Defensive strategies for reducing the cost of errors and omissions
If architects and their insurance companies believe any dialogue between the architect’s representative and the contractors will invariably lead to a perception that the design is open-to-interpretation (a risk they are unwilling to take), they will simply have to forgo perhaps the most powerful tool for minimizing the cost of errors and omissions—the contractor, who is the last party in a position to call out an error before it gets built into the project.
Having a second architect, engineer, or designer review an intern’s work is mostly a waste of time and money. The supervisor has likely not been present at all the meetings where decisions were made and just does not have enough time to do all the calculations a second time or to go over the whole process again.
There are a few good defensive strategies for minimizing the costs of errors and omissions. Of course, carefully examining a contractor’s quote for corrective work is among them. However, the best method is to encourage contractor’s superintendents to question aspects they suspect are in error, instead of building them into the project without question. Trade contractors have likely built many similar projects and are quite knowledgeable about what is questionable.
American Institute of Architects (AIA) General Conditions require contractors who become aware of errors or omissions to bring them to the attention of the architect/engineer (A/E). Most contractors consider it common courtesy to ask about suspected particulars. However, if the time frame for getting answers begins to slow their schedule or if they have to fight for compensation when it is due, they will not ask in the future.
The first opportunity to establish a working policy with contractors to encourage them to ask about suspected errors or omissions is during the pre-bid and post-bid interviews. Contractors’ knowledge of errors and omissions at this stage is limited, because the estimator and project manager who attend these meetings have only studied the drawings for bidding purposes. However, even at this stage, the contractor usually comes to the pre-contract meetings with several questions. It is important to respond quickly and set a pace for a constructive dialogue in the future.
It is typically in the morning, when the jobsite foreman is studying the drawings and assigning work for the day, when they come across suspected mistakes in the plans. Unfortunately, there is usually a crisis mentality at this moment, when he or she is ready to start work for the day. This is the last real opportunity to getting out ahead of errors and omissions. The architect should accommodate the foreman with a quick, written answer.
Architects unwilling to pursue this method for minimizing costs for errors and omissions is not doing their duty as the owner’s representatives.
Preparing the client
The best way to prepare the client for errors and omissions is to discuss the issue during contract negotiations. It should be approached in a businesslike manner as just another term of the agreement in the spirit of mutual benefits. At this point, the owner has made a decision, usually after careful deliberation, to hire the A/E and is unlikely to back out at the mere mention of errors and omissions.
There is a huge benefit to having this discussion when the decision-makers are still at the table, rather than later when lower level bureaucrats are asked to sign the first change order. Presidents, CEOs, and board members are comfortable with making difficult decisions, while lower level bureaucrats typically do not like making decisions. The CEO will look at the issue with the confidence of knowing he or she will not lose a job for creating policy; lower-level bureaucrats do not make policy, and confrontation could arise if they are pushed into that role.
When should the A/E pay for mistakes?
There is no hard and fast answer to this question. A mistake of a few thousand dollars on a small budget project can wreck the owner’s finances, whereas on a $50-million project, it is barely a hiccup. For this reason, using percentages as a threshold has limited usefulness without being specific about the scale of the project.
This author worked for an architect who made a point of discussing errors and omissions during contract negotiations. To one client who wanted a rule to control when the A/E would be asked to share in the costs of errors and omissions, the professional gave him a clause in the agreement: errors were not to exceed two percent of the budget ($50 million project) and errors and omissions combined were not to exceed three percent or a combined $1.5 million. The architect was comfortable with these numbers because they were familiar with the type and scale of the project and had completed several similar designs in the past. The project was a complete success, partly because the architect and client had an understanding going into the project that there would be a reasonable cost associated with the errors and omissions, and it never became an issue.
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.
I strongly agree with the need to include a discussion regarding errors and omissions with the owner during negotiation of the design contract. I am a general contractor who recently completed a project where this did not occur. Though the total percentage of errors and omissions costs combined did not exceed 1%, the owner decided midway through construction that these costs were unacceptable, and demanded that the A/E reimburse them. This caused a nearly complete halt in A/E approvals of ongoing change requests, and attempts to revise changes that had been approved months in the past. A very bad taste was left in everyone’s mouth, and it absolutely could have been avoided by establishing a threshold of acceptable E&O costs from the beginning.
