Throughout the course of a project, from preliminary studies through occupancy, there is perhaps no phase more stressful or misunderstood than the construction phase. Positive relationships that develop between the Owner and Design Professional during the design phase can be put to the test during the construction phase if the Owner’s expectations of the architect or engineer are not being met. Further complicating the process is the Contractor’s expectations of the responsibilities of both the Owner and the Design Professional.
Why does this occur? How can this be avoided? In this article we will tackle the sometimes-thorny issue of the role of the Design Professional during construction.
The best place to begin is to look at the contract. The role of the Design Professional must be clearly defined before construction commences. In fact, construction phase services are typically agreed upon in the initial contract. There certainly is an important role for the Design Professional during the construction phase of the project. As spelled out in the AIA Document B141-1997, a common agreement between the Owner and the Architect, construction services typically include the following:
Site visits at agreed upon intervals to evaluate the work
Reports of deviations from the contract documents
Communication between the Owner and the Contractor regarding matters related to contract documents
Rejection of work not conforming to the contract documents
Certification of payments to the Contractor
Review and approval (or appropriate action) of Contractor’s submittals such as shop drawings, product data and samples
Preparation of change orders and construction change directives
Review of changes in work including contract sum or contract time and recommendations to Owner
Inspections to determine the date/dates of substantial completion and final completion
These are some of the main services listed in the B141-1997. However, these services are only to be performed if they are contractually agreed upon. Further, the contract leaves provisions for the maximum number of shop drawing reviews, site visits, inspections, etc.
These are services that Owners and Contractors have come to expect from the Design Professional. These are also the services that are frequently reduced or deleted from a Design Professional’s contract to "reduce costs." Then, during construction, the Owner or Contractor relies on the designer (increased shop drawing reviews, increased Requests for Interpretation (RFI), requested attendance at more job conferences), resulting in construction services above and beyond those outlined in the contract. The Design Professional is left with a difficult choice: perform the additional services without receiving revenue to offset the increased costs or stick to the contractual services at risk of damaging the relationship with the Owner.
Even when the Design Professional holds normal construction phase services, the designer is not responsible to perform services that fall under a Contractor’s contract. For instance, review of shop drawings, product data, and samples is only for the limited purpose of checking for conformance with information given and the design concept expressed in the contract documents. It is not to determine the accuracy and completeness of other details like dimensions and quantities or to substantiate instructions for installation or performance of equipment or systems. These are the responsibility of the Contractor.
Requests for Interpretation from the Contractor to the Design Professional are only appropriate when information is either missing from the contract documents or ambiguous. If the information is readily available from a review of the contract documents, then it is not the responsibility of the Design Professional, and is viewed as an attempt to shift the Contractor’s contractual duties to the Design Professional.
Another sometimes contentious issue is that of construction observation. Again, we refer to the AIA Document B141-1997, which states that site visits (at intervals appropriate to the stage and agreed upon by the Owner and the Architect) are "(1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents." The contract wording goes on to state that the Architect is not required "to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work," and has no control over or charge of the constructions means, methods, techniques, sequences, procedures, or safety programs. Normal construction observation services are in the best interest of the project; limited construction observation services are problematic in that they may or may not be requested, and frequently when they are requested it is because a major problem has already developed. If the Design Professional provides regular construction observation services, there is a greater chance that potential problems can be avoided.
When the Design Professional has no construction observation services, the likelihood of problems developing is much greater. Only the Design Professional understands the design intent and assumptions made in preparing the plans. "No matter how detailed or near perfect your plans are, even the best contractor can’t build from them without some degree of interpretation," according to DPIC’s Contract Guide.
Many of the problems that occur during the construction process can be avoided by properly defined contracts up front. The Design Professional cannot and should not assume the Contractor’s contractual responsibilities. However, the Owner should put in place a contract that allows the Design Professional not only to protect the Owner’s interest, but also to be able to readily respond to legitimate questions and RFIs from the Contractor. Obviously, questions will arise and interpretations will be required during the construction phase. When the Design Professional, Contractor, and Owner define and agree upon their responsibilities up front, the process will go much smoother.