Category Archives: Intersection: Law + Architecture

Where law and architecture meet.

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The “Man Sleeping in the Grass”

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“There is a man sleeping in the grass…  And over him is gathering the greatest storm of all his days.  Such lightning and thunder will come there as have never been seen before, bringing death and destruction.  People hurry home past him, to places safe from danger.  And whether they do not see him there in the grass, or whether they fear to halt even a moment, but they do not wake him, they let him be.” – Alan Paton, Cry the Beloved Country

We all turn somewhere when we need comfort, explanation, or words for our feelings.  For me, phrases from my favorite literature often pop into my head to explain concisely what I feel.

I’m currently the specifications consultant on an out-of-state project in which the Construction Manager, who has an AIA A133-2009 Standard Form of Agreement Between Owner and Construction Manager, is acting like a Design/Builder, and like a Construction-Manager-as-Advisor, and like a hard-bid General Contractor, and like a geotechnical engineer, all at the same time.  Part of this project is bidding right now.

I can’t ignore the future disaster that could occur if this behavior continues.  When I see irregularities in Construction Management early on, in preconstruction and in bidding/negotiating, I usually end up seeing irregularities in Construction Management later, in the middle of construction, when it’s more crucial and impossible to ignore – but at that point, it’s too late to change the course of things.

So I have pointed out these irregularities to my architect-client.  I don’t want the Architect or the Owner to be “the man sleeping in the grass” that Alan Paton described.  I won’t be one of the people “hurrying home.”  I encourage everyone else who foresees problems in construction to try to point these things out to the people who can right the course of the project, before it’s too late.

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Responsibilities of a Project Manager – One for Your “Don’ts” File

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I have a “don’ts file.” It’s a folder on my computer that contains digital photos of construction detail failures and poor construction detail executions. All of these things that I write about in this post would belong in there, if photographing them were a possibility… 

Instead of just blowing off steam about bad project management things I’ve seen, I’m trying to be constructive here, and give advice.

When you’re the architecture firm’s Project Manager on a project, don’t make your consultants beg for sets of as-issued bid documents or permit documents or progress sets. Especially if you’re not actually sending hard copies, and are only issuing PDFs, issue them to your team right away. Issue complete sets of exactly what was issued to the Owner or Bidders. Your team needs them for coordination and reference.

When you’re the Project Manager, don’t assume that everyone else will review those documents after you give them to them, and will fix any problems and do all the required coordination among themselves without being prompted or without even saying anything to you. YOUR job is to COORDINATE the work of all the rest of the team. YOU are the point person that all communication among all other team members is supposed to flow through. AIA documents indicate this1, and even the International Building Code requires this2. I, personally, as the specifications consultant, always review the set after it’s been issued, to see what coordination items I need to be involved in, but not all your consultants will always do this. YOU need to review their documents and make sure the work of everyone is coordinated.

When the Owner has a technical guide, or a design and construction standards document, that the design team is supposed to follow, don’t assume that the spec writer is the only person who is supposed to be familiar with the information in that document. More than almost anyone else, the Project Manager needs to be familiar with the Owner’s guide document. Everyone on the team needs to refer to the Owner’s guide, just as everyone on the team needs to refer to the governing codes, before getting very far on any part of the project.

I know, I know, I’m always writing about how great product reps are, and how they’re the people with the most technical knowledge about their products, but you’re the person with the most knowledge about YOUR PROJECT. So, when you’re working with a product rep, and the product rep writes a spec section for you, don’t just pass it on to your spec writer without reviewing it first. Your product rep may have written that spec section with your project in mind, in which case you would just have to review it to make sure it’s meshing with your design intent and your drawings.  But your product rep might NOT have written it with your project in mind… in which case you need to talk to the rep before your spec writer gets into that section and asks you a bunch of questions such as “Did you change the design of … since the last issue?” “Does our project still have … in it or did you get rid of that?” “Did you give the product rep my spec section from the last issue when you sent him your drawings, or did he start the spec section from scratch, without knowing any of the answers to the questions I already asked you?”

