Category Archives: Intersection: Law + Architecture

Where law and architecture meet.

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“Well, If It’s Not on the Drawings…”

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Recently, I was preparing a masonry spec section for a remodel project.  The project has an existing CMU wall which is to receive a small area of new CMU infill.  It’s an exterior structural wall, and the architectural drawings indicate that the infill CMU is to be grouted solid. 

I asked the structural engineer if we need reinforcing bars (rebar) in the cores of the CMU, and I told him that I would delete rebar from the spec section if we don’t need rebar, so that the Contractor knows he doesn’t need to provide it. 

The engineer said, “You can just leave it in the specs.  If the rebar isn’t on the Drawings, they’ll know they don’t need it.” 

NNNOOOOOOOOoooooooo…..!!!!! 

“Drawings and Specifications are complementary and what is called for by one shall be as binding as if called for by both.”  This is according to the General Conditions of the Contract for this project.  This is a typical provision in construction contracts.1 

So, if rebar isn’t required for that wall, there should be no rebar in the spec or on the drawings.  If rebar is in the specs, even if it’s not on the drawings, rebar is required by the contract.  If rebar is on the drawings, even if it’s not in the specs, rebar is required by the contract. 

Design professionals need to completely comprehend this concept, and for some unknown reason, many don’t.  Contractors need to completely comprehend this requirement, and for an understandable reason (it’s not in their best interest at times) they don’t always seem to grasp this.

The lead design professional on the project, the entity who is performing construction contract administration, is the party who must enforce the contract documents, including the specifications.  This party has to understand the relationships among contract documents before he or she can properly enforce them.  If the specifications and drawings have been prepared to be complementary, and are clear, concise, correct, and complete, they will be easy to understand (for all parties) and easy to enforce.

I’ve said this before, on my informational website, www.specificationsdenver.com :

“Unless the design team intends for something to be included by the contractor in the project, it shouldn’t be in the specs (or drawings).  There shouldn’t be a bunch of things in the specs ‘in case we need them’ if we don’t actually intend for them to be in the project, because by doing that, we’ve taken the first step to our documents’ not being taken seriously by the contractor.  If there is extra information in the specifications, the contractor will assume that the specifications are boilerplate specifications that are reused on all projects, and are not specific to the project, and will ignore all the specifications. 

“Also, the architect should enforce the provisions of the specs and the agreement and the conditions of the contract, or else these documents won’t be taken seriously.  We have to say what we mean, and prove that we mean what we say.”

If the contractor starts ignoring the specifications, the architect or engineer who’s doing construction contract administration will have a much harder time trying to enforce the specs.  When the specs include a lot of inapplicable things, the contractor will start ignoring the specs, because guessing at the intention of the specs, or constantly asking about the intention of the specs, will be a waste of the contractor’s essential time.  (Of course, the contractor is usually contractually obligated to ask for clarification in the case of conflicts in the documents, but it’s not fair for design professionals to knowingly issue documents with conflicts.) 

So, architects and engineers, remember that the drawings and specifications are complementary and what is called for by one is as binding as if called for by both.  Enforce this during construction! 

And, architects and engineers, don’t put extra stuff in the specs!  It wastes your time and the contractor’s time during construction, and it may waste the owner’s money.

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Notes:

  1. AIA A201, The General Conditions of the Contract for Construction, indicates that the Contract Documents consist of “the Agreement, Conditions of the Contract, Drawings, Specifications, Addenda” et cetera.  AIA A201 goes on to say “The Contract Documents are complementary, and what is required by one shall be as binding as if required by all…”  (AIA A201 is used on most of the projects I work on.) 
Unknown's avatar

Construction Documentation Reminders from Children’s Literature

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“What I mean and what I say is two different things,” the BFG announced rather grandly. 

“Meanings is not important,” said the BFG.  “I cannot be right all the time.  Quite often I is left instead of right.”

I’m reading The BFG with my 7-year-old.  It’s a 1982 children’s book by Roald Dahl.  (To give you a frame of reference, in case Dahl wasn’t one of your favorite authors when you were a kid, Roald Dahl also wrote the 1964 Charlie and the Chocolate Factory.) 

