Blurring the Line

First thing we do, let’s blame the owner, then the lawyers
To begin their article titled Drawing the Line, James B. Atkins, FAIA, and Grant A. Simpson, FAIA, declare that “architect’s documents cannot be used for construction.” The article then cites sources including the AIA standard forms of agreement, Webster’s dictionary, and The Architect’s Handbook of Professional Practice to support their claim that the construction documents are “issued to facilitate construction by expressing the design concept.” As a result, it is their firmly-held view that it is the responsibility of the contractor to coordinate and implement the plans with shop drawings, submittals, coordination drawings, and alternate sketches.

The design and construction of a real estate project is an admittedly complex process, and the participants assume enormous economic risks. Mr. Atkins and Mr. Simpson present a compelling argument and illustrate clear examples of the continual tension between architect and contractor in designing, interpreting drawings, and constructing a project.

Although the AIA standard forms of agreement are password protected, it is careless to view the documents as set in stone or to cite them as binding precedent. The authors present a view that merits a spirited dialogue, but their view is ultimately unsupported by law. As detailed below, it is only after the parties have negotiated and ratified an acceptable agreement that they can then understand their complementary rights, obligations, and risks.

Standard forms of agreement, as negotiated and ratified
To start this dialogue about architectural drawings, it must be understood that there are no constitutional articles, and no federal, state, or local laws that grant special status to architectural drawings. Of course, there are many statutes governing the conduct and rights of both architects and contractors. These laws include federal copyright protection, OSHA safety requirements, state architect licenses, consumer protection laws, and local building and zoning codes.

In addition to statutes, there is a large body of federal and state case law reaching back to our colonial period that addresses issues of dispute among owners, architects, engineers, consultants, general contractors, and subcontractors. These cases have been annotated, discussed, and criticized at length in treatises and commentary.

In response to the body of case law, statutes, common business practice, and ideology, the AIA, AGC, and other industry associations have crafted model forms of agreement. In a methodical and detailed manner, these model forms allocate rights, responsibilities, and risks among the parties. The forms are well-crafted and anticipate a litany of situations in design and construction.

Nevertheless, these model forms must be negotiated and ratified among the owner, architect, and contractor. Individual owners, architects, and contractors routinely modify and amend the forms in their own interest. The documents are typically subject to intense negotiation and significant amendment and revisions before execution.

In his book titled You Can Negotiate Anything, Herb Cohen notes that anything that is the result of a negotiation is negotiable. Absent common law protections from economic duress or fraud, the parties to a contract have the ability to craft language and to engage in an exchange of promises to design and construct a building.

In the case of private real estate design and construction, it is generally the real estate owner (or the owner’s lender) who holds the economic might and is able to dictate or influence many of the contract terms. Like most negotiations, the final agreement governing the business terms is the result of economic power, experience, creativity, and interpretation of the law.

The meaning of the words
The short answer, then, to the authors’ view is that the legal agreements, as fully-executed by the parties, control the status of the architectural drawings. To cite sections from the AIA standard forms, the AIA Handbook, or a dictionary as an edict barely merits pause in a court of law and is not persuasive. Lawyers are often ridiculed for their use and overuse of words, but words form the agreements among the parties and dictate the rights of the parties.

Like a court of law, we must look to the words of the agreed-upon contract and the practicalities of construction. Instead of a review of the standard form of AIA agreement, Mr. Atkins and Mr. Simpson should point the reader to review, in detail, the actual contract executed by the owner and architect and by the owner and contractor.

Except in the situation where the design and construction agreements clearly permit such a designation, it is pointless to decree that architectural drawings are “conceptual only.” It may be a worthy goal of an architect in a negotiation with an owner. Marking a set of drawings as “conceptual only” by the architect, in clear conflict with the executed contracts, does not protect the architect and does not create special obligations upon the contractor.

In practice
The authors use the example of Gyo Obata, a noted architect who decided to produce construction drawings for a project in freehand. While his approach may have been innovative, it may also have failed to comply with the terms of the contract between the owner and the architectural firm. At the same time, as provided in a separate agreement, the contractor involved in that project may not have been required to accept the freehand drawings for construction purposes.

For many projects, an owner will insert contract language to require the contractor to “reasonably infer” the meaning of the construction documents and be responsible for work not specifically included in the drawings. In agreement with the authors point of view, the contractor is effectively required to finish the drawings. This contract provision often creates a tense negotiation between owner and contractor, but is ultimately decided between the parties.

The authors present a list of reasons to put the drawings upon the contractor. There are practical and financial considerations in favor of such a view and opposed to such a view. Contractors would argue that the architects and engineers who produce the drawings have the education, experience, and credentials to prepare a comprehensive set of design documents. Many contractors would simply refuse to participate in a project where they would be responsible for taking a conceptual design and delivering a finished building. The remaining contractors who would agree to participate in the process would most likely be unable to provide an accurate budget or bid to the owner or would have to include a contingency fund to account for finishing the design.

Summary
We can all agree that designing and constructing a building is a complicated process. Architectural firms and contractors often compete to be awarded a project based on thin fees and profits and seek to limit their legal exposure. Based on case law, statutory law, and tradition, however, it is reckless to consider that the architects documents are conceptual only and cannot be relied-upon for construction. The industry is subject to a variety of legal agreements, all of which must be negotiated and ratified. There are certainly architects who can negotiate a favorable agreement with the owner. In such a case the owner must then negotiate with the contractor to assume responsibility to complete the drawings.

Steven G. Shapiro
Bethesda, Md.

Drawing the Line as Required Reading

I think that “Drawing the Line” is an excellent article. It should be required reading for all architects. Too often even experienced architects believe the colloquial explanation that “blue prints are instructions to the contractor on how to build the building”. Your well researched, lucid explanation of the contractor’s role in construction needs to be re-emphasized in the next edition of A201, maybe going as far as referencing the AGC/ASA publication.

James C. Jankowski FAIA
Oak Park, IL

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