If the Owner adds scope to your project, don’t try to fit it all in to the old schedule – get a schedule extension, or don’t add the new scope. If the Owner adds scope to your project AFTER THE PROJECT HAS ALREADY GONE OUT TO BID, get an extension for the bidders, as well as for yourself.

During the last week before construction documents go out to bid, don’t come up with new products to add to the project at the last minute, and try to sell the Owner on these new things, and get the design team working on incorporating them into the documents, only to have the Owner finally, definitively, say that, no, they really don’t want it in their project. Because now you’ve wasted all your precious document coordination time on adding something new, just to delete it right before issuing…

Don’t just forward every email to your team without reading the emails first and deciding whether 1. they’re correct, 2. they’re applicable, 3. the people you’re sending them to need them.

Don’t assume that just because the Owner is providing and issuing the Procurement and Contracting Requirements, including the General Conditions, nobody else needs to see them or to know what they are. Your spec writer needs them in order to properly prepare Division 01, and you ought to be interested in them, too… They spell out an awful lot of your responsibilities, and the General Conditions of the Contract for Construction are usually part of YOUR firm’s contract, too, since they’re usually incorporated into YOUR agreement with the Owner, by reference.

When you’re the Project Manager, don’t assume that your boss coordinated all the agreements between you and all your consultants, and made sure that between your team and the Owner’s direct consultants, everything that needs to be covered is covered. It might not be, and you’re the person most likely to identify the gaps. Ask your boss for copies of all your firm’s agreements with consultants, and with the Owner, so you know what everyone’s supposed to be doing. And, if the Owner has separate consultants doing part of the design work, or separate contractors doing part of the construction work, don’t assume that the Owner is properly coordinating everything that needs to be coordinated. Unless there’s a Construction-Manager-as-Advisor involved, the Owner probably ISN’T properly coordinating everything.

Sometimes your spec writer might sound bossy when making suggestions. To some people (or from some people) these suggestions might sound like orders. They’re not. You’re in charge. Your spec writer is just another consultant, even if the spec writer is an architect, too. Don’t think that just because the spec writer is giving you professional opinions about what you may want to do in certain situations, that we’re trying to manage your projects for you. We’re not. It’s just that we see more projects than you do, and we look at your drawings in a different way than you do. You should listen to your spec writer, but don’t forget, you’re the manager of your consultants (within the scope of our agreements, that is).

And no, I didn’t make any of this up.

We all have to start somewhere, and we all make mistakes. But architecture firms need to provide better mentoring for project managers.

Notes:

  1. The AIA C401 Standard Form of Agreement between Architect and Consultant says “Except as authorized by the Architect, all communications between the Consultant and the Owner, Contractor or other consultants for the Project shall be forwarded through the Architect.  The Architect shall be the administrator of the professional services for the Project, and shall facilitate the exchange of information among the Owner, Consultant and other consultants as necessary for the coordination of This Portion of the Project.”  The AIA B201 Standard Form of Architect’s Services says “The Architect shall coordinate its services with those services provided by the Owner and the Owner’s consultants.”  The AIA A201 General Conditions of the Contract for Construction says “…the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect’s consultants shall be through the Architect.”
  2. The International Building Code 2009, in Chapter One, Section 107.3.4 says “the building official shall be authorized to require the owner to engage and designate on the building permit application a registered design professional who shall act as the registered design professional in responsible charge. If the circumstances require, the owner shall designate a substitute registered design professional in responsible charge who shall perform the duties required of the original registered design professional in responsible charge. The building official shall be notified in writing by the owner if the registered design professional in responsible charge is changed or is unable to continue to perform the duties. The registered design professional in responsible charge shall be responsible for reviewing and coordinating submittal documents prepared by others, including phased and deferred submittal items, for compatibility with the design of the building.”  That registered “design professional in responsible charge” is someone from YOUR OFFICE.  Maybe even you.  Your office is supposed to review and coordinate the documents of everyone on the team before submitting to the building department.
Unknown's avatar