I have an issue with our AE doing his job. I have a 5-story building that has had site plan approval
already and I can’t get him to respond to RFIs, upload the site plan to the building department, call the reviewer or answer city comments. He refuses to perform, and we are in a place with site work started we will be left with no building plan approved if these things are not completed. The city reviewer recommended that we fire him, but we would possibly have to hire another and start all over. We have fulfilled 90% of his contract.
“§ 2.2 The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.”
“If architects and their insurance companies believe any dialogue between the architect’s representative and the contractors will invariably lead to a perception that the design is open-to-interpretation” It’s hard to get past this patently false mischaracterization of architects’ receptivity to dialog. Need to make changes due to field conditions? OK, let’s put our heads together. Want to subsitute inferior products for those specified? Sorry, not at liberty to agree to that.
“Responsibility for this error fell to the mechanical engineer.” Not so. The contractor ordered the mechanical equipment in advance of submitting shop drawings for the engineer’s approval. Such drawings were required by the contract to ensure that the contractor had performed his contractual due diligence of verifying field conditions to ensure that the installation, i.e., means and methods could be performed. The owner’s record drawings did not provide measurements for the plenum clearance, which, in any case was the contractor’s duty to field verify. Did he? No he “assumed.” What is the old adage about the word “assume”?
Stourley….using the old “you didn’t discover and prevent my error from becoming reality, so it’s your fault” defense, kind of hollow.
The shop drawings were approved before the contractor ordered the equipment. Sorry, I didn’t make that clear. Thanks for your comments.
Irrelevant if they were approved or not. The designer sole sourced the particular equipment and as a matter of implied warranty the designer is responsible for the omission.
Asking the GC to act in the capacity of a professional engineer or architect exceeds reasonable and prudent expectations
Hi Jonathon, Some how we are not connecting. I said in my article that the “mechanical engineer” was at fault. The mechanical engineer was on the architect’s staff. Yes, the architect-engineer was responsible for this error. It is not an ommission under the description provided in the article, this is an error, an ommission is a value added change order, an error is an outright loss. The architect, did not ultimately pay for this error, because there had been a precontract agreement that the owner would pay costs of errors and omissions if the total did not exceed 3-percent of the construction cost. Thanks for p[articipating in this conversation. I truly appreciate your interest and comments.
Heres a scenerio I am dealing with: We are building a custom home and once our plans were submitted to county for approval we hired our builder. There have been some major errors our architect made thus far such as designing a driveway only 18ft wide (we would not be able to get into garage), moving the position of our house without our knowledge and the latest is he never designed the house with an HVAC. Due to no HVAC in mind with the design of the home, our builder has been having to go back to find where to put the ducts and the systems. He finally presented a system that would have 1st floor vents on the ceiling-the issue is most of our great room is pitched to the 2nd floor so the heat would go straight up and we would be left with a cold room. Further, I told my architect we wanted vents on our floors (I have it in email as well). The major issue is now the builder has to go back in, take out the floor joists and excavate and dig in order to get an under floor system. This will cost an additional $10-$12K. The architect is not taking any responsibility for this. To note he did design two homes next to us with a similar floor plan but “remembered” to keep the design in mind with an HVAC system, their vents are on the floor. Shouldn’t he be responsible for this?
Sorry to hear this Jean. I think you have a strong argument against the architect for failing to provide reasonable Duty of Care in the development and design of your home. Did the builder or architect provide you with a Schedule of Values for the cost of the new home?…typically this document is called an A.I.A. G703/G702. This is essentially a shopping list of all the projects costs, line item per line item. If this were provided, a line item cost for HVAC would have been indicated at $0.00 cost. Sounds like this document wasn’t provided by either the builder or the architect. Your email sadly fell on deaf ears. Moreover, the architect did not perform a constructability review with the contractor…though this is not very common among a designer and builder.
Keep a well documented and itemized list of the costs associated with the corrective work should you pursue damages.
Hi Jean, I am very sorry to hear your story. I cannot really make recommendations because I only have your side of the story, but I would like to ask you a few open ended questions. Do you have a contract with the architect? Does the contract decribe the services to be rendered by the architect? In what climate was your house built? Would the climate require residentail heating and cooling? Did the contractor ever comment to you, before completing construction, there wasn’t any heating or cooling equipment. Is there a basement? Could you install infloor circulating hot water heat. The additonal 12K you refer to is not an extra cost, you did not pay for the HVAC system in the first place. Please reply. Have you paid the architect?
