Guest Column

Be clear on design responsibility

July 3, 2015
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I want to build a building, and I want you to design it. 

That’s pretty straightforward, right? Well, maybe not so much. There are so many different ways to deliver a building project these days that it serves both parties well to be clear upfront about how design responsibility will be shared.

One of the primary challenges in properly drafting any agreement between an owner and an architect is properly defining the scope of work. This requires a careful allocation of responsibility for all design aspects of the project.

On small projects, an architect may only perform basic consulting services and perhaps modest design work. Many small residential projects may not require a professional seal of an architect if they are below a certain square footage. Other residential projects may have an interior decorator providing the only design work and do not include any architectural or structural design services.

As projects become bigger, one approach in today’s market is for the builder to take on significant design work. In a pure design-build contract, the design-builder actually performs all of the design services, typically by hiring out all of the required design services.

A more traditional role for the architect would be where the owner engages an architect to design and draw up a project. The architect then works with the owner to bid and engage a contractor to complete construction of the project. In such scenarios, the architect provides the great majority, if not all, of the design services.

Another common role for an architect on a project would be where the owner has simultaneously engaged an architect and a construction manager who is acting as the constructor, as well. Even in such scenarios, the architect and construction manager may share some design responsibilities. An example would be where design-build mechanical and electrical services are the responsibility of the construction manager, not the architect. 

But whichever route you go, it is important the applicable agreements accurately and consistently allocate design responsibility among the parties. Failing to do so could lead to headaches and finger-pointing down the road.

Mitigating risks

The risks associated with not properly allocating responsibility for the design aspects of a project are many.

First, there is the financial impact of a design issue not being properly addressed. Failure to properly address design responsibilities may also adversely impact the relationships of the parties involved.

It can also have a negative impact on the quality of the project or the schedule of the completion of the project. Such a failure may also adversely affect the reputation of the parties involved.

Exacerbating these risks is the fact that the professionals involved are trying to sell their services to the owner and do not wish to “rock the boat” during contract negotiations. Such parties may be willing to live with ambiguous arrangements to “get the work” or please the client upfront.

On occasion, you may also run across the sentiment that “all projects are easy” and there is not much sophistication to the process — but nothing could be further from the truth. The experience we have of more than 60 combined years in the industry would recommend caution to parties that are overly confident regarding the simplicity of any design and construction project.

Finally, time is the enemy of many contract negotiations. Because of tight time restraints, contracts may be poorly drafted.

At the end of the day, owners, architects and builders have a common bond in investing the time upfront to confirm there is no confusion among the parties and the project is properly served. All three would be wise to pay particular attention to the allocation of design services and roles on the front end of their projects to avoid the pain of not properly having addressed these after the fact.

James J. Rabaut is a partner at Warner Norcross & Judd LLP who concentrates his practice in real estate and construction law. Peter Baldwin is president and principal of AMDG Architects, an architectural design firm in Grand Rapids. The two have partnered on many projects including the Project Contractual Work Chart, a matrix under which various aspects of a project may be allocated among the parties. Working with this checklist can help confirm that all aspects of the design have been properly addressed and there is no confusion as to who is responsible for what aspect.

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