case Study demonstrating how combining pricing models can help solve common procurement problems. The second case study was about a common and well know clause in design contracts which loosely defines the standard of care to which Architects are bound.
Today I want to recap the second case study and make the deck I presented available for download.
There are a number of third party contract templates available in the construction industry. Although these contract templates tend to be fairly neutral, some clauses tend to favor one party or another.
In the case of “Standard of Care” language the standard verbiage from the AIA Standard Form of Agreement Between Owner and Architect is so vague and open to interpretation that it hurts both parties.
In order to better address this, I have developed a set of clauses designed to remove the ambiguity from this verbiage and offer both parties the level of clarity they deserve.
The AIA’s Standard of Care reads:
“The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances.
The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.”
This language is so broad that even AIA members have posted whitepapers pointing out the ambiguities and conflicts this language promotes.
The whitepaper I am referring to was written by Dale Munhall and Leo Omaha in 2011 and is called “Standard of Care: Confronting the Errors-and-Omissions Taboo Up Front”
The alternative to this canned language is to negotiate your own standard of care. This can be done quite easily and simply by having an open conversation with your selected Architect.
Now, I don’t want you to think the verbiage I have developed should now become the standard. As Munhall and Omaha write these are terms to be negotiated and developed specifically for you and your Architect and specifically for your project. The deck which I have linked below shares the verbiage I have developed, but rather than copying my verbiage verbatim, I recommend that you sit down and openly discuss expectations with your designer.
To help frame your discussion you can use the following high level outline of topics.
I do caution that some of these terms do straddle the line between commercial terms and legal terms, so my advice is to engage with a legal representative to ensure your interests are protected.
Codes and Zoning
The first topic I like to address is the Architects responsibility for reviewing applicable codes and zoning regulations and developing drawings that comply with those codes and zoning regulations. You should note that the ultimate authority on compliance is not the Architect. Your local jurisdictional authority has the authority to approve or reject drawings, and in the event of a conflict there are higher authorities that may need to be called. If you need help understanding the intricacies of codes and zoning regulations, read this series of articles on codes and zoning.
The next topic I like to address is the Architect’s responsibility for verifying existing conditions. You should never rely on existing conditions drawings or record sets and you should always require a physical field verification of existing conditions. You should never even begin your design without this.
The same way that a lawyer or a doctor applies their professional judgement in preparing for court or diagnosing a condition, an Architect applies his/her professional judgement on every project. I specify that I expect their judgement to be exercised in the Owner’s best interest. I think this is often an unspoken expectation and I know that most Architects do this without exception, but in my opinion, spelling this out helps both parties establish a framework for how decisions will be made.
The A Team Clause
Despite what the heading of this clause suggests, you can’t expect to have design-winning Architects on every project, but there should be a minimum standard of credentials that you should expect from everyone that touches your project. This clause established the minimum expectation that the Architect’s should meet. Most firms automatically meet these criteria simply because they strive to hire well-qualified people, but I have been at firms where some staff lacked any kind of meaningful credentials. Setting a minimum standard clarifies your expectations for who will work on your project.
No matter how good your team, without the right number of resources, you could experience problems with quality and schedule. I like to document the Architect’s responsibility for adequately resourcing a project to meet agreed upon schedules. If you want to be more specific, don’t be afraid to discuss exactly how many people will be needed and the exact date your drawings will be done.
Oversight is just as critical as resourcing. Even well-credentialed staff must have oversight from the Architect of Record. Establish up front that your expectation is that the Architect’s staff will be properly supervised. Setting this expectation up front will ensure that your Architect does not wait until it’s time to submit the drawings for permit approval to review them for the first time.
Establishing a standard for the documents produced by your Architect is a difficult task. There are many interpretation for what constitutes “professional standard”, but the one undeniable standard all Architects must meet is the standard of their State Licensing Boards (or other licensing entity). This is the only true and enforceable standard that both the Owner and the Architect should expect. Anything more would place an unreasonable burden on your Architect. Anything less would deprive the Owner of the value they have paid for. Establishing this up front mitigates conflicts and establishes a clear measure of what both parties should expect.
A sufficiency standard establishes that the amount of information and detail that the Architect will provide in their documents will be sufficient for it’s intended use. This means that if you are releasing drawings for permit, the building official will have enough detail to confirm code compliance. If you are releasing drawings for bidding, the drawings will be sufficiently detailed for a contractor to estimate the work. And once the drawings are issued for construction, they will be sufficiently detailed for a contractor to build off of them. This seems obvious, but I cant tell you how many times I have received drawings labeled “For Construction” but were missing key elements like a hardware schedule or something like that. Establishing this standard up-front clarifies responsibilities.
What happens if the Standard is not met?
The next part of this is that you need to define what recourse the parties have when one of these standards are not met and an error or an omission occurs.
Remediation of Drawings
The first and easiest is remediation of the drawings at no additional cost. Every Architect I know does this automatically when something is missing or incorrect on their drawings, but it’s worth documenting to ensure alignment.
Rip and Tear
The next option is to establish a rip and tear clause. Rip and Tear clauses are very hard to negotiate, but when done properly it establishes protections for both the Owner and the Architect. To negotiate a rip and tear clause, you first need to establish a percent margin for error. No set of drawings is perfect and no court will ever accept a standard of perfection, so to make your clause enforceable, you must have an open and candid conversation about what margin of error you should expect. The next part about rip and tear clauses is that the Owner should not expect this clause to cover expenses the owner would have otherwise incurred. This means that items that were omitted from the drawings don’t automatically mean a payday for the Owner. If an omission causes the contractor to perform rework or extra work, ONLY then does this clause mean the Architect is liable to the Owner.
Negotiating these terms may make both parties uncomfortable, but I believe the clarity this conversation brings to the expectations and obligations of both parties is a far more valuable.
Accompanying this article I’m making the presentation available for download here.
What about you? Have you ever negotiated a standard of care? Do you agree with the clauses and sections I have proposed? Are there others you would add? Tell me your stories.
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