In architects’ and engineers’ (A/Es) contracts with their clients (project owners), it is commonplace for the word “complete” (or its derivatives) to be used in the terms and conditions. In these owner driven projects, these types of contracts are routinely prepared by the A/Es’ clients (actually the clients’ attorneys).
Just a few examples:
- In connection with the scope of services, the design professional (A/E) shall promptly commence services as directed by Owner and diligently pursue completion of the services in accordance with the project schedule.
- The design professional (A/E) shall provide Owner with a complete set of drawings and specifications in the furtherance of the A/E’s standard of care.
- The design professional (A/E) shall provide Owner with a written statement of any changes to the Services, including the estimated time and cost required to complete any additional services and any proposed time or price increase or decrease.
- The design professional (A/E) shall provide a complete project as-built drawings and specifications to the Owner after project completion.
The word “complete” (or its derivatives) is what is called an "Extreme Word," and it raises a design professionals’ standard of care. A simple standard care for A/Es derived from the common law in the US is as follows:
The standard of care for services performed or furnished by a Design Professional under this Agreement will be the skill and care used by members of Design Professional’s profession practicing under similar circumstances at the same time and in the same locality.
Deleting the word “complete” or substituting it with another word:
The word “complete” can easily be deleted, and the sentence can still make sense, or as an alternative, substitute the word with “performance.”
- In connection with the scope of services, the design professional (A/E) shall promptly commence services as directed by Owner and diligently pursue performance of the services in accordance with the project schedule.
- The design professional (A/E) shall provide Owner with a complete set of drawings and specifications in accordance with the A/E’s standard of care.
It goes without saying, the standard of care for design professionals does not require perfection. And “complete” means there are no errors or omissions in a projects’ design.
Lastly, the concept of "betterment" allows for the inclusion of inadvertently omitted items as opposed to a "complete" performance. The concept of "betterment" allows for the inclusion of inadvertently omitted project components as opposed to a "complete" performance. For example:
If the design professional inadvertently does not include an item in the design of this project, the Owner should pay what the component would have cost if it had been included in the original project design, and the Owner shall make no claim against the design professional for the associated costs.
“Betterment” is a notion of fairness to both of the parties to an A/E – client contract. Otherwise, without the concept of “betterment,” the A/E’s clients would continue to keep their fingers crossed hoping that their design professional would inadvertently omit some of the project components, in order to save their project’s construction costs.
In sum, I asked A.I. if A/Es should agree to use the word “complete” for their services in their clients’ contracts.
To see if my opinions are on point on this topic, here is what Chatbot responded:
Architects generally should avoid agreeing to a simple "complete" in client contracts because it implies a perfect result, a guarantee they don't provide (they offer professional skill, not perfection), and can expose them to uninsurable risks, increasing liability; instead, they should use defined terms like "Substantial Completion" (AIA standard for "good enough to use") and clearly define milestones, scope, and their standard of care (reasonable skill) to manage client expectations and limit risk, ideally with legal and insurance counsel.
Why "Complete" is Risky:
- Implies Perfection/Guarantee: "Complete" can be interpreted as 100% flawless, but architects only guarantee a reasonable standard of care, not perfection, notes AIA and the International Bar Association (IBA).
- Exceeds Insurance: Agreeing to "complete" or "comply with all laws" can create obligations beyond the standard of care, voiding professional liability insurance, warns JCJ Insurance.
- Unclear Legal Standard: It lacks precise definition in contract law for design services, unlike the construction term "Substantial Completion".
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About the Author of this Risk Management Building Block Article
As a risk manager for the last 20 years for the design profession, Eric O. Pempus, FAIA, Esq., NCARB has experience in professional liability insurance and claims, architecture, engineering, land use, law, and a unique background in the construction industry. Prior to risk management, he has 25 years of experience in the practice of architecture/engineering, and as an adjunct professor teaching professional practice courses at the undergraduate and graduate levels for 37 years at Kent State University’s College of Architecture & Environmental Design.
As a Fellow of the American Institute of Architects and AIA National Ethics Council 2021 Chair, he has demonstrated his impact on architectural profession. He has presented numerous loss prevention and continuing educational programs to design professionals since 2000 on topics of ethics, contracts, and professional practice in various venues across the United States and Canada. He is a former member and chair of his city’s Board of Zoning & Building Appeals for 24 years, and is a licensed architect, attorney, and property & casualty insurance professional.
His educational background includes a JD from Southwestern University School of Law, Los Angeles; Master of Science in Architecture from University of Cincinnati; and BA in psychology/architecture from Miami University, Oxford, Ohio.
The above comments are based upon DesignPro Insurance Group’s experience with Risk Management Loss Prevention activities and should not be construed to represent a determination of legal issues but are offered for general guidance with respect to your own risk management and loss prevention. The above comments do not replace your need for you to rely on your counsel for advice and a legal review, since every project and circumstance differs from every other set of facts.
Disclaimer: The viewpoints expressed in this article are those of the author(s) and are not necessarily approved by, reflective of or edited by other individuals, groups, or institutions and this article is an expression by the author to generate discussion and interest in this topic.