We have a new school project where on one of the drawings the scale was listed as 1/8″= 1′ but it should have been 1/16″ = 1′. This drawing is only for a cable tray system so there is not any other systems or dimensions provided. Do to the size of the project it resulted in our takeoff being 510′ short of cable tray. We submitted a change order and the engineer called declaring we should have caught the mistake and they are not responsible. I agreed that we should have caught the mistake but we did not as well as the suppliers who quoted the cable tray also only had half of what is needed. Our position is the design team listed the wrong scale and just because we did not catch it does not mean it becomes our responsibility. I have been an estimator for 28 years and have never had this happen.
Hello. I know this is late in the conversation but hoping your news feed pick up my additional request. I am Prime Consultant on a $12.5 M hospital renovation that is multi-phased, requires occupant decanting, and had little to no as built drawings to start from. the renovations occur in three joined building with the older being 50 years old. We are at the conclusion of the project and total change orders are approx. 3.5% excluding owner required changes. We are attempting to reconcile the percentage based fee now to be compensated for final project cost. the owner’s rep is refusing to recognize all the omission related change orders stating that we ought to have known better and clearly items were absent from the drawings. EG Mechanical forgot to add pull stations throughout, or Mechanical forgot to add exhaust fans in service rooms. The client is adamant on not paying us for the corrected design solution because they are deemed as errors and as items that “the architect should have foreseen” (language of the contract). I am hoping to find some very impelling precedent or example that I can use to meet with the owner to explain that we are entitled to participate in CO’s that required our design solution even though our Mechanical consultants did not include the design elements in the first instance) Any thoughts?
Plumbing designer neglected to include a note in the plumbing drawings for a public school that was to state that there are two bathroom buildings. There is nothing in the plumbing design that would have made the plumbing bidder aware of two not one building. The electrical and mechanical engineers made it clear in those drawings and there is only one small note imbedded in the architectural drawings. Nothing at all in any plumbing bid documents . Is the Plumber responsible for the second building
disclaimer…I am not a legal professional. From similar experience, can describe a typical response from owners and construction managers.
As a subcontractor, you may or may not be…but the prime contractor (general contractor) certainly is.
Assumption (based on there were other trades involved) is that there is a Prime contractor that was responsible to understand the project, parcel out drawings to the subs with instructions.
If the prime gave you a complete drawing set, but you ignored it and looked only at the plumbing drawings, then you may be responsible. If you only received plumbing, with no other instruction, you and the prime will need to negotiate…
I recently had an architect design a picnic shelter with outdoor fireplace. It was known to the architect that the picnic shelter was to be placed on the south side of the shelter. He did not located the fireplace on the site plan and the contractor poured the foundation on the north side of the shelter. This was clearly an error on the architect’s part but shouldn’t the contractor hold some accountability for making an assumption and not clarifying the location prior to pouring concrete? Who pays for the damages?
Wonderful information, thanks a lot for sharing kind of content with us. Your blog gives the best and the most interesting information. I wonder if we can gather such practical information about dealing with errors and comission. This is a great blog!!
Hi, we recently had a contractor to remodel our shower.
We then were looking for suggestions from him on toilet preferences.
He gave us suggestions but told us we would most likely not be able to order from our local Home store because of the 10″ roughin… he measured.
He offered to order from his supply house which he did….we could not order from a supply house because we are not a licensed plumber.
Long story short, it did not fit..He refused to take back, neglected to produce a receipt when asked, never disclosedtbat all sales were final,and now is saying it is nonrefundable per his supply house.
I loved your blog and thanks for publishing this dealing with errors and omissions!! I am really happy to come across this exceptionally well written content. Thanks for sharing and look for more in future!!
Hi There ! I as a long time MEP BIM manger am constantly battling with general contractors . There are a few issues, but the major issue is the where the line is from coordination and redesign. We consistently receive poorly planned/designed documents that simply are a wishlist . Examples are duct with widths of 20” with ceiling space of 10”. To me that is a redesign and not coordination any more, and revises drawings should be issued by the AE team showing the revised duct size, placement, and any added cost for both any added duct and recoordination should be priced and submitted and approved before the change is implemented into the bim model. However most gcs don’t agree and constantly call this coordination and don’t agree that there is an added cost . I have looked online a lot to find backup for what I believe (that the engineer owns any issues that require completely rerouting and or resizing if they’re design doesn’t work) and can it find anything. Any advise ?
Very informative blog.
Thank You for sharing your kind knowledge.
Kind Regards
Interior Architects.
