|Absolute or Absolution?
Observations, inspections, and the contractor’s warranty
by Grant A. Simpson, FAIA, and James B. Atkins, FAIA
Building construction requires many workers and many trades. The contractors and subcontractors must coordinate and interface their work and plan how all the separate parts and pieces will fit together. A contractor coordinates the subcontractors and develops a work plan for delivering a completed project that conforms to the architect’s design.
Because the contractor is solely responsible for conformance of work with the contract documents, it must continuously inspect the work as it goes in place to determine that subsequent work can be placed over it, documenting minor variations for the owner’s information.
The architect observes the work at certain times during the construction phase, but on a much less frequent basis and for different purposes than the contractor. Architects are charged only with being generally familiar with the work and reporting the general progress and quality of the work, as completed, to the owner. The standard of care is that the architect should be responsible for discovering and reporting nonconforming work that is available to be seen, yet the profession has been affected by a trend that indicates an attitude of a much higher standard among owners and contractors. Many such claimants have asserted that the architect has a responsibility similar to that of the contractor and should discover any and all defects. These expectations can become so distorted that owners and contractors in some instances essentially have asserted that the architect should be a warrantor of all work placed by the contractor. This has increased the risks associated with the architect’s construction phase services, particularly the requirements for observing and inspecting the work.
Courts have ruled that architects failed to detect the contractor’s defective work, holding that they have a duty to endeavor to guard the owner against all non-conforming work on the project, although much of that work is installed when the architect is not present.
This article will explore the issue of work conformance and the responsibility for finding and preventing defective work. It will examine who is contractually and physically responsible for work conformance, as well as the continuing attempts by plaintiffs’ lawyers to hold the architect accountable for this obligation.
The contractor’s obligation
This requirement is straightforward and absolute. There are no qualifications or overriding conditions that can alter or relieve this obligation. In fact, A201 states:
In addition, A201 requires continuous inspection of work already in place, by the contractor:
The bottom line is that the contractor controls the work, the contractor is required to inspect the work for conformance, and the contractor contractually warrants the work to be free from defects. This responsibility is absolute, and it is not superseded by the architect’s observations, inspections, or approvals.
The architect’s standard of reasonable
The architect should be responsible for discovering and reporting defective work of which it becomes aware. However, expectations in the industry have risen above this level of duty, and today court pleadings are filled with allegations of absolute responsibility on the part of the architect.
Defacto approval of defective work?
A201 clearly states that the architect’s certification of a payment application does not represent approval of the work.
This avenue of making claims overlooks several other important aspects of the provisions of the AIA documents, all of which are intended to prohibit the architect from accepting non-conforming work rather than place a finite obligation on the architect to detect non-conforming work.
A201 addresses defective work placed by the Contractor:
Here, the contractor provides an expressed warranty to both the owner and the architect that there will be no defective work on the project. Unfortunately, the contractor’s warranty to the architect, should the architect experience a loss caused by the contractor’s defective or nonconforming work, may be of little value if the contractor is bankrupt or no longer in business. Moreover, the architect not only does not provide such a warranty concerning the quality of the work, the architect has no responsibility for the contractor’s performance as indicated in A201.
So how is it that many have come to believe that the architect’s obligation to discover defects on a project is similar to, or even greater than the contractor’s guarantee that there will be none? Perhaps some derive this erroneous notion from the architect’s authority to reject non-conforming work of which the architect becomes aware as stated above in A201, and in AIA Document B141-1997 Part 2, Standard Form of Architect’s Services: Design and Contract Administration (B141):
There is absolutely no obligation conferred in this paragraph to detect nonconforming work, only authority to reject it if discovered.
Claiming in style
Catch me if you can: The plaintiff’s lawyers claimed as follows, admitting that the contractor did the work badly, but only because the architect did not catch them:
In addition, this one also reflects a belief in the awesome power of the architect to “allow” the contractor to perform badly:
The director: Plaintiff’s lawyers also are fond of claiming that the architect should have been directing the work, as in this example:
This claim was filed, although A201 clearly states in section 3.3 that directing and coordinating the work of the subcontractors—and construction sequences—are the contractor’s responsibility.
You bought the farm: Another favorite avenue of plaintiff’s lawyers for making claims against architects involves certifications for payment by the architect:
Adult supervision: The assertion that the architect has a stronger duty than the contractor to supervise the work is evidenced by the following claim. This disingenuous allegation is so prevalent in lawsuits against architects these days that it could be viewed as generic:
At the time that contractor’s defective work was performed Architect was supervising the work at the site. Additionally, the work was performed while Architect was in charge of the work. This evidence creates a genuine issue as to whether Architect violated its contractual duty to “guard the Owner against defects and deficiencies in the Work.”
Most expertly, if you please
Once again, the claim acknowledges that the primary issue is poor workmanship and nonconforming work, but asserts that the architect should pay for the cost of remedying the problems because the architect did not catch the contractor’s poor performance.