Company Culture and Architects’ Contractual Obligations

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Architecture firm principals, managing partners, anyone who signs Contracts or Agreements:  Always give a copy of your Owner-Architect Agreement to your project architects, project managers and job captains at the beginning of the Schematic Design Phase.  If your construction contract administration team is made up of different people, give that team copies of your Owner-Architect Agreement at the beginning of the Construction Phase, at the very latest.  Give your team copies of your Architect-Consultant Agreements, too.  (If your firm keeps fee info confidential from employees, obscure those numbers.  But give them the documents!) 

When you give them the documents, tell them to read them!  Tell the construction contract administration team to read the Owner-Contractor Agreement, and the General Conditions of the Contract for Construction, as well as the Owner-Architect Agreement and Architect-Consultant Agreements. 

All of these documents spell out some of the Architect’s obligations.  Many emerging professionals are not familiar with all of the Architect’s typical obligations.  Those who haven’t yet begun the process of studying for their architectural registration exams may have no idea what’s contained in an Owner-Architect Agreement or in the General Conditions of the Contract.  But when these Agreements get executed, the Architect becomes legally responsible for performing the activities required by these Agreements.  If you have unlicensed people managing projects, you have to be especially explicit about the requirement that project managers are familiar with these documents, because they may have no way of knowing, except through your guidance.  (Remember, they’re interns, working under your direct supervision, learning how to be the architects of the future.)

If you don’t demonstrate to your employees the importance of these documents, some of them may never understand that they are contractually obligated to perform the exercises required by these documents! 

Attitudes about the importance of following through on contractual obligations come from the top.  The attitudes of the principals shape the company culture of the firm.  Do you want your firm to be known for following through on obligations?  Or do you want your firm to be known for having employees who aren’t sure what the firm’s obligations actually are?

Unknown's avatar

A Note on “C.A.” – Administration of the Contract

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We architects throw around the acronym C.A. pretty casually.  We all know it means the work that we do during construction of the building we designed.  But some of us think it means “Construction Administration.”  I used to think that, until I started paying better attention to contracts.  

AIA A201-2007 General Conditions of the Contract for Construction, refers to these services as “Administration of the Contract.”  The services architects provide during construction constitute “Construction Contract Administration.”  So, really, C.A. stands for “Contract Administration,” NOT “Construction Administration.”  As Ron Geren pointed out in an excellent blog post a few months ago,  http://specsandcodes.typepad.com/specsandcodes/2011/06/construction-administrationor-is-it.html the term “Construction Administration” really could be interpreted as meaning something more like “Construction Management” than “Administration of the Contract.”

Melissa Brumback’s post this morning prompted me to respond.  Except for the use of the term “Construction Administration,” her article is good, and has good advice for architects.  Check it out: http://constructionlawnc.com/2011/11/03/construction-administration/

 

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Architecture’s Identity Problem? Nope. (More on the Importance of Licensure)

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There’s an article out there that keeps popping up on my radar screen (ok, on my Twitter feed).  It’s about “Architecture’s Identity Problem.”  The article is by John Cary, and is published by GOOD.1  

John Cary says that “the profession and the public are measurably worse off because of “the fact that “more than half of architecture school graduates don’t enter the profession” and “fewer still get licensed.”  I disagree.  In fact, I think that the profession and the public are bad off enough because of how many people are out there designing and working in architecture firms without demonstrating, through examination, that they’re qualified enough to be licensed architects.2

John Cary seems to suggest that people who graduate from architecture school should be able to be architects without having to endure an internship or the Architect Registration Examination.  As part of his protest against the long internships and examination requirements that architects have to undergo before being able to call themselves architects, the article compares architectural internships to medical residencies.  This is not a good comparison.

