Defining the End of the Design Professional/Client Relationship

The beginning of the relationship between an owner and a design professional is usually well defined. There should be a written contract that defines the scope, price, and time of the project. Closing a project relationship, however, can often be a more ambiguous process, and can give rise to differing expectations, and ultimately exposure.

Generally, the design professional contracts to prepare plans, submit them for approval, and if agreed upon by the parties, conduct construction management or oversight. The owner submits the approved plan to the builder or contractor. In submitting the plans, the owner warrants to the builder the plans are sufficient for use. Frequently, after approval, a process of clarification occurs which usually consists of the submission of requests for information (RFIs) from the contractor to the owner. Under the reading of most contracts, the design professional should cooperate in interpreting the plans during construction, although the contract may not call for construction observation or inspection.

What happens then, when the contract provides only for design, and subsequently during construction, the design professional is contacted to deal with an issue that has arisen. Design professionals are frequently called back to resolve construction issues, or to conduct redesign of plans during the course of construction. The terms of the original contract do not provide for scope and price for this involvement. The work may frequently incorporate the plans and work of other design professionals not originally involved in the project.

By offering opinions or analyses after the initial contractual obligation is over, the design professional moves into uncharted waters, extending duties and obligations well beyond the original terms of the contract. More importantly, the nature of the analysis, its ultimate use, and whether it will be relied upon by the owner and contractor, are all undefined. If the project is in trouble and the design professional is called in to "help," rest assured any subsequent plans, analysis, or interpretation will become part of the dispute.

What then should you do to a client who calls back on a project after your obligations have ceased? Renegotiate a new contract, or subsequently execute a change order specifying the exact scope of your work, the exact information available to you, and the work that has been done since your last involvement. In this manner, you will clearly identify the material that you were relying on, and the point at which your prior involvement ceased, and your current analysis and investigation begins. By clearly identifying the new scope, time for performance, and the cost of the work, you will avoid any misunderstanding with the owner about additional work done. It is also important to differentiate between the work that isolates to the "old" contract and new work under a different contract.

Clearly defining when you are leaving a project brings clarity and definition to your role, and significantly reduces your potential exposure.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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