Best Practices
The Good, the Bad, and the Ugly: Challenges and Risks of Nonconforming Work

by Jim Atkins, FAIA, and Grant A. Simpson, FAIA

Your discovery of the contradiction caused me the greatest surprise and, I would almost say, consternation . . .
—Gottlob Frege

Summary: Work conformance is an important measure of a successful project because it fulfills contracted obligations. Yet when buildings are constructed, there is always some amount of nonconforming work; always. The variances may be minor. Hopefully, they are. But they are always there. Architects may not be aware of all of the discrepancies, and that is why we certify “substantial” completion rather than “final” completion, and why certifications for payment are limited to our knowledge, information, and belief. We do not and cannot know precisely how all of the work has been put together because we do not manage construction, and we do not observe each and every act by every worker every day.

Below is a synopsis of the article. Follow this link for the full text.

Architects are hired to design projects, and contractors are hired to construct projects. The architect’s activities during the construction phase are focused on observing the work in progress, reporting defective and nonconforming work that is observed, certifying amounts owing to the contractor, and ultimately determining substantial and final completion of the project.

These activities carry with them some amount of risk, on which we have made many observations. We addressed general construction contract administration responsibilities last year in the June article, “Visible Means: Site Visits and Construction Observation.”
We addressed the architect’s responsibility for finding defective and nonconforming work in August in “Absolute or Absolution? Observations, Inspections, and the Contractor’s Warranty,” and we addressed the complexities of substantial completion in January of last year in “Substantial Completion, Where Art Thou?”

When the variances are minor, there is little to be concerned about, but when the variances are more substantial, issues can arise. The full text of this article is about the prevalence of nonconforming work in all projects, its causes, and the options available for dealing with it. Nonconforming work is often accepted by the owner, but the architect seldom escapes if the differing condition adversely affects the work. We will offer some suggestions for improving risks through documentation, and we will explore the options available when the owner and architect disagree on acceptance. We will also take a look at claims made by contractors in attempts to shift responsibility for conformance to the architect.

What are you prepared to do?
Although the AIA Contract Documents endeavor to establish specific responsibility for nonconforming work, and they clearly draw the conclusion that only the contractor can cause it, the fact remains that the architect will always be dragged into the fray if a project is beleaguered by extensive nonconforming work. The most effective risk management approach for an architect is to try reasonably to find nonconforming work. The next best risk management approach, when nonconforming work is discovered, is to discuss it at regular meetings and keep the subject open until the issue is resolved, keeping in mind that it is the owner who accepts nonconforming work, and the architect may choose not to change the contract documents; only record an owner-accepted nonconformance.

When you do encounter nonconforming work, you should expect that you may be blamed for causing it. That seems to be the game these days. You should face the heat, and bring along your dog-eared and faded Owner-Architect Agreement and A201 in your briefcase so you can cite terms and conditions.

It is unfortunate that so many risk circumstances arise from the architect’s construction administration efforts. This is largely because the other stakeholders—owners and contractor, subcontractors, and vendors—do not have a clear understanding of what architects can and are supposed to do. So, as you sit at the picnic table in your backyard and ponder the greenhouse you’d like to build, think about what you can do to help others better understand the architect’s duties, and be careful out there.

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