Architect’s
Responsibilities:
Services and Standard of Care
Reprinted from The AIA Official
Guide to the AIA Contract Documents
Summary: Newly
published by Wiley is The AIA Official
Guide to the AIA Contract Documents, an exhaustive compendium
of what the AIA documents do, how they came to be over the course
of the last 120 years, case-law discussions on issues that have shaped
the documents, and explanations of key issues in each of the document
families. Reprinted here is the section referring to the owner-architect
agreements on an often-misunderstood issue, the professional standard
of care.
Official
Guide to the Current AIA Contract Documents
Available from the AIA Bookstore, The AIA Official
Guide to the AIA Contract Documents, opens with a broad overview
of contract law and avoids legal jargon in describing the rationale for
having contract documents. Highlighting the changes from the now-obsolete
1997 documents, the authors give the reasons and benefits of these changes—based
on legal precedent, research, review, analysis, and multi-party consensus
debate. Meticulously parsing each AIA Contract Document, this text includes
also the leading case law that has shaped and interpreted the documents.
And, while the current inventory lasts, when you buy a copy of The
Official Guide to the AIA Contract Documents you also receive, at no additional
cost, the latest edition of The Architect’s
Essentials of Negotiation by Ava J. Abramowitz, Esq., Hon. AIA.
Visit AIA.org to see an informative
video on the AIA electronic documents version 4. You can also request
a free PDF of AIA contract relation diagrams you can use in client presentations
to explain the various client/architect/contractor project-delivery relationships.
For more information
on the AIA Contract Documents, visit AIA.org.
The performance of licensed design professionals such as architects
and engineers is measured by two factors. First, the design professional
is required to perform the services described in the agreement with
the owner; this is a contractual standard, and if those services
are not performed, the design professional can be held in breach
of its contract. However, the manner in which those services are
performed is judged by the professional standard of care, which is
a standard embodied in tort (negligence) law. Under this standard,
the design professional is held to use the same degree of care as
is ordinarily practiced by other similarly situated design professionals
in that discipline. An architect might perform its contractual responsibilities
to provide cost estimates, but do so in a negligent manner. In such
a case, the architect could be held liable for malpractice.
The architect’s professional standard of care is recognized
by common law (judicial decisions) throughout the United States.
However, this dual standard can be difficult for clients to understand,
especially because it is not written down in any single place. Since
the mid-1970s, many owners have sought a greater degree of certainty
by establishing a standard of care in the Owner-Architect Agreement
itself, or they have proposed provisions that would affect the standard
of care. This has been troublesome, because in many cases the standard
that the owner seeks to establish is higher than the professional
standard of care that would otherwise apply. An unwary architect,
employing its normal practices consistent with local professional
standards, could later find itself being judged according to a higher
standard.
Until the current edition, the AIA relied on local law to define
the architect’s standard of care. However, in order to address
owner desires for more certainty as to this standard, all of the
2007 Owner-Architect Agreements contain a contractually defined standard
of care. Professional practices vary from one locality to another,
so this is a local or community-based standard. What is a normal
practice for architects and engineers in New York City who design
80-story buildings may not be normal in school construction in Arizona.
The AIA drafted this standard to be consistent with the decisions
of the state courts. For that reason, any proposed changes should
be scrutinized very carefully and discussed with legal counsel.
Following the standard of care is a statement in all but B105™–2007
(the most abbreviated of the Owner-Architect Agreement forms) regarding
how expeditiously the architect’s services are to be performed.
This is a provision carried forward from the 1997 and earlier editions
of the Owner-Architect Agreement. Essentially, the time frame within
which services are performed is also measured by the local professional
standard of care.
The following language is found in B101™–2007 §2.1,
B102™–2007 §1.1, and B103™–2007 §2.1:
“The Architect shall provide the professional services as set
forth in this Agreement.”
And accompanying that, the following language is found in B101™–2007 §2.2,
B102™–2007 §1.2, and B103™–2007 §2.2:
“The Architect shall perform its services consistent with the
professional skill and care ordinarily provided by architects practicing
in the same or similar locality under the same or similar circumstances.
The Architect shall perform its services as expeditiously as is consistent
with such professional skill and care and the orderly progress of
the Project.”
In B104™–2007 §2.1, the abbreviated from of Owner-Architect
Agreement, these two paragraphs are combined in a single statement:
“The Architect shall provide the professional services as set
forth in this Agreement consistent with the professional skill and
care ordinarily provided by architects practicing in the same or
similar locality under the same or similar circumstances. The Architect
shall perform its services as expeditiously as is consistent with
such professional skill and care and the orderly progress of the
Project.”
B105™–2007, the most abbreviated form of Owner-Architect
Agreement, contains an even more abbreviated statement of the standard
of care but does not mention time:
“Article 1 Architect’s Responsibilities
The Architect shall provide architectural services for the Project
as set forth in this Agreement in a manner consistent with locally
accepted standards for professional skill and care. The Architect
shall assist the Owner in determining consulting services required
for the Project. The Architect’s services include the following
consulting services if any:” [followed by a blank space to
be filled out].
Copyright 2009 The American Institute of Architects. Published by
John Wiley & Sons, Inc. Reprinted with permission. |
