New & Innovative Products,
Materials & Applications
By their very nature, design professionals are among the most creative and innovative members of society. As a result, they are often instinctively drawn to new technology, products and methods, much as a moth is drawn to the flame. Other times, they are led to new technology and products by either client demands or the need to appear to be “cutting edge”, in order to secure that client’s business. In doing so, design professionals often agree to incorporate an “unproven” product, application, or method which, virtually by definition, is not a standard practice and is therefore not consistent with the “standard of care”. Despite any disclaimers or protests by the design professional and however unrealistic its expectations, most owners will look to the design professional first, last, and always if their expectations and hopes are not fully realized.
To make matters worse, design professionals seldom receive any compensation, much less fair compensation, for this “opportunity” to be either the owner’s unacknowledged hero or demonized culprit. As with many situations in any design professional’s experience, the financial upside remains almost solely with the owner, while the design professional toils for its hourly fee or bare bones, lump sum fee. The disparity of risks and rewards with respect to innovative products and processes is even further exacerbated because the prospective risk of failure, or even simple client dissatisfaction, is greatly enhanced.
Does this mean that design professionals should not use new products or apply existing products in new ways? Absolutely not. That is unrealistic. Client demands, progress, and even the standard of care dictate otherwise. Design practice and the construction industry always have and always must move forward by accepting and embracing new products and opportunities. However, that does not mean design professionals can approach such situations as “business as usual” without appropriate procedures and protections. Where the product or application is neither “ordinary” nor “similar”, the standard of care must become more about expectations, communications, and diligent process than it is in terms of technical outcomes. Such is the performance expectation for the “ordinary, but reputable” design professional. By definition, the use of innovative and “unproven” products involves equal parts of investigation, reliance, hope and risk.
The following sub-sections set forth a strategy for design services implementing new products and product applications. This strategy is intended to maintain a fair balance of risks and rewards, while simultaneously protecting the design professional’s professional practices and economic survival. This strategy is drawn from numerous experiences in projects gone awry in conjunction with many successful contract negotiations which have prepared for the appropriate implementation of innovative technologies.
One of the most frequent sources of failed client relationships and litigation is unrealistic, inappropriate, or uncommunicated client expectations. The threat of such expectations is significantly increased where a new and/or innovative product or application is considered for the project. Most owners (at least in retrospect) seem to focus solely on the potential for an enhanced outcome without any recognition of the potential for failure or shortcomings. Even when they recognize the risks, they usually regard those risks as belonging to the design professional. They generally will claim to be unsophisticated and relegated to an almost blind reliance on the design professional. Although this is an all too common experience, it is not fair or consistent with the design professional’s common intentions.
The only way to control this risk is to educate and shape client expectations. Whenever using a new or innovative product or technology, or using an existing product or technology in a new or innovative way, the design professional should and must devote a significant effort to the education of the client. Unfortunately, there is no bright-line rule to distinguish when this discussion is required. However, these concerns are not limited to products and technologies being used for the first time. In reality, these considerations should come into play any time a design professional cannot characterize some component of the design as “standard practice”.
Of course, the process of educating and shaping client expectations will vary by project, client, and application. However, some elements will consistently apply, or at least be worthy of consideration:
- Affirmative acknowledgement that the product or application is not the standard or traditional approach. In doing so, state that this means it has not been tested or proven.
- Express identification of the objectives of the product or application, and why they are being proposed over traditional products or applications.
- Express acknowledgement that there is the possibility that the product or application will not achieve the objectives.
- Seeking the client’s affirmation that, given all of these considerations and the related risks, it elects to proceed as proposed. In many ways, this is the construction equivalent of “informed consent” in the medical community.
To any extent possible, each of the foregoing steps should be documented. Ideally, this documentation will take the form of correspondence or Meeting Minutes conveyed to the client. The issue can also be addressed by generic or very specific contract provisions, as set forth below.
Scope of Investigation/Analysis
The single and most critical strategic decision with respect to a new product, technology, or application is to determine what level of investigation into and analysis of the product or application the design professional will undertake. The strategic considerations and limitations are probably most acute with respect to the use of new products or patented processes. This is because the scope of investigation or analysis may run the gamut from rote incorporation of the product or process following the manufacturer’s directions to a virtual re-design validating or even enhancing the product or process. As a result of this spectrum, the strategic options may be best assessed on a progressive basis.
At one end of the spectrum is the option of incorporating the product or process
by simply adhering to the manufacturer’s instructions and guidelines without
anything more. The
more innovative the product or process, the more appropriate this approach. Recent examples of such products and processes include advances in water treatment technology and reinforcement methods for structural concrete. If this is the chosen approach to the use of the product or process, it is best to be absolutely clear with the client that this is the method of evaluation and to confirm that approach in writing either by correspondence, memo, or in the actual contract. When using this approach, the design professional should refer the contractor to the actual manufacturer’s instructions and guidelines as much as possible, rather than trying to selectively reinterpret the instructions and guidelines.