The article points out that medical school graduates are legitimately called doctors before completing their residencies.  That’s true.  Medical students graduate from medical schools as M.D.’s, medical doctors.  However, first they graduate from undergrad.  They they apply to, and have to be admitted to, med school.  They take their first round of national board exams after their second year of medical school, then during the last 2 years of their 4 year medical school programs, their training is all clinical, in hospitals, under the direct supervision of doctors.  Then they take their second round of national board exams.  Then they graduate.  Then they do their internships (the first year of their residencies) and take their third round of national board exams.  Then, finally, they’re allowed to practice without having to be supervised by other doctors.  And then they go on to finish their residencies.  And take more board exams.  Then many do fellowships, again learning from other doctors.  So it’s not as if medical students just go to school, sit in classrooms for 4 years, and graduate as medical doctors.  They are thoroughly tested, by national exams, 2 different times before graduation, and they also have 2 years of practical experience before they graduate from medical school.  (And then most continue their training.)    

But the biggest difference between medical school and architecture school is that med students are taught by doctors – licensed doctors.  And the students are practicing clinical medical work, in hospitals, during the last half of med school.  They are observing and helping doctors treat patients, before they graduate as M.D.’s.  And when they go on to practice medicine unsupervised, they are regulated and licensed by the states they practice in.  NOT EVEN HALF of the professors teaching in accredited architecture schools are LICENSED anywhere in the U.S.  In a 2009 study by the NAAB, only 34% of faculty at NAAB-accredited schools of architecture were licensed architects.3  

Therefore, architecture students are barely being taught by actual architects.  And, very little of what is actually taught to these students is information about “making sure buildings don’t fall down.”  School curricula are very heavy on theory and design and very light on building technology – the stuff architects need to know to make sure their designs don’t fall down. 

Another important thing to consider is that many architecture students never work in architecture offices before they graduate from architecture school.

These are very good reasons for the fact that, as John Cary says “Earning a diploma from architecture school isn’t enough to be awarded the title of ‘architect.'”  The heavy focus on theory and design in school is the reason the architectural profession has the requirement for an internship (apprenticeship) period.  In some states, you can still sit for your exams and get licensed after a certain number of years of practice under the direct supervision of a licensed architect, even if you don’t have a degree of any type.4  This demonstrates the importance that regulatory agencies place on experience and demonstration through examination over schooling.  I personally believe that, more than a degree in architecture, the combination of practical experience and successful completion of the examinations is a better indicator of a person’s being properly qualified to design buildings that will not fall down.   

Not everyone makes it through all those steps that medical students have to undergo, and not everyone makes it through all the steps that architectural interns have to undergo.  These applications, exams, and grueling hours weed some people out.  Think about it – do you want the guy who didn’t pass those national exams, and who doesn’t have malpractice insurance, operating on YOU?  No, you want the guy who had the intelligence and the perseverance to get through all these barriers to being a doctor.

Do you want the person who didn’t feel like taking the Architect Registration Examination designing your office building?  You shouldn’t – and your lender, your insurer and your attorney don’t – because that designer doesn’t have professional liability insurance because he doesn’t have a license to practice architecture.5 

John Cary wrote, “It’s a long, arduous road that many in the field are either unable or simply unwilling to travel.”  It is.  But why would you want those without the ability or the willingness to travel this road taking the professional responsibility for preparing the construction documents for YOUR buildings?

We need more architectural interns pursuing licensure.  In these very troubled times for our profession, we need to be pushing to raise the bar of professionalism, not to lower it.  As John Cary says, many people do “have a romantic view of the architecture world.”  That’s fine, but it’s not reality.  And it’s time for those of us IN the architecture world to WAKE UP to reality, and push for more quality, not less, in our profession.  

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1. Here’s the link to the article: http://www.good.is/post/why-architecture-s-identity-problem-should-matter-to-the-rest-of-us/

2. With such high unemployment levels among architects right now, how could the profession and the public possibly be better served if everyone who wants to be an architect is legally allowed to just say that he is an architect?  We have too many unemployed licensed architects, who, generally, are more qualified to practice architecture than all the unemployed unlicensed architectural designers.  

