LAW
Paul Potts
All claims and disputes between the owner and the contractor on projects using American Institute of Architects (AIA) A232, General Conditions of the Contract for Construction (Section 15, “Claims and Disputes.”) must be submitted to a first-fact-finder for investigation and a written decision before proceeding to mediation or arbitration. In AIA B132, Owner–Architect Agreement (Section 3.6), the architect is assigned the duty of initial decision-maker by default, but it is left open to select someone else.
The ‘initial decision-maker’ is referred to nine times in the General Conditions and twice in the AIA Owner–Architect Agreement. While this function of the architect’s representative is often used during construction, it is rarely referred to as the initial decision-maker and the concept is poorly understood.
For example, in the construction of a remodeled building, the fire alarm contractor requested a change order to pay for a software upgrade to an existing fire alarm panel that was being reused and expanded. The claim was referred to the architect’s representative for review. Taking stock of the fire alarm specifications, the representative saw the electrical engineer had clearly included any upgrades to the existing panel software under the summary paragraph. It was clear and unambiguous—the new software was already included in the contractor’s work. The contractor recognized its responsibility and withdrew the claim. The resolution of this claim was a decision in favor of the owner and architect based on the information in the specifications. However, most decisions have much more challenging criteria.
In another claim, the electrical contractor brought the following issue to the architect’s rep for review. To protect maintenance workers, the electrical code requires a lockout switch in plain view of the equipment requiring service. The switch was not shown on the drawings. The decision-maker decided in favor of the contractor and included the switch in a change order on the basis that other lockout switches required by code had been shown on the drawings, but this one was not.
Initial decision-maker
The role of initial decision-maker was created by the AIA committee to prevent minor claims that could be resolved with simple research of the contract documents from becoming a drag on progress or embroiling the project in more expensive forms of mediation or dispute resolution. Architects are often best-suited to act as initial decision-makers because they are already informed about the plans and specifications, and are familiar with the project. With this knowledge (and provided facts are available), they should be able to produce a clear and concise decision more expertly than an outsider.
The decision-maker must endeavor to be honest and fair when deciding claims—not showing favor to one or the other party— according to AIA B132, Owner-Architect Agreement (section on fairness). In AIA background writings, the role of initial decision-makers is referred to as a quasi-judicial function—referring to the challenge of providing evenhanded interpretations of the documents, even when their own interests and the interests of the client are involved. This is stated by Patrick Mays in The Architect’s Handbook of Professional Practice Quasi-Judicial. Decisions are final unless the contractor or the owner demand mediation or arbitration.
When finding in favor of the contractor against the owner, based on research that uncovers errors in the contract documents, the architect’s representative is harming their employer. When the representative finds against the owner in a claim based on hidden conditions, the decision-maker harms his or her client. Even though these situations will test the architect’s commitment to being equitable, the decision-maker must not try to tip the outcome in favor of one or the other. This will only lead to more expensive methods of dispute resolution, slowing progress, and dissolving the architect’s effectiveness in settling claims and disputes.
The architect is served best by a representative for construction who has an established relationship of trust with contractors and a thorough knowledge of the plans and specifications. The architect’s representative should stick to strict constructionism when interpreting the documents. It is either there or it is not there. Using terms like ‘design intent’ to cover up errors and omissions will not work. Design intent is intended to prevent a deliberate or accidental dumbing down of the design, but it is rarely useful for interpreting the contract documents to settle a claim or dispute between the owner and the contractor.
Paul Potts is a writer, copywriter, and specification writer and has worked in the construction industry as an independent contractor and construction administrator for architects, engineers and owners in Michigan. He can be reached at paulpotts1@comcast.net.
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