June 18, 2014

Limited-Scope Design Services — Deal With the Risks to Avoid Disaster


Design professionals are advisers. They help their clients to make aesthetic and technical decisions necessary to successfully build a project. The value lies in the clients' confidence that the advice is reliable.

Two factors govern this reliability. The first, professional expertise, is personal to the adviser. Architects, engineers, and other design professionals bring knowledge and understanding gained from education, training, and experience. Clients confirm their qualifications by looking into the professionals' reputations, resumes, and credentials, including professional licensing.

The second factor is specific to the problems a client needs to solve. This is the quality and quantity of information that the professional has about the client's particular requirements for any project. The professional gets this information through investigation and inquiry, which is guided by his or her expertise and which can consume considerable time and resources that will be incorporated into the professional's fees.

For example, an architect begins the design of a new project by consulting with project owners and users to establish the project goals and budgets. He or she also investigates site-specific conditions and regulations in order to understand what constraints apply. The architect organizes and analyzes this information to create a project program that confirms the client's objectives and informs the architect's design proposals. Without enough information at the front, the architect and the client both risk the disappointment and expense of learning the requirements after the project is built.

As another example: an engineer who is asked to provide the structural analysis for a new roof may want to investigate the adequacy of the existing foundations. The extent of the investigation can vary from casual observation to uncovering and testing of materials in the ground. A deeper investigation would provide more information that would further decrease the risk of a roof failure, but the information might not be worth the expense. Determining how much investigation is appropriate is a matter that is usually left to the engineer's professional judgment. At risk are the construction investment and personal safety.

And as yet another example, architects and engineers are regularly called on to make judgments about the adequacy of construction work performed under their observation. The professionals review appropriate samples, information submittals, or work in place before offering their opinions. Their clients rely on certifications of those opinions when accepting and paying for completed work, in order to reduce the risk that the work will not need to be replaced or repaired when the project is complete.

Professional inquiry and investigation are expensive. Clients do not want to pay for more than they need or have the same analysis done more than once. To avoid the expense, a client may want to reduce the scope of the professional's involvement for a commensurate reduction in fees. The client may believe that its own experience and expertise are enough. Commercial clients or contractor clients (e.g., design-build projects) may have their own qualified staff and standards for the project. Such an adjustment is perfectly reasonable, as long as the client and the professional have clearly communicated and documented the adjusted risks and responsibilities before proceeding with the work.

Design professionals who look only at the hours saved by a scope reduction miss the additional risk inherent in relying on information provided by others. The success of the professional's efforts is directly related to the quality of the information on which he or she relies. A problem with the design arising out of a flaw in the analysis will harm the project and will doubtless lead to problems between the professional and the client concerning who is responsible for the problem — the client who provided flawed information, or the professional who used it to prepare the design.

Avoid these problems by thinking about them before they arise. Clients, consider the source of information you intend to use. Is it applicable to your project? Is it up to date? Is it insured? If you intend to rely on your own expertise, be sure your resources are reliable. If you intend to rely on plan reviewers and permit inspectors, don't! They will not be responsible for your losses if defective documents or work gets past their scrutiny. When you have considered these things, talk to the professional about them; make sure you understand what you are getting in the transaction, and put it all in writing.

Professionals, consider your risks. Clarify your assumptions and confirm that the client understands who is responsible for discovering flaws in the inquiry or investigation. Consider how they will be corrected and who will bear the cost. Do not take responsibility for the adequacy of the information you cannot verify. Talk to your client about all these matters; make sure you understand what is expected of you, and put it all in writing.

Managing risks and costs is the essence of any contract negotiation. When entering a limited-scope professional engagement, it behooves both the professional and the client to examine the real risks and responsibilities and to talk about how they will be distributed. This exercise, coupled with reducing the terms to a written agreement, can be instrumental in avoiding disaster on any construction project.

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. For more information on this topic, please contact marketing@jordanramis.com or call (888) 598-7070.

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