Powell Trachtman Logan Carrle & Lombardo

Design Professional's Practice Bulletin

Volume 3, Number 3 — December 1999

This Bulletin addresses recent developments affecting Design Professionals as well as business concerns as important as the specific professional and technical issues they face.

Editors: Neil P. Clain and Richard J. Davies

The New B141—Concluded

By Gunther O. Carrle, Esquire

This is the third in a series of three articles discussing the AIA's 1997 edition of B141. The previous articles have addressed changes to those provisions addressing the Architect's role in the project, the scope of services provided by the Architect, the Architect's responsibility for the cost of construction, and the Architect's compensation on the project. In this last article we address those changes to B141 concerning: the architect's ability to delegate design; the architect's responsibility for certain construction means and methods; the suspension or termination of the Architect's agreement; the methods of resolving claims and disputes between the Architect and the Owner; and the mutual waiver of consequential damages. We end the article with a discussion of miscellaneous new provisions whose impacts should be noted for the purpose of completeness in your review of this new document.

Delegation of Design

Perhaps the most controversial revision of B141 is the addition of a provision permitting the Architect to delegate certain aspects of the design of the project to professionals retained directly by the contractor. Specifically, Paragraph 2.6.4.3 provides:

"If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Architect shall specify appropriate performance and design criteria that such services must satisfy. Shop Drawings and other submittals related to the Work designed or certified by the design professional retained by the Contractor shall bear such professional's written approval when submitted to the Architect. The Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certification or approvals performed by such design professionals.

The inclusion of a specific provision addressing design delegation is simply a recognition of a practice common on many projects; however, several points must be kept in mind. First, the inclusion of such a provision, and the delegation of certain aspects of design, do not relieve the prime professional of responsibility for the adequacy and appropriateness of the design criteria. Second, the ultimate question of whether aspects of the design can be delegated from the Architect to other professional notwithstanding the Architect's contractual chain is one of state law, particularly if the Architect is obligated to sign and seal the entire set of documents including those related to the design which has been delegated. As a rule of thumb, it would seem that the design of components which can truly be segregated probably can be delegated; however, the design of components which are integral to the project as a whole, i.e. structural connections, cannot be fully delegated.

Responsibility for Certain Means and Methods

Although the revisions to AIA Document A201 — General Conditions of the Contract for Construction — is not the topic of this article, one revision to that document merits some special attention since it relates to one of the principal subjects of concern in B141: who bears the responsibility for construction means and methods. As briefly outlined in our discussion of the scope of services, the 1997 AIA documents continue to make clear that the Architect is not responsible for the contractor's "means, methods, techniques, sequences or procedures of construction." Yet, there has in the past been some discussion regarding the proper allocation of responsibility in those situations when the Architect or its subconsultant describes mandatory means and methods to achieve a particular result. Paragraph 3.3.1 of the new version of A201 attempts to deal with that issue:

"If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for any resulting loss or damage." [Emphasis added].

In our view, this provision can place the Architect squarely in the debate regarding the safety of Architect-specified means and methods. Consequently, it is our opinion that this provision should be used only rarely, and that means and methods be specified only when absolutely necessary to achieve a particular result. Further, this provision should be revised to place an affirmative duty on the contractor to propose alternative means and methods that will satisfy the contractor's safety concerns and the Architect's concerns regarding the result. Where necessary, the contractor should be obligated to include the recommendations of an appropriately credentialed design professional. Our principal concern is that, although the clause places the burden on the Owner, the Owner will, almost certainly, turn to its professional for advice. Our suggestions are provided to avoid that scenario.

Claims and Disputes

The new B141 now mandates non-binding mediation as prerequisite to other proceedings. The new B141 still calls for arbitration by the American Arbitration Association as the second step after mediation. The provision includes the joinder of consultants as part of any Arbitration with the Owner, but does not call for a similar joinder regarding mediation.

Mutual Waiver of all Consequential Damages

The new B141, and the agreements between the Owner and Contractor, now call for the waiver by both parties of all consequential damages. Consequential damages are those damages which are the natural consequence of the breach of a contract between two parties; for example, consequential damages include lost profits, carrying charges, lost rentals revenues, etc. The inclusion of such a provision, particularly within the Owner/Contractor agreements, is likely to dramatically reduce the value of most construction-related litigation. However, it is likely that most attorney representing Owners and Contractors will try to delete such provisions.

Miscellaneous Points

A variety of other provisions have been added to the new B141 which bear noting:

The Architect shall review applicable codes and respond in the design to the requirements imposed by governmental authorities;
Owners must now disclose known errors, omissions and inconsistencies in Instruments of Service;
Architects must maintain confidentiality of information specifically designated by the Owner as confidential;
Architects must avoid conduct which appears to compromise Architect's professional judgement; and
Architects may rely on the accuracy of information and services supplied by the Owner, but must disclose errors, omissions or inconsistencies of which the Architect becomes aware.

The provisions regarding conflicts and confidentiality were frequently the topic of addenda prepared by Owners prior to these 1997 revisions. While avoiding the violation of such provisions should not be difficult for most Architects, it is important to recall that even an innocent violation is now a breach of contract which could generate painful consequences.

Certainly, the most significant of these "miscellaneous" changes is the obligation of the Architect to advise the Owner of known "errors, omissions or inconsistencies" in information supplied by Owner. In the past, the Architect could rely on this information without question. The 1997 revisions now require the Architect to disclose known defects. Although the revisions do not impose an affirmative obligation to review the information for errors, the duty to disclose known errors "opens the door" to a wide variety of arguments seeking to impose liability on the Architect for using defective Owner-supplied information.

Conclusion

The revisions to the AIA Documents are extensive. The changes to the B141, in large part, enhance the Architect's ability to provide a variety of services and to create a more realistic connection between the Architect's fee and the Architect's scope of services. The revised documents also do an excellent job of clarifying the roles of the contracting parties and minimizing the opportunity for confusion and misunderstanding. However, it is likely that the documents will substantially alter the way in which most firms deliver services. It is therefore absolutely essential that any firm which intends to use the new documents first conduct a careful review of them with the project staff to confirm they understand the nature of the changes, particularly those we have highlighted in this series of articles.

This bulletin is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel