Recently, there have been disputes and judicial decisions addressing the responsibility of architecture firms to understand the composition, performance, and availability of specified products, materials, and systems. In most cases, absent an affirmative statement by the architecture firm that it will determine the attributes of components specified for a design, courts have not unreasonably extended the exposure of firms.
Few architects have the ability to independently test and analyze substances, to verify the performance of a manufactured product, or to predict the longevity of a specified component of a project. And fewer clients are willing to pay the additional costs and experience the delays in design that such second-guessing of manufacturer’s data through an independent analysis would generate. The ability of an architect to rely on information provided by product suppliers or their marketing representatives is judged by the standard of care: at the time of specification, would a reasonable architect have relied on the information provided by a manufacturer as to the performance, content, and reliability of a material, product, or system?
Clients Might Expect Architecture Firms to be Responsible
Some firms are apprehensive about the possibility that a client will attempt a cost recovery effort by alleging that the firm had a greater duty than simply relying on promotional information for a product, material, or system. In some egregious third-party claim situations, architects are concerned that the judicial system might place unreasonable, unrealistic, and unanticipated responsibilities on them based on the duties established by licensure laws to protect public health and safety.
There are ways to head off some of the possible claims and make the responsibility of the architect rational. One, of course, is a high level of communication with the client so that the client understands the possible risks and rewards of the use of an inadequately tested project component or one that has no substantive reputation in the industry. The informed consent of the client can be used to show that the architect made a recommendation based on information available at the time of the recommendation and that the client approved the recommendation after weighing the risks and benefits and considering alternatives.
Contract Language Can Clarify the Architect’s Duty
The standard owner-architect agreement published by the AIA provides some protection for the architecture firm from claims by the client or others for negligence in design, negligent misrepresentation to the client, or deceptive practices in the specification of products, materials, or systems. There is no provision that states that the architect can rely on manufacturer information; the reliance is based on the standard of care and not a contractual limit of responsibility.
AIA B101-2007 states the following in § 3.1.2:
The Architect shall coordinate its services with those services provided by the Owner and the Owner’s consultants. The Architect shall be entitled to rely on the accuracy and completeness of services and information furnished by the Owner and the Owner’s consultants. The Architect shall provide prompt written notice to the Owner if the Architect becomes aware of any error, omission or inconsistency in such services or information.
The provision protects against claims by the client because it states the reasonable use of information from the client or others providing services to the client, but it is silent as to reliance on product data and manufacturer representations.
A Reliance Provision Can Mitigate Exposure
The standard provision used in the Engineers Joint Contract Documents Committee’s (EJCDC) E-500-2014 goes further than the AIA language in reducing the probability of claims. The EJCDC contract includes a provision that affirms the ability of the consulting engineer to rely on client and manufacturer representations as long as the consulting engineer meets the standard of care for applying professional judgment to the information.
The EJCDC contract language puts the client on notice of the engineer’s reliance on information provided by others. The standard agreement between owners and engineers for professional services states the following “Standard of Performance” provision:
Reliance on Others: Subject to the standard of care set forth in Paragraph 6.01.A, Engineer and its Consultants may use or rely upon design elements and information ordinarily or customarily furnished by others, including, but not limited to, specialty contractors, manufacturers, suppliers, and the publishers of technical standards.
This is in addition to the contractual agreement that allows the engineer to rely on client-provided information. A similar provision in an architect’s contract with a client could assist in mitigating the exposure of the architect.
Some Architects Might Want to Provide Expanded Services
If a firm senses that a client wants a higher level of involvement by the firm in assessing the performance, durability, or content of a project component, a discussion should take place during contract negotiation. Such a discussion should include the role of the client in evaluating available information and determining the risk the client will take in approving a new product or a new use for an existing product.
As third-party certification requirements begin to reward clients for being sensitive to the content of materials incorporated into projects, some clients may be turning to architects to document, analyze, or even verify the content of materials and their possible effects on health and safety. This, of course, is not within the skill set of most architecture firms. The AIA has an initiative to look at developments related to this “materials transparency” issue and can provide more information on what might be included in a scope of services; on the business and professional liability exposures of providing such non-traditional services directly or through appropriate subconsultants; and, through the AIA Contract Documents Program, on language that might be helpful to firms in clarifying client expectations and mitigating the risk of claims.
Projects continue to increase in complexity. Clients and government entities are demanding increased awareness of the long-term energy costs and health impacts of the products, materials, and systems incorporated into building and infrastructure projects. It is important that architects—at the time of contract negotiation and during routine communication with clients—state the limits of their ability to provide independent analyses of recommended project components and reaffirm their reasonable reliance on the information provided by manufacturers and suppliers.
Victor O. Schinnerer & Company, Inc. and CNA work with the AIA Trust to offer AIA members quality risk management coverage through the AIA Trust Professional Liability Insurance Program and Business Owners Program to address the challenges that architects face today and in the future. Detailed information about both these programs may be found on the AIA Trust website.