3. This 34% figure includes professors, associate professors, and assistant professors.  Only 31% of actual professors are licensed.  Here’s a link to the website NAAB: http://www.naab.org/news/view.aspx?newsID=52 where you can get the report.

4. In Colorado, that period is 10 years.

5. In Colorado, you can’t get errors and omissions insurance if you aren’t licensed in the state.  Sophisticated clients will not hire an architect who doesn’t have this professional liability insurance. 

 

 

 

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“Architect” Magazine Actually Asks “Does Licensure Matter?”

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I got my “Architect” magazine in the mail today (you know, “The Magazine of the American Institute of Architects”).  There’s an article called “The Problem with Licensure” or “The 50-Year-Old-Intern” that is all about “… a decline in registered professionals…  And should we care?”

Outrageous. 

Here’s a link to the article: http://www.architectmagazine.com/architects/the-50-year-old-intern.aspx  It’s about the so-called “philosophical debate” about whether licensure matters.  It matters.  

Without licensure and regulation by the states, the public has nothing reassuring them that people practicing architecture are qualified to do so.  The Colorado Revised Statutes state that the regulatory authority of the Colorado state board of licensure for architects “is necessary to safeguard the life, health, property, and public welfare of the people of this state and to protect them against unauthorized, unqualified, and improper practice of architecture.” 

Without architects’ professional liability insurance, their clients don’t have much recourse in the case of errors and omissions by an architect.  When I obtained my architect’s professional liability insurance in the state of Colorado, the first question my agent asked me was whether I was a registered architect in Colorado.  I told him that I am, and he said, good, because you can’t get insurance without being licensed. 

This is telling.  The stuff that floats to the top when the lawyers and the insurance companies get involved tells us that licensure matters to the public, licensure matters to the governments, licensure matters to the courts, licensure matters to the insurers, and licensure matters to sophisticated clients.  And it should matter. 

Ron Geren’s recent blog post, “Towards a More Irrelevant Architect” http://specsandcodes.typepad.com/specsandcodes/2011/10/towards-a-more-irrelevant-architect.html touches on this issue when he says:

“In an effort to protect its members, and the profession in general, from undue risk, the American Institute of Architects (AIA) inadvertently reduced the influence of the architect by minimizing the liability to which the architect may be subject.  This shirked risk was quickly snatched up by other members of the construction industry—namely by contractors and members of the growing construction management profession.” – Ron Geren

Risk is often carried by the people who are willing to be grownups, and risk is often shirked by those who are less willing to step up and take responsibility for their own actions (like, well, children).  Remember that whole risk-reward thing?  When architects are willing to take more responsibility for their own actions, they’ll have more freedom, and will earn more respect. 

Architects, we need to protect ourselves.  But we don’t do it by ducking responsibility, and we don’t do it by having the magazine that is the so-called voice of our primary professional organization practically condoning design professionals’ remaining unlicensed. 

First, architects need to have very good agreements.  Don’t sign Owner-Architect agreements that have the potential to screw you over.  

Second, architects need to have very good construction documents.  Don’t issue bad documents.  Have good drawings, have good specs, have coordinated documents.  If you have interns doing most of your drawing production, review carefully before those documents go out with YOUR stamp on them.  

Third, architects need to have very good insurance.  (Oh, yeah, and you need to be LICENSED to get that.) 

Then work hard.  Do your best.  And encourage your employees to follow in your footsteps and get licensed.  Maybe you can’t give them raises for getting licensed, but at least give them verbal encouragement to take their exams, and praise them when they pass all of their exams.  We are in this thing together, and the interns are the future of our profession.  And interns need to be on a path to licensure!!

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Hey, Architects, When It’s in the Specs, It’s in YOUR Contract, Too!

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Architects, if your agreement with the Owner includes construction phase services, you are contractually obligated to administer the contract for construction according to the procedures defined in the agreements, the conditions of the contract for construction, and the specifications!

