Best Practices
Double Edged Sword: The Owner’s Separate Consultants

by James B. Atkins, FAIA, and Grant A. Simpson, FAIA

Never give a sword to a man who can’t dance.
—Confucius

Consultants are an integral part of providing design services. Architects by definition do not typically provide engineering services such as mechanical, electrical, plumbing, and structural. Nonetheless, we architects are quite accustomed to managing these services and typically include them in our design services agreement with the owner. A typical project will include certifying payments to the contractor and certifying substantial completion.

However, some owners choose to contract directly with the architect’s traditional consultants, and in recent years this trend has increased. This approach appears on the surface benign, but if it is administered by the architect in the same manner as if included in the architect’s agreement with the owner, the architect can assume increased risks. The scope of these risks can range from assuming responsibility for work outside the architect’s contract to violating state licensing statutes.

Many architects do business as usual, oblivious to the risks incurred. After all, it is not a subject that has been examined in depth. It is not currently addressed in The Architect’s Handbook of Professional Practice (but it will be in the upcoming 14th edition due for publication early next year).

The potential risks
Why is this issue of concern? Owner’s separate consultants are a viable and productive option only if it is administered appropriately. It can be quite workable if the proper steps are taken to separate the various design professionals of record. Unfortunately, many architects continue to sign and issue certifications for payment and certificates of substantial completion for work that is not in their contract. In good faith, they process these documents unaware of the potential risks that could threaten.

The full text of this article will examine an architect’s viewpoint of both options, and you can decide which edge of the sword you prefer to use on your projects. Be cautioned that this sword can cut both ways.

Even though separating contracts for design consultants is a growing trend in the industry, there are many resulting implications that the owner and contractor may not understand. And those are topics that should be addressed thoroughly at the outset, during contract negotiation—which also would include review by lawyers and your insurance provider’s risk-management adviser—to make sure all contracts mesh and all responsibilities are understood and appropriately assigned among the design consultants.

Explain it to the owner
You may encounter push back as you negotiate these separate consultant issues because owners may not fully understand the risks involved. Nonetheless, if the issues are properly addressed and administered, having separate prime owner-designer agreements can and often does result in well-designed and -executed projects.

So, as you gather your files and prepare for that meeting with the owner to discuss project contract structure, be prepared to discuss candidly all the issues involved with the project delivery approach they propose. Explain that each approach usually has advantages and disadvantages; two edges that may cut both ways. Use whatever time it takes to help them understand the risks and the rewards of each. And along the way, please remember to be careful out there.

Read the full-text article.