The BFG (the Big Friendly Giant) is a nice vegetarian giant, who tries to communicate clearly, but frequently mixes up his words.  He knows that language is not his strong point, but he thinks that’s just fine.

The book is charming and funny, especially when you read it with a child who has nearly perfect grammer, understands that the BFG’s way of speaking isn’t grammatically correct, and finds it hilarious.  We laugh a lot when we read this book.

But some of the BFG’s pronouncements have uncomfortably reminded me of some people whose paths I’ve crossed in my professional life.

There was the electrical engineering consultant I worked with a long time ago, when I was practicing as an architect.  His drawings were a mess.  I told him his AutoCAD grid snap settings were turned off, so none of the 2 by 4 light fixtures in his ceiling plans were actually on the ceiling grids.  He proudly told me, about the snaps, “I don’t use ‘em.”  Aaarrrgghh! 

There was the owner’s project manager who, when I commented that a provision in the owner-generated general conditions didn’t match the rest of the documents, said “This is illegal verbiage; I would not worry about it.”  (The owner had no intention of clarifying this provision in our documents, and had no intention of correcting this “illegal verbiage” for future projects.)

There are owners and architects both, on CM/GC projects, who have had an awfully relaxed attitude towards documentation before and during construction, who have dismissively said things such as, “Oh, we talked about that with the contractor.  He knows what we want there.”  They didn’t intend to clarify our documents, and were therefore relying on the contractor to provide something based only on a discussion.

In all three of these examples above, the professionals knew that communications were not clear, and they were quite sure that that was just fine.  IT’S NOT OK!

Now, since this is the first time I’ve re-read The BFG since I was little, and we’re only halfway through, I don’t remember if the BFG’s communication shortcomings cause any mishaps.  I am sure the giant’s miscommunications do not cause any change orders, lawsuits, or unhappy clients.

On the other hand, unclear and incomplete construction documents can cause misery for owners, architects, and contractors.  They often lead to change orders, and they can lead to lawsuits, and unhappy clients.

CSI (The Construction Specifications Institute) always reminds us that our contract documents must be clear, concise, complete, and correct.  If you can’t accomplish that yourself, the right thing to do is to hire someone who can accomplish it for you.  Owners, you should have qualified people prepare (and regularly update) your procurement and contracting requirements.  If you are a public entity, you absolutely owe that to the taxpayers.  Design professionals, if you haven’t mastered new must-have technologies, you should hire, or outsource to, people who have.  Owners and design professionals, you should properly staff projects so that the required documentation gets done in a timely manner to prevent misunderstandings.  (Design professionals – this needs to be a factor when you negotiate your fees.) 

Contracts are based on what’s written and drawn.  They are not based on what we meant to write or draw.

“I know exactly what words I am wanting to say, but somehow or other they is always getting squiff-squiddled around.”  (The BFG)

We can do better.

Unknown's avatar

Please, Colleagues, Read Your Contracts

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Please, fellow design professionals, read the agreements your clients give you to sign.

Please understand them before you sign them.  Review them with your attorney if you don’t understand everything.

Negotiate with your clients to get acceptable provisions.

Know the liability pitfalls of giving up ownership of your instruments of service.

Understand the dangers in giving up the ownership of your copyrights on your work.

And, please don’t do free work.

Times are tough.  Please don’t contribute to making the recovery harder for our profession.

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Ummmm, What is He Thinking? AIA chief economist Kermit Baker suggests that architects should do what they do best—design—and hire paraprofessionals to do the rest.

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This month’s Architect Magazine has an article about using design “paraprofessionals,” written by the AIA’s chief economist, Kermit Baker. 

“AIA chief economist Kermit Baker suggests that architects should do what they do best—design—and hire paraprofessionals to do the rest. Try it. Your profitability might just skyrocket.” 

http://www.architectmagazine.com/business/add-a-layer-the-case-for-paraprofessionals.aspx

I think Mr. Baker is misguided, or misunderstands how our profession works.  Here’s my response, which I posted on the website.

