Construction collaboration to achieve design intent

February 27, 2017

Paul Potts portraitLAW
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:

  1. Their presence instills confidence in the owner that will be important when things go wrong.
  2. 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.
  3. 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.
  4. The longer it takes to get answers to field questions, the less likely it may be that contractors will cooperate by asking them.
  5. 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.

What is the basis of collaboration?
It is difficult to say who knows more about the building under construction: the architect/engineer or the contractor. Each knows something different about the same thing.

The architect/engineer has categorical knowledge and aesthetic appreciation of the building obtained through programming discussions with the owner and months of design development. This knowledge and visual information is immediate, direct, and extremely useful to those constructing the building.

The contractor has intuitive knowledge acquired from years of practicing its trade and working cooperatively with others to construct buildings. The means and methods of constructing a building from a two-dimensional depiction comprise the contractor’s institutional knowledge. This company knowledge is passed along from one management team and one generation to another, becoming the bedrock of its business. The contractor is the final examiner of the building documents; further, likely having worked on similar projects, he or she can be a valuable resource to the architect/engineer.

A directed, collaborative approach to construction representation has many benefits for the architect/engineer. However, the architect’s construction representative may need better training in how to control the risks associated with fieldwork. This may make construction administration more expensive, but it will reduce risk.

To minimize the legal hazards of construction collaboration, the architect’s construction administrator should be guarded in conversations with the contractor. He or she should stick with categorical knowledge and carefully researched information from the building documents, avoiding sidetracked discussions of the contractor’s means and methods. The CA should always make a written record of any discussions about the documents, sending a copy to the owner, construction manager, and contractor. A written report, with photos of every site visit, should also be filed—sometimes a single photo will alert a team member to something amiss.

The architect/engineer’s withdrawal from active construction participation has created a vacuum that is being filled by other enterprising companies offering a range of accounting and construction services to the client. Many of these services are simply knock-offs of those traditionally provided by architect/engineers, but lack the same level of acumen, categorical knowledge, and self-interest.

By walking away from an active construction administration, architects could be leaving the fate of their projects in the hands of others who may lack commitment to the design intent—the natural province of the architect/engineer. Instead of paving the way for others to get paid for an imitation of the services that architects traditionally provided, the A/E should be pricing its services to include the cost of additional risk onsite collaboration entails.

The architect/engineer has the professional training, categorical knowledge, and experience to guide the construction to its ultimate destination—the achievement of the design intent. The contractor has the skills and experience to create the design intent out of the two-dimensional plans and specifications in cooperation with other contractors. This natural collaborative relationship should be encouraged, not avoided.

Further reading…
This article represents the research and opinions of the author. It is intended for general information purposes only, and does not constitute legal advice. The reader should consult with legal counsel to determine the complex interaction of laws, suggestions, and illustrations of specific situations.

Paul Potts is a technical writer and construction administrator. He has worked in the construction industry as an independent contractor and administrator for architects, engineers, and owners in Michigan. Potts can be contacted via e-mail at paulpotts1@comcast.net[1].

Endnotes:
  1. paulpotts1@comcast.net: mailto:paulpotts1@comcast.net

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