None of these examples survives scrutiny when compared with the architect’s responsibilities as defined by the AIA documents, with a reasonable standard of care, or with any reasonable interpretation of who should be responsible for nonconforming work. It is physically impossible for an architect to witness and have knowledge of every component placed in a building. There is simply no reasonable or logical way to conclude, “. . . sure the contractor built it wrong, but it’s your fault because you let him do it . . .”
The architect “shall endeavor to guard”
The definition of endeavor is “to attempt to do,” “to try to do” . . . but there is neither absolute obligation nor overriding cause for the architect “to do,” such as there is with the contractor’s obligation to inspect continuously those portions of the work that are to receive subsequent work.
Rightfully, these clauses related to endeavoring to guard the owner against the contractor’s defective work must be balanced against the limited nature of the review of the work the architect is required to do when the architect visits the project site. This is addressed in B141 with almost identical wording in A201:
Merriam-Webster Dictionary defines “generally” as:
Thus, although the architect has authority to reject any non-conforming work that is apparent, the architect does not have a duty to discover all defective work. In fact, the expectation that an architect could discover all defective work on a project is unrealistic due to the architect’s limited presence on the site. Even when the architect provides a full-time on-site project representative on larger projects, the representative’s obligation in this regard is limited compared to the contractor. Architects do have a duty to endeavor to guard the owner against defective work, but this obligation is restricted by the limited duty to become generally familiar with the work.
The AIA documents and the standard of care are clear that the contractor’s obligation and responsibility to install competent and conforming work are not overridden by placing a stronger responsibility on the architect to “catch” him if he does not. In the absence of a specific contract requirement, the architect is not an insurer, ensurer, guarantor, or warrantor of the contractor’s performance. No architect possessed of sanity would agree to such a provision in a contract, and it is not the intent of the AIA documents or the standard of care to place such a responsibility on the architect.
Performance and Payment Bond
In traditional project delivery, there is no such requirement in the AIA documents or in industry practice for the architect to provide a bond covering the contractor’s faithful performance, and we are not aware of an instance where an architect has provided such assurance through either a contract or a bond.
If owners want a financial guarantee of the contractor’s faithful performance, that protection should rightfully be purchased through the contractor and not pursued indirectly through the architect’s professional liability insurance policy.
Merriam Webster defines supervision as:
The architect does not supervise or direct the contractor or the work. The responsibility for supervising and directing the work rests solely with the contractor. A201 is very explicit about these responsibilities:
In addition, we have already seen that 3.3.3 requires the contractor to continuously inspect the work in progress.
The architect interprets the contract drawings and reviews the contractor’s submittals, coordination drawings, and clarification sketches, which anticipate the finished project, for conformance with the design concept. The architect observes the work to form general opinions about progress and quality and reports the status to the owner. At no time does the architect approve the work in its totality. There is no reasonable way that the architect can see each piece of material as it goes into the project. Only the contractor is in a position to provide that service. Substantial completion is “substantial” but not “total.” Final completion is the correction of known, but not necessarily all, items that require correction or completion.
The architect’s certification of the contractor’s applications for payment is based on the general progress of the observed work and the contractor’s notarized certification that the application is accurate and consistent with the work progress.
The architect and the owner must rely on the contractor’s written guarantee that the work is in conformance. According to A201, this obligation withstands all actions of the architect, including observations, inspections, submittal approvals, and payment certifications. This absolute power of the contractor to control and be responsible for the work is never shared, assigned, or assumed by any other party.
By contrast, architects have no authority over subcontractors. They have no power over construction, and they have no obligation or duty to warrant that the contractor’s work is free from defects and deficiencies or is in strict conformance to the contract documents. The architect’s obligation is to endeavor to guard the owner against defects and deficiencies in the work and means nothing more. The premise that “guarding the owner” includes detailed knowledge of every building component is not only unachievable; it runs counter to the contractor’s “sole responsibility” and the warranty that backs it up.
Administering the construction contract provides valuable services to the owner, and it increases the chances of preserving the design concept. It also gives the architect a chance to address errors and omissions hopefully before the work is installed. However, observing and inspecting the work absolutely brings risks that may not result in absolution, and we must be mindful of the claims owners, their lawyers, and contractors sometimes make regarding the ways they believe the architect should be an insurer, supervisor, director, and guarantor of the contractor’s work.
And as you go along the way, watch where you step, keep a lookout overhead, and be sure to be careful out there.
This article is excerpted with permission from the May/June 2006 edition of Texas Architect. Copyright © 2006 by the Texas Society of Architects.
If you would like to ask Jim and Grant a risk or project management question, or request them to address a particular topic, contact them through AIArchitect.
James B. Atkins, FAIA, is a principal with HKS Architects. He serves on the AIA Documents Committee and he is the 2006 Chair of the AIA Risk Management Committee.
Grant A. Simpson, FAIA, manages project delivery for RTKL Associates. He is the 2006 Chair of the AIA Practice Management Advisory Group.
This article represents the opinions of the authors and not necessarily that of The American Institute of Architects. It is intended for general information purposes only and does not constitute legal advice. The reader should consult with legal counsel to determine how laws, suggestions, and illustrations apply to specific situations.