Architects Design While General Contractors Inspect, Right?
by Danielle Maya, Cotney Construction Law
(Editor’s Note: Danielle Maya is a partner at Cotney Construction Law and has over 20 years of experience as an attorney. Cotney Construction Law is an advocate for the roofing industry and General Counsel of Western States Roofing Contractors Association. Maya can be reached at (866) 303-5868.)
You have just been notified that your firm has been awarded your dream project and you are ready to get to work on the design immediately. However, lest your dream job become your biggest nightmare, it is crucial that you first take the time to understand the legal significance of the commitments you intend to make. Do you understand your contractual obligations with regard to observing and inspecting the project? Architects are a driving force behind the ultimate construction of a project. That vitality comes with significant risk.
Form contracts created by the American Institute of Architects (AIA) have become an industry standard. AIA contracts may be utilized with, or without, modifications to account for job-specific peculiarities. Even unmodified form AIA contracts have proven themselves reliable in protecting architects from liability. It is no secret that the AIA contracts are written in an architect friendly manner. Accordingly, non-architect professionals should exercise great caution when utilizing AIA documents.
From the client’s standpoint, the architect is likely the most qualified person to ensure sound design and that the structure is built according to the design specifications. It is in an architect’s best interest to see to it that their design is properly built, but not to the extent of exceeding the scope of their contractual responsibilities and assuming risks associated with the contractor’s obligations. Nevertheless, an architect will have obligations to ensure the design is built according to the design specifications.
The AIA updates its contracts roughly every ten years, with the most recent update occurring in 2017. The recent update made subtle but significant changes. Among those changes to the AIA’s form contracts are alterations to verbiage relating to the architect’s onsite visitation and inspection duties.
Generally, to fulfill the contractual administration obligations owed to a client, architects will have to get their boots dirty onsite. Any project inspection opens the architect up to a multitude of potential liabilities stemming from what the architect saw, or did not see, onsite. Of course, an architect cannot be everywhere, nor see everything, during a site visitation. However, should litigation ensue, an architect may likely hear that if they were onsite they would have caught the issue.
While architects cannot close their eyes during an onsite visit and remain willfully ignorant of project happenings, the AIA contracts account for the fact that architects are human. It expressly disclaims an architect responsibility in controlling aspects of the project traditionally associated with the contractor’s responsibilities, including safety measures. Further, it states that the architect will be liable only for their own negligent acts and not for the contractor’s failure to comply with the contract documents. An architect should never agree to strike this disclaimer language from its contract with the client. This provision can substantially help to reduce liability exposure for architects.
An architect’s contract administration duties under the AIA’s contracts primarily focus on observing, rather than inspecting, the work as it progresses. Unless otherwise agreed, an architect is not obligated to make comprehensive ongoing site inspections. The AIA’s recently updated contracts limit an architect’s duties to periodic site observations that enable an architect to determine if work is progressing in accordance with the contract documents. Should an architect observe or become aware of likely defects, the architect is contractually obligated to communicate that information with the client. Notably absent from the updated AIA contracts is the obligation of the architect to endeavor to guard the owner against defects. Rather, the architect’s duties towards the client only mention an observance.
Although the AIA’s contracts attempt to decrease an architect’s potential liability by scrubbing the word inspect, it still requires the architect to conduct an inspection when evaluating a project for substantial and final completion. The architect’s issuance of final payment is also directly tied to those dates. However, in an effort to have the client directly involved with these important milestones and further limit the architect’s assumption of risk, the AIA obligates the client to accompany the architect during the inspection. Because an express duty to inspect is counter-intuitive to liability limitation, the AIA contracts do not explicitly define the scope of the substantial and final completion inspections. At the very least, an architect must carry out its duties, including the duty to observe or inspect, in a reasonable, non-negligent manner. Alternatively, a prudent architect may negotiate with the client to decrease the scope of the limited inspection duties.
While the updated standard form AIA contracts have responded to adverse judicial decisions that affect the architectural community, risk remains inherent in the profession. A contract alone cannot free an architect of all risk. Because of the complex relationship between statutory law, common law, and the enforceability of many contract provisions, an architect should consult an attorney before entering into negotiations with a client or modifying an AIA contract.