“In this scenario utilizing paraprofessionals in architecture firms, who would train the interns?  What would they learn?

“Since interns who want to become licensed someday have to work under the direct supervision of licensed architects, what would they be learning if the licensed architects aren’t doing anything technical?

“The best way to learn how a technical detail is supposed to look is to draw that detail from scratch.  If interns never learn that, we would be very, very poorly training the future leaders of the firms.  What we are licensed to do is to design safe and sound buildings.  We are not licensed to just design whatever we want. A good start to designing safe and sound buildings is to understand building technology.  We are not training architecture students in building technology in architecture school, and if we stop training interns in building technology, we are headed for much tougher times for the profession.”

Medical students receive 2 years of clinical training, working in hospitals, while they’re in medical school, before they graduate as M.D.’s.  Architecture students have no official training working in architecture offices while they’re in school, but they don’t graduate as Architects.  They go to work as architectural interns after they graduate.  They receive their training on the job, before they’re allowed to sit for their licensing exams and, if they pass their exams, become Architects.

In school, we do not train architecture students in what they need to know to become licensed.  If we quit training them them in technical matters on the job, how will they even become licensed?  And if they do become licensed, how will they be able to oversee the paraprofessionals working for them, if they actually have no technical understanding themselves?  Who will do the construction contract administration?  The licensed architects are the ones who need to seal the drawings and specifications.  The licensed architects are the ones with the professional liability and obligation to design safe and sound buildings.  That’s what they are licensed to do.   

It’s not all about profitability.  Unless the system of architectural education and training completely changes, architects have an obligation to train interns in practical and technical matters.  We can’t shift that responsibility to paraprofessionals.  Soooo… if we have paraprofessionals doing the work that interns and young architects usually do, why would anyone hire an intern?  And if there are no interns, who will be the architects of the future?

Unknown's avatar

Words Matter… Especially in Contracts

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I am not an attorney, but once in a while, I look at contracts all day long.  Why would I do that to myself?  Because these documents directly affect my work of preparing architectural construction specifications.

The contract documents for a construction project include contracting forms (such as the owner-contractor agreement), conditions of the contract (such as AIA A201), the drawings, and the specifications.  These documents, all together, make up the contract.

These documents should not conflict.  All too often though, because different parties prepare different documents, conflicts occur.

The owner-contractor agreement may say one thing, and the conditions of the contract may say the opposite.  The conditions of the contract may say one thing, and a Division 1 specification section may say the opposite.  A Division 1 specification section may say one thing, and a technical section of the specifications may say the opposite.  The technical sections of the specifications may say one thing, and the drawings say the opposite.  I’ve even seen General Conditions directly conflict with Supplementary Conditions!

My attorney and insurance professional friends will happily tell you that when a contract is ambiguous, courts usually side against the party who drafted the contract.  What does that mean for design professionals?

We have to coordinate, coordinate, coordinate.  If the Owner prepares General Conditions, the person preparing the specifications needs to make sure the specifications are coordinated with the Owner’s General Conditions.  If AIA A201 General Conditions are used, and the Owner just prepares Supplementary Conditions, the person preparing the specifications needs to make sure the specifications are coordinated with the Owner’s Supplementary Conditions.  If the Owner prepares General Conditions, Supplementary Conditions, and Division 1, the person preparing the technical specifications needs to make sure that his work product does not conflict with the Owner’s documents.  To protect his firm, the person signing the Owner-Architect Agreement should make sure that the Owner’s General and Supplementary Conditions do not conflict with provisions in the Owner-Architect Agreement.

And the issue on my mind all day today?  If the Owner has a Guide Specification/Technical Specification/Specification Standards sort of document that he expects design professionals to adhere to when preparing drawings and specifications, this guide SHOULD NOT CONFLICT with the Owner-prepared General Conditions and Supplementary Conditions.  Ah, yes, this should go without saying… However, I have spent days of my career as an architectural specifications consultant trying to coordinate conflicts among Owner-generated documents to make sure that the work I produce does not conflict with any other contract documents.

