ConstructionPro Week, Volume: 5 - Issue: 25 - 06/24/2016

How Does an Architect “Reject” Nonconforming Work?

By Bruce Jervis

 

The standard contract documents published by the American Institute of Architects gives an architect the duty to protect its project owner by rejecting nonconforming work. Yet, the AIA documents disclaim architect responsibility for the contractor’s work. This creates a dilemma.

 

An Indiana court recently refused to allow an architect to hide behind the disclaimer in the face of allegations that the architect was aware of nonconforming work but took no action to force correction. If the exculpatory clause was interpreted that way, the duty to reject nonconforming work would be meaningless.

 

The Indiana court acknowledged there was uncertainty regarding the meaning of the term “reject.” If the architect has no authority over the contractor’s means or methods of construction, and is not responsible for the contractor’s work product, how can the architect force correction?

 

The court speculated that the refusal to certify work for payment might be the most effective way to mandate corrective work. Are there other tools for rejecting nonconforming work in a manner that forces corrective action? Your comments are welcomed.

 

COMMENTS

It seems the "rejecting" and "forcing correction" are being used interchangeably - and they aren't necessarily the same. I haven't read the AIA documents in a while, but since the architect has no contractual relationship with the contractor, he can't "make" the contractor perform any work - even if it is a correction. In my experience, the architect writes a field report noting the non-conforming issue. Once he publishes the report, he has fulfilled his duty to reject the work. Then the owner can get involved and not pay or take whatever other measures required to make the contractor correct the work - if it comes to that.
Posted by: M Repka - Friday, June 24, 2016 11:10 AM


Wow!!… The Indiana court is absolutely wrong in this case. The architect does not have any power over the contractor’s means and methods. As architects we design a structure to meet current building code, zoning regulations and life safety guidelines. How can we possibly oversee the entire construction process of a contractor and make sure that the construction documents that are produced our office meets said requirements. If that was the case we would be the architect, the contractor and construction manager. As noted in most contracts the agreement is between the owner and the architect not the contractor. The Indiana court clearly does not understand the dynamics of the architecture and construction industry. We cannot and should not be held responsible for erroneous and nonconforming work that is done by the contractor, because we DO NOT control the job site and we clearly do not control the contractor workers. BAD, BAD decision by the Indians court… simply horrible!
Posted by: OSelkridge - Friday, June 24, 2016 3:25 PM


The architect's responsibility is to the owner regardless of a contractual relationship with the contractor. I have not read AIA architect-owner agreements, but as a general contractor I process many AIA G702 - Application and Certificate for Payment. Under "Architect's Certificate for Payment" the architect certifies that progress and quality are in accordance with the contract documents. I'm sure that is not the only place the architect's responsibilities are spelled out.
Posted by: Jim W., Omaha, NE - Friday, June 24, 2016 5:57 PM


The misunderstanding of the architect's role is fundamental. The architects and engineers create a detailed design through drawings and specifications. The "means and methods" of accomplishing that deign are the responsibility of the contractor. Architects are also responsible for periodic and final inspection of the work. These inspections are limited to what is readily observable, but often supplemented by independent test reports such as concrete and compaction. The architect can only reject that work which observably, or by test, doesn't conform with the documents.

This doesn't speak in any way to means and methods, only results. There is no dilemma.

Eden Milroy, Pilot Development Partners, inc.
Posted by: Eden Milroy - Friday, June 24, 2016 11:58 PM


1. "...architect the duty to protect its project owner..."

2. "...disclaim architect responsibility for the contractor’s work."

Discussion:

Two very different settings, wherein the first obligates the architect to the Owner. The second partitions the Architect from obligation to the Work. Without further qualification, they stand together and without dispute.

1. Obligation to the Owner should act to observe, report and advise within one's expertise and to the Owner for the Owners sole discretion and action. Wherein the AIA document may offer a layering of obligation with terms such as "rejecting Work," this emits a responsibility, otherwise unintended b the agreement.

2. Rejection of the work should be the exclusive act of the Owner with all due process follow-up in the same hand. Wherein the agreement places Owner representation in the hand of the Architect ("rejecting nonconforming work.") this is where it get's sticky.

Perhaps a re-review of the articles of agreement are in order by AIA legal to disseminate any reversal obligatory statements of this nature. It is sticky from the outset. KeMArchitect
Posted by: Kenneth E. Martin AIA CSI - Saturday, June 25, 2016 12:46 PM


When the Architect reject any part of the works for its non-conformance, then it is the Archetict duty to follow up and hold payment on such part of the works until a correction action is taken by the Contractor which bring such part of the works to the required conformance to the Contract Documents.
Posted by: Wael Ghadban - Thursday, June 30, 2016 9:26 AM


 









WPL
PUBLISHING CO, INC.
WPL Publishing - 5750 Bou Avenue #1712 - Rockville, MD 20852

Phone: (301)765-9525  -  Fax: (301)983-4367

All Content and Design Copyright © 2021 WPL Publishing
About Us

Contact Us

Privacy Policy

My Account