The next step in the progression of investigation would be to conduct a review of the development of the product or process, its testing, and any applications to date. Most experts agree that this approach best approximates the “standard of care” for the use of new products. It occupies an appropriate middle ground wherein the design professional does not seek to “re-engineer” the innovation, but does attempt to verify that the innovation was the result of a reasoned process and has not already been exposed as being prone to failure or disappointment. The simplest steps towards accomplishing these ends is to contact and interview the manufacturer, contact references for past applications, and review the available literature (e.g., journals and the internet). If this is the selected approach, both the approach and the results of the investigation should be shared with the client.
Before proceeding beyond the foregoing and actually conducting any original analysis or modifications, any design professional should carefully consider the practicalities of doing so. The more an independent analysis is performed by the design professional, the greater the design professional’s potential responsibility for the ultimate performance (and/or failure) of the product or process. Moreover, the design professional’s capacity to conduct a useful analysis is often limited. Most often, the creators of innovative products or processes will defend much of the relevant information as proprietary. Therefore, any analysis is necessarily based on partial information. In addition, it is not realistic to think that any analysis of such a product could be as thorough as that performed by the creator or manufacturer. Finally, to the extent the analysis leads to any variation in the application, such a variation may unintentionally void any applicable warrantees or other responsibilities of the manufacturer and thereby make the design professional solely responsible.
Before proceeding with the project and the application of the new product or process, the design professional should consider the range of options for investigation and analysis, and make the strategic decision which is best for both the design professional and the project. That decision should then be shared with the client and confirmed in writing. Since this is truly a strategic decision driven by pragmatic realities of design options, the client should generally not have access to all options.
All of the foregoing is typically preparatory to execution of the client contract. As with any discussions and decisions which precede the actual contract, they are meaningless if not incorporated into the contract itself. Although they will vary by project and application, the key provisions for incorporation into the project are as follows:
- Confirmation that new or innovative products, technologies, or methods may be used on the project.
- Acknowledgement that, as such, the new or innovative products, technologies, or methods lack a proven history of successful application.
- Acknowledgement that, as such, the new or innovative products, technologies, or methods are being incorporated into the project in order to accomplish recognized objectives, but that due to their innovative nature, there is a significant possibility that they will not realize those objectives or have collateral consequences.
- Verification of the level of investigation and analysis, and a statement that this is the limitation of the design professional’s obligation for the performance.
- Confirmation that the client has or will weigh the relative risks and rewards, and will accept the risks in order to incorporate the innovation into the project.
Such a provision may be either an all-inclusive provision incorporated into all Agreements, or a specially-modified provision applicable only to a specific project and application. Such a “standard” provision may provide:
New or innovative products, technologies, or methods maybe used on the Project. Client acknowledges that new or innovative products, technologies, or methods lack a proven history of successful application. Nevertheless, the new or innovative products, technologies, or methods being incorporated into the Project pursue other recognized objectives. Due to the innovative nature, there is a significant possibility that they will not realize those objectives or have collateral consequences. Consultant has and may rely on manufacturer’s representations and directions without any further obligation. Client has or will weigh the relative risks and rewards, and will accept the risks in order to incorporate the innovation into the Project.
The use of new products and processes will not always be apparent prior to contract execution, and will sometimes come into consideration as the project evolves. In these situations, the best approach is to execute a contract addendum reflecting the change in the project and incorporating the equivalent of the provisions set forth above. Often, this is the best of all possible options because it truly focuses attention and direct communication on the use of unproven products and processes. Where such an addendum is not possible, the move toward a new product or process should be verified in writing with an appropriate explanation that it is a new product, that its results cannot be guaranteed, the level of investigation, and the client’s acceptance of the possible risks as a part of the project. This is an example of the informed consent referenced above.
Once the foregoing preparations are complete, the final step is to deliver a project consistent with the strategic approach selected by the design professional. In doing so, the design professional should seek out and exploit every opportunity to reinforce the strategic approach. Two of the most effective means of doing so are (1) frequent references to and incorporation of the manufacturer’s instructions and guidelines in the design documents; and (2) validation of the design approach by the manufacturer itself. Many proponents of innovative products and processes are more than willing to become involved in the process and validate the application. Such a validation (ideally verified in writing) is often the single best risk management practice available to a design professional in using a new product or process.
Finally, even though the “official” project scope should be limited, a design professional using a new or innovative product or process should consider undertaking a thorough investigation, but solely for its internal purposes. For example, even if not required by its scope, the design professional should investigate the development and history of a new product before incorporating it into a project. However, where not required by the written scope, this “enhanced” investigation should be maintained as internal and not shared with others (and, particularly, the client). If shared with a client, it may create an enhanced duty through reliance.