LAW
Paul Potts
Often enduring more than a century, masonry brickwork is testimony to the traditional collaboration between architect, engineer, and mason. Unfortunately, many architects and engineers have curtailed their collaborative construction activities, perceiving the risk of litigation as too great. Some of this fear is justified. Experience has shown litigation resulting from construction-related duties, obligations, and general activities is significantly greater than litigation from other sources.
The American Institute of Architects (AIA) seems to perceive casual conversation with contractors on the jobsite can be too easily misconstrued (intentionally or unintentionally) as new information about the plans and specifications, or as approval of deficient or defective work. It appears there is a belief architects can achieve their professional goals without taking the extra risks associated with collaboration with contractors, or active observation of their work.
AIA standard form agreements are the most frequently used contracts for hiring architect/engineers and contractors in the United States. In 2009, AIA B132-2009, Standard Form of Agreement Between Owner and Architect, Construction Manager as Adviser Edition, and AIA A232-2009, General Conditions of the Contract for Construction, Construction Manager as Adviser Edition, were both revised. In the new editions, AIA drops the phrase “the architect shall endeavor to guard the Owner against defects and deficiencies in the work,” and substitutes a lower standard of diligence.
With this change of language, the architect/engineer’s obligation was reduced from guarding against deficiencies and defects to reporting any known deviations from the contract documents and observed defects and deficiencies in the work—a weaker standard. Other modifications of the agreements and general conditions make the contractor the sole guarantor of the conformance of its work with the plans and specifications.
Architects and engineers have years of academic training and public licensing to their credit, and have spent years developing their professional practice. They have often gone through months of discussion with the owner-client developing the design intent, and many more months selecting products, designing the building, and engineering site improvements and building systems. After all this effort and with so much at stake, why are they leaving the success of their projects in the hands of others?
Their absence from the construction activities can put them out of touch with the daily developments. Many errors and omissions, once built, cannot easily be corrected. For example, fire suppression contractors working under a performance specification running their piping through a highly visible atrium, or exterior lighting sconces being placed directly under a roof drain outlet. Similarly, swimming pools 0.3 m (1 ft) short of competition length would prevent a high school from hosting competition events for the life of the building. With a concerted construction administration program, these errors could have been detected and corrected before they became part of the building.
Architects/engineers have many other good reasons for maintaining an active presence at the site:
- Their presence instills confidence in the owner that will be important when things go wrong.
- Errors and omissions are disconcerting and damage the architect’s credibility with the owner, which is worse when the architect has not been monitoring the construction and the mistake gets built in.
- Contractors, who are treated as collaborators in construction, are more likely to bring mistakes in the construction documents to the attention of the architect/engineer.
- The longer it takes to get answers to field questions, the less likely it may be that contractors will cooperate by asking them.
- There is always a blame game going on at the jobsite. For better or worse, the owner is influenced by this gossip, and it affects the owner’s perception of the architect’s competence if he or she is not staying atop this narrative.
