November 2024
There are times where there are misunderstandings between a design professional and their client on a project. Professional association model agreements strive to dispel any ambiguous scope of services in these agreements, but it is easier said than done. This risk management article discusses how this may occur and how to determine solutions to this problem between an architect/engineer (A/E) and their client.
ADDRESSING THE ISSUE
The problem may raise its ugly head if the design professional not only states what is basic and optional additional services, but also creates a list of services that are “excluded” in the agreement. Herein is the dilemma.
If the design professional creates an “excluded” list of items, what may occur is something that is understood to be outside of a basic or additional services is omitted from the list, and it would be presumed to be as included. And this creates disputes between the parties to the agreement or a claim involving professional fees, especially when the client is inexperienced with procuring design consulting services. Expectations can easily be misaligned.
To solve this problem, the American Institute of Architect (AIA) model agreement B101 does not create a specific list of excluded services. Rather, an architect’s client has a “Owner’s Responsibilities” section that takes responsibility for certain services that otherwise could be on an excluded list. For example,
§ 5.4 The Owner shall furnish surveys to describe physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; designated wetlands; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions, and other necessary data with respect to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All the information on the survey shall be referenced to a Project benchmark.
§ 5.5 The Owner shall furnish services of geotechnical engineers, which may include test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations.
Whether an American Institute of Architect (AIA) or an Engineers Joint Contract Documents Committee (EJCDC) model agreement, they both delineate services as either “basic” or “additional” services. The AIA approach has gone one step further and has divided non-basic services into “supplemental” and “additional” services.
SUPPLEMENTAL
AIA B101 Model Agreement Between Architect & Owner
§ 4.1.1 The services listed below are not included in Basic Services but may be required for the Project. The Architect shall provide the listed Supplemental Services only if specifically designated in the table below as the Architect’s responsibility, and the Owner shall compensate the Architect as provided in Section 11.2. Unless otherwise specifically addressed in this Agreement, if neither the Owner nor the Architect is designated, the parties agree that the listed Supplemental Service is not being provided for the Project.
(Designate the Architect’s Supplemental Services and the Owner’s Supplemental Services required for the Project by indicating whether the Architect or Owner shall be responsible for providing the identified Supplemental Service. Insert a description of the Supplemental Services in Section 4.1.2 below or attach the description of services as an exhibit to this Agreement.)
| Supplemental Services | Responsibility (Architect, Owner, or not provided) |
| § 4.1.1.1 Programming | |
| § 4.1.1.2 Multiple preliminary designs | |
| § 4.1.1.3 Measured drawings | |
| § 4.1.1.4 Existing facilities surveys | |
| § 4.1.1.5 Site evaluation and planning | |
| § 4.1.1.6 Building Information Model management responsibilities | |
| § 4.1.1.7 Development of Building Information Models for post construction use | |
| § 4.1.1.8 Civil engineering | |
| § 4.1.1.9 Landscape design | |
| § 4.1.1.10 Architectural interior design | |
| § 4.1.1.11 Value analysis | |
| § 4.1.1.12 Detailed cost estimating beyond that required in Section 6.3 | |
| § 4.1.1.13 On-site project representation | |
| § 4.1.1.14 Conformed documents for construction | |
| § 4.1.1.15 As-designed record drawings | |
| § 4.1.1.16 As-constructed record drawings | |
| § 4.1.1.17 Post-occupancy evaluation | |
| § 4.1.1.18 Facility support services | |
| § 4.1.1.19 Tenant-related services | |
| § 4.1.1.20 Architect’s coordination of the Owner’s consultants | |
| § 4.1.1.21 Telecommunications/data design | |
| § 4.1.1.22 Security evaluation and planning | |
| § 4.1.1.23 Commissioning | |
| § 4.1.1.24 Sustainable Project Services pursuant to Section 4.1.3 | |
| § 4.1.1.25 Fast-track design services | |
| § 4.1.1.26 Multiple bid packages | |
| § 4.1.1.27 Historic preservation | |
| § 4.1.1.28 Furniture, furnishings, and equipment design | |
| § 4.1.1.29 Other services provided by specialty Consultants | |
| § 4.1.1.30 Other Supplemental Services |
ADDITIONAL
§ 4.2 Architect’s Additional Services
The Architect may provide Additional Services after execution of this Agreement without invalidating the Agreement. Except for services required due to the fault of the Architect, any Additional Services provided in accordance with this Section 4.2 shall entitle the Architect to compensation pursuant to Section 11.3 and an appropriate adjustment in the Architect’s schedule.
§ 4.2.1 Upon recognizing the need to perform the following Additional Services, the Architect shall notify the Owner with reasonable promptness and explain the facts and circumstances giving rise to the need. The Architect shall not proceed to provide the following Additional Services until the Architect receives the Owner’s written authorization:
.1 Services necessitated by a change in the Initial Information, previous instructions or approvals given by the Owner, or a material change in the Project including size, quality, complexity, the Owner’s schedule or budget for Cost of the Work, or procurement or delivery method;
.2 Services necessitated by the enactment or revision of codes, laws, or regulations, including changing or editing previously prepared Instruments of Service;
.3 Changing or editing previously prepared Instruments of Service necessitated by official interpretations of applicable codes, laws or regulations that are either (a) contrary to specific interpretations by the applicable authorities having jurisdiction made prior to the issuance of the building permit, or (b) contrary to requirements of the Instruments of Service when those Instruments of Service were prepared in accordance with the applicable standard of care;
.4 Services necessitated by decisions of the Owner not rendered in a timely manner or any other failure of performance on the part of the Owner or the Owner’s consultants or contractors;
.5 Preparing digital models or other design documentation for transmission to the Owner’s consultants and contractors, or to other Owner-authorized recipients;
.6 Preparation of design and documentation for alternate bid or proposal requests proposed by the Owner;
.7 Preparation for, and attendance at, a public presentation, meeting or hearing;
.8 Preparation for, and attendance at, a dispute resolution proceeding or legal proceeding, except where the Architect is party thereto;
.9 Evaluation of the qualifications of entities providing bids or proposals;
.10 Consultation concerning replacement of Work resulting from fire or other cause during construction; or,
.11 Assistance to the Initial Decision Maker, if other than the Architect.
IN CONCLUSION
If the client/design professional agrees to language that states the A/E will provide “complete” or “necessary” services, another opportunity may arise for misaligned expectations. Such words are called “Extreme Words” and are best eliminated from professional service agreements. See the DesignPro Insurance Group’s risk management article titled “Extreme Words – Bad for Architects & Engineers,” November 2021 at designproins.com/blog/2021/11/Extreme-Words–Bad-for-Architects-Engineers.
As a risk manager for the last 18 years for the design profession, Eric 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 the last 35 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. This article is an expression by the author(s) to generate discussion and interest in this topic.