The entire phrase - “The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work.” In the design professions, the phrase is abbreviated to “means and methods” as a shorthand, because most architects and engineers know what it refers to.
It comes from the American Institute of Architects’ Standard Form of Agreement Between Owner and Architect B101, which states:
§ 3.6.1.2 The Architect shall advise and consult with the Owner during the Construction Phase Services. The Architect shall have authority to act on behalf of the Owner only to the extent provided in this Agreement. The Architect shall not have control over, charge of, or responsibility for the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, nor shall the Architect be responsible for the Contractor’s failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect shall be responsible for the Architect’s negligent acts or omissions, but shall not have control over or charge of, and shall not be responsible for, acts or omissions of the Contractor or of any other persons or entities performing portions of the Work.
Likewise, the Engineers Joint Contract Documents Committee, Agreement Between Owner and Engineer for Professional Services E-500, states:
6.01 H. Engineer shall not at any time supervise, direct, control, or have authority over any Constructor’s work, nor shall Engineer have authority over or be responsible for the means, methods, techniques, sequences, or procedures of construction selected or used by any Constructor, or the safety precautions and programs incident thereto, for security or safety at the Site, nor for any failure of a Constructor to comply with Laws and Regulations applicable to that Constructor’s furnishing and performing of its work. Engineer shall not be responsible for the acts or omissions of any Constructor.
WHAT CONSTRUCTION CONTRACTORS DO
The short phrase "means and methods" are applicable to what construction contractors do, and not what design professionals (architects and engineers) do when they deliver their professional services. In construction contracts, "means, methods, techniques, sequences or procedures, or for safety precautions" refers to the specific ways a contractor will carry out the work (labor and materials), including how they will ensure safety on the construction site. These terms encompass the contractor's chosen approach to building, including the tools, processes, and safety measures they implement.
- Means and methods: how a project is built, referring to a contractor's plans and specifications for construction.
- Techniques, sequences, and procedures: detail the specific steps and order of operations a contractor must follow.
- Safety precautions: cover the measures taken to protect workers and others from hazards on the construction site, such as fall protection, proper equipment usage, and emergency response plans.
WHAT DESIGN PROFESSIONALS DO
Should a design professional do the opposite – have control over, charge of, or responsibility for the construction “means and methods,” then they would need another insurance policy apart from their professional liability insurance. That policy would be a Commercial General Liability policy for a design professional lead design/built project, which is what contractors obtain for their work. Otherwise, design professionals are only responsible for the design intent and the overall vision of the project.
In contrast to providing labor and materials, design professionals designate what and where materials are placed in a project. In addition, they also determine the quantity of the materials when they create their plans and specifications. In other words, design professionals determine what and where, and construction contractors put the pieces together in the right place with their “means and methods.”
PROFESSIONAL LIABILITY POLICIES
Design professionals obtain insurance to cover their errors and omissions, under the concept of negligence. Insurance companies make it clear that architects and engineers do not get involved with construction activities – “means and methods” (encompassing labor and materials), unless the design professionals become the lead in a design/build project.
One insurance company’s professional liability policy specifically excludes “means and methods” as follows:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
CONSTRUCTION MEANS AND SITE-SAFETY EXCLUSION
EXCLUSIONS, Section 4. is amended to include the following:
Construction Means and Site-Safety
This Policy does not apply to any Claim(s) based upon or arising out of directly or indirectly construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with any project.
Another insurance company’s professional liability policy specifically excludes “means and methods” as follows:
There shall be no coverage under this Policy based upon, arising out of or attributable to any actual or alleged deficiency in connection with construction means, methods, techniques or sequences or procedures.
And another insurance company’s professional liability policy excludes the following, that in essence is the same as “means and methods:”
Any construction, erection, fabrication, installation, assembly, manufacture, remediation services, or supplying of equipment or materials, that is the responsibility of the Insured [under this policy].
Yet another insurance company’s professional liability policy excludes the following that, in essence is the same as “means and methods:”
This policy does not apply to any Claim based upon or arising out of the cost to repair or replace faulty workmanship in any construction, erection, fabrication, installation, assembly, manufacture or remediation performed by the Insured, including the cost of materials, parts or equipment furnished in connection therewith.
TO SUM THIS UP
As an example of “means and methods,” a construction contractor might use a specific type of scaffolding to access a high area, and they would also have to demonstrate how they will protect workers from falls using guardrails and safety harnesses (safety precautions). However, design professionals should steer away from any involvement with construction “means and methods,” when they provide their design intent for their projects.
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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.