Again, I am not an attorney, but I have a feeling that uncoordinated Owner-prepared documents increase our risk as design professionals.  We have to produce coordinated documents, no matter what our Owner clients give us.  Every word matters! 

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Business Structure

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I wrote a letter to the author of “Setting Up a Business Structure” in the September 26, 2010 Wall Street Journal Sunday in the Denver Post. 

In this time of high unemployment among architects, we don’t need any misinformation about setting up small businesses.

Dear Ms. Needleman,
 
LLC does not mean “limited liability corporation.”  LLC means “limited liability company.”  Your referring to LLC as “limited liability corporation” in today’s Wall Street Journal Sunday article is incorrect and could confuse people.
 
Your article also says that Marc Karell lost his unemployment benefits because of filing his new business as an LLC.
 
Don’t you think he would have lost those benefits by filing as a C-Corp or S-Corp or any other business that requires filing forms to create a new company?  I don’t think it’s the LLC structure itself that is to blame, but the setting up of his new business.
 
In Colorado, at least, if you set up your new business (with the state) as an LLC, you have to decide (for IRS purposes) whether you will be a corporation (S or C), or a partnership, or a sole proprietorship.  You don’t choose from the 5 choices you listed: S-Corp, C-Corp, partnership, sole proprietorship, or LLC.  You choose from the first 4.  You can also be an LLC in addition to one of the first 4, but you HAVE to be one of the first 4.
 
This second topic I’ve brought up may vary by state.  However, referring to LLC as “limited liability corporation” is a pretty big mistake. 
 
People need sources of information that they can trust.  I’m not an attorney or MBA or accountant – I’m just an architect, with a bachelor’s degree.  If I know this stuff, someone writing an article about it in the Wall Street Journal should know it better than I do, or should have done all the necessary research to verify its correctness, before going to print.
 
Liz O’Sullivan, Denver, Colorado

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More on the improper use of the word “architect”

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Below is some of what I posted on the Denver Post Online, regarding the improper use of the word “architect”:

People need to know that the Department of Regulatory Agencies of the State of Colorado has some statements about the legal use of the title “architect.”

From the DORA website http://www.dora.state.co.us/aes/licensing/licensure-arc.htm :

“The unlicensed practice of architecture and the improper use of the title ‘Architect’ or the word ‘Architect’ may constitute a violation of the Colorado Architect Law.”“Title 12, Article 25, Part 3 of the Colorado Revised Statutes (‘Architect Law’) creates the Board and grants it the authority to examine and license duly qualified applicants to practice architecture and use the title ‘Architect’ in Colorado.”

I believe that an education in architecture is a great background, one that translates easily into many fields of work.  But having a degree in architecture does not make someone an architect.  An architect’s training comes primarily from working under the direct supervision of a licensed architect.  That is why Colorado law (and the law in most other states) requires architecture school graduates to work under the direct supervision of a licensed architect for a certain number of years before being deemed eligible to take the licensing exam.  Only after passing the licensing exam and being registered in the State of Colorado is a person allowed to call himself an architect here. 

This is the reason that the media should not use the term “architect” as casually as it does.

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Improper use of the word “architect”

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The media is misusing the word “architect” again.  See the text of my Letter to the Editor of the Denver Post, below:

In the April 18, 2010 Denver Post article “Off the Grid,” the Post referred to Mr. Wayne Snider, the town manager of Fowler, as “architect of the project.”  Mr. Snider is not an architect.

Colorado law defines an architect as “a person licensed… and entitled thereby to conduct a practice of architecture in the state of Colorado.”  An architect is licensed by the State to perform the professional services of planning and design of buildings, preparation of construction contract documents including working drawings and specifications for the construction of buildings, and the observation of construction. 

The casual, improper use of the word “architect” dilutes the meaning of the word and misleads readers.  Please do not use the word “architect” to describe people who are not architects.

Liz O’Sullivan, AIA
Denver