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Hello we are looking for feedback, and talking to several lawyers to decide who to hire to pursue this but want some feedback .
So my wife and I decided that we wanted to sell our home and build a home in another town because of the property taxes. So we looked for a lot, and found one that was advertised as “bring your own builder and build your dream home.” We looked at the location and it was exactly what we wanted. At the end of a street within a Ryan homes area that they had developed, and left two lots. So we bought it. Prior to closing I reached out to the county engineers office since they are in control of the initial permits for driveway and storm water, and must be issued before a building permit is issued or even considered. Prior to closing I emailed again to request my permit application and also went down to their office to look at the records for other utilities. All seemed ok, and I was told that before they could take my application for the permits, the property must be transferred into our name. On April 20,2021 we closed the deal. Shortly thereafter I again went down there and then was told that other items had to be done prior to issuing the permit and that I had to talk to the highway engineer who is in the county engineers office. This is when the problems all began. I had already hired a surveyor/engineer to create a site plan for the home we chose to build. When I went down there, I was told that the road had to be extended prior to them issuing the permit, and -that the property I purchased was not actually a lot that it was a plot/block and had to be replatted. And that there were things that had to be done prior with zoning. We went thru zoning and found out another couple were going through the same process. We reached out to them and found they were indeed sold land and not told that it was not buildable. By this time our engineer was working with the township and county and drew up a new plat and site plan. At some point the neighbor showed me where on his plat the county required he extend the sanitary sewer, the water and the roadway. His plat was drawn up prior to our purchase. He also showed me the plans which were approved by the county prior to our closing. In July 2021 we attended a zoning meeting and they approved our lot and plans. No where on our plat did they request a road extension or water extension. I then applied for the building permit and it was approved thru the Medina county building dept. The storm water and driveway permit was being processed. I then received an email from the highway engineers office that they notified the building dept. That before the permit was issued, the street be extended. That then triggered me to having to share expenses with the neighbor across the street. He had already contracted out the water extension, and after my giving him a quote for the sanitary sewer of 6800.00 he insisted that his contractor do it since he would do it for 4800.00. We both then agreed that I would do the street extension which required storm sewer installation. The cost for the street extension would be around 11,500.00. He then gave me a copy of the approved engineering plans. I then made arrangements to meet with the highway inspector and discuss the scheduling of the work. In November of 2021 the work began. The water extension was completed, and the contractor then began work on the sanitary sewer based off of the plan submitted by my engineer. I then began work to prep the area where the street was to be extended. After a lot of work and many attempts to install the catch basin on either side of the street connected by 12 inch RCP, we have determined that the engineering plans given to me by the neighbor and approved by the county were in accurate and the elevations of the existing storm sewer was incorrect by 19 inches. The plans as they were drawn up could not work. Further, the plans on file with the county for all these years have a numbers of errors. Nothing could be relied upon as it came to the storm sewer system. To date my wife and I have spent a lot of money. Further, the neighbors contractor has failed to complete the sanitary sewer and said he will do it when he digs the basement for our house since it was convenient at the time to hire him. We gave him a 3000.00 deposit for that as well. This is spiraling into a money pit. We gave the contractor over 10,000.00 another 2700 for sewer permits, approximately 10,000.00 or so trying to make the plans work which were defective. We decided that we needed representation on this. Are we right to feel like suckers…. The neighbor told us he spent over 3000.00 on these plans and demanded that he be given a credit in the overall costs. But cannot find the receipts once I asked for them which I now doubt they exist. He is blaming the county for certifying the plans without anyone doing field work. Yet the county has directed him to provide accurate and valid plans. His engineer cannot be found. All the work on the storm sewer in following these plans was a complete waste of time and money. No one wants to take ownership of these errors yet we have sustained the majority of the costs. We need to be made whole again by one of these parties. We have the zoning minutes from the meeting, and at page 10, the zoning director for the twnshp states that she had in the past told the broker that they should not advertise the lot as a buildable lot since it was not and that they needed to be told what they would have to do which the broker did not tell us. The questions is who is responsible. Im told that the neighbor carries the liability since he provided the bogus plans. Does anyone have any input?
The building department of my town issued a permit to remodeling. When the project is already with columns slabs and ready to put concrete of the 2 floor slab, and all the building inspections. One official discover that they approved 2 columns inside of the setback of the property. The building department put a stop work on the job with out. I don’t think this is correct. They should assume the responsibility of their mistake.