A commonly used Owner-Architect Agreement, AIA Document B201-2007, Standard Form of Architect’s Services: Design and Construction Contract Administration, states,

“The Architect shall provide administration of the Contract between the Owner and the Contractor as set forth below and in AIA Document A201-2007, General Conditions of the Contract for Construction.” – from Article 2 of AIA Document B201-2007

So that leads us to look at AIA Document A201-2007, which states,

“The Architect will provide administration of the Contract as described in the Contract Documents…” – from Article 4 of AIA Document A201-2007

Remember:

“The Contract Documents…consist of the Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications…” – from Article 1 of AIA Document A201-2007

So, you know all those sections in Division 01 that say things like “Architect will review each submittal…” “Architect will review each RFI…” “Architect will request additional information or documentation for evaluation within one week…”  Those are things that you are contractually obligated to do, because they’re part of your contract with the Owner.

If things get really bad on a project, and you end up in litigation, the lawyers will ask YOU, the Architect, “Did you request this?  Did you review this?” etc.  If you didn’t do the things that the specifications indicated that you would do, you could be in trouble.  The attorneys working to protect the interests of the General Contractor will do everything they can to shift blame away from the General Contractor.  That’s their job.  Don’t make it any easier for them than it needs to be!

Know, understand, and follow through on your obligations for procedural and administrative processes during construction contract administration.  Start by reading the agreements, the conditions of the contract, and the specifications!

 

Unknown's avatar

If It’s in the Specs, It’s in the Contract

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I’m going to say it again:  If something is required by the Specifications, it’s required by the Contract. 

A procedure or item specified in the Specifications is part of the Contract, just as much as if the procedure or item were specified in the Agreement.  (The Agreement is what many people usually think of as the “Contract,” because it’s the particular document that gets signed by the Owner and the Contractor, and it has the Contract Sum indicated in it.  But the Agreement is only ONE PART of the Contract.)

The Contract is made up of the Agreement, the Conditions of the Contract, the Drawings, the Specifications, etc.  AIA Documents state this requirement most clearly; Owner-generated Agreements and Conditions of the Contract sometimes fall short of being explicit about this.  (This is one of many good reasons to use AIA Documents instead of Owner-generated documents.)

This requirement is SO IMPORTANT that it makes up ARTICLE ONE of AIA Document A101-2007 (Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum), a very commonly used Agreement.

“The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement, all of which form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein.”  – from Article 1 of AIA Document A101-2007

I don’t think I can say this any more clearly. 

But somehow, there are a number of Contractors out there who don’t seem to realize that the Specifications are part of the Contract, and there are even a few Architects out there who don’t seem to realize that the Specifications are part of the Contract that they are supposed to be administering during construction.  An Owner agrees to pay a Contractor a certain sum, the Contractor agrees to provide the Owner with certain things indicated by the Drawings and Specifications and other Contract Documents, and, in a separate Agreement, the Architect and the Owner agree that the Owner will pay the Architect a certain sum, and the Architect will administer the Contract between the Owner and the Contractor.  We all have contractual obligations during construction, and we all need to understand, and follow through on, all of those obligations. 

Remember, if it’s in the Specs, it’s in the Contract.

Unknown's avatar

Contracts, and My Hope for the Day

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I hope that today is the last day in my life that an architect-client of mine tells me that the Contractor will not be providing the project record documents required by the project specifications because the requirement to provide record documents “is not in their Contract.”

Remember, per AIA Document A201-2007, (which is the General Conditions of the Contract that I most frequently work with) the Contract Documents “consist of the Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract, other documents listed in the Agreement and Modifications issued after execution of the Contract.”  Specifications are part of the contract.

For more of the basics like this, check out my informational website, www.specificationsdenver.com

To better days!

Unknown's avatar

Rejection of Submittals

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“The rejection of a submittal for good cause is not a cause for a delay claim on the part of the contractor.  The contractor should anticipate the potential need to resubmit incomplete or rejected submittals in the submittal schedule.”

My thought of the day, from The Project Resource Manual – CSI Manual of Practice.

We all know this, right?  Let’s practice it!