Designs with a professional service contract are obligated to deliver the quality of service prescribed in the contract. If that contract calls for 6 sigma quality protocols, (i.e., near perfection) then the designer should apply a quality control system to prevent errors and ommissions. Clients should be prepared to compensate the designer for such. Seems to me, most clients fail to prescribe contractual quality standards and rely instead on the standard of care associated with tort law of negligence. Time to up the quality standards for design.
Posted by: Peter Adams - Friday, April 11, 2014 9:16 AM
Based on what has been presented here; the architect and government had a different interpretation of the code. In that the government was the author of the code that was in dispute, it appears that the architect was compelled to except the owner's interpretation.
The jury seems to have ruled logically in favor of the designer. However, the law is not always applied logically.
This dispute could've been avoided if the parties had requested an interpretation from the code enforcement agency prior to completing the design.
Posted by: R. Gary Klein - Friday, April 11, 2014 10:16 AM
Please cite the case and the appeal. This is a very interesting issue and I would like to study it in a little more detail.
Posted by: Peter Kraemer - Friday, April 11, 2014 11:25 AM
I am glad to see designer/specifier standard of performance being questioned. As an industry we spend way too much money quoting jobs that are designed way beyond the client budget or like in this case designed to fail basic code requirement. I do not get paid for providing product or services that my clients cannot use. Why should an architect be paid for designing a structure that a client cannot afford or will not pass plan check? Too much waste and inefficiency.
Posted by: Rudi Lokkart - Friday, April 11, 2014 11:27 AM
This article does not state the specific nature of the miscommunications, disagreement, the changes required or the cost of them, so commenting on this case could only be done in a vacuum. My experience has been that codes can be subject to interpretation, and I have in the past gotten different interpretations from the state than were being enforced by local authorities. Given this fact alone it is obvious that the design professional cannot always be absolutely sure that what he is doing is in compliance with the code even when verifying it with the building official. Especially in situation such as this where the owner is the rule maker, the rule interpreter, the rule changer, and is under pressure to keep costs down, the designer could be in a no-win position should the any individual in any such bureaucratic authority decide that his life should be made difficult for any reason. There is a reasonable standard of care, but it must be just that, reasonable.
Posted by: Ross Ritchie - Friday, April 11, 2014 11:28 AM
The issuance of a building permit should be the final declaration that the Architect has completed his due diligence responsibility for Code compliance.
Posted by: Jim Anderson - Friday, April 11, 2014 11:43 AM
Unfortunately the Architect accepted a contract that contained language which obligated them BEYOND a reasonable standard of care. The phrase "and in compliance with ANY and ALL applicable codes, laws and ordinances” should have been a red flag. If you are unable to get the Owner to agree to remove this language, they you have a business decision to make on the risk associated with the language in the contract.
Posted by: Mike Heule - Friday, April 11, 2014 11:49 AM
I have found that my professional liability insurer is a great help in convincing a prospective client (usually a government entity) that not only is this clause unreasonably onerous but also uninsurable
beyond the usual standard of due care. This clause can often be accompanied by a client's requiring a hold harmless clause which is even more unreasonable.
Also I have had a building inspector refuse to issue an occupancy permit because he wanted an addition to the construction that was beyond code requirements, and the building official generally backs up its inspector.
Posted by: William Leatherbee AIA - Friday, April 11, 2014 12:34 PM
We've had building department plan check approved drawings where the field inspector says "We don't care what plan check said, we're not going to allow it." What do you do then?
Posted by: Harvey Irby PE - Friday, April 11, 2014 12:39 PM
The field inspector is being arbitrary and capricious (speaking as an architect not a lawyer) and the only remedy I can think of is to take the issue over the field inspector's head and on up to the highest authority possible. But this takes time and the client should pay for that time. A clause to that effect should be added to the agreement with the (next?) client.
Posted by: William Leatherbee AIA - Friday, April 11, 2014 1:14 PM
Perfection is a goal universally understood to be unreachable. It is true that the professionally licensed designer should be held to a very high standard, if for no other reason than that the standard itself is typically experessed in the building and accessibility codes as a minimum. However, the public does not trust even architects to properly interpret the code language, which can be a bit arcane, and appoints a priesthood of officials charged with administering the word. There is no higher court to appeal to prior to a tort, and from my experience, the priesthood is not infallible. Additionally, codes are not "how-to" manuals for design, the integration of relevant variables into a functional, safe, and aesthetically pleasing whole. Most building officials cannot likely design their way out of a paper bag, and need not be able to, but their standing, expressed in the codes themselves, allow them some room for eisegesis, an alternative insight which satisfies the intent of the code and is based upon their expertise. Hence, it does not benefit the designer to subscribe to contractual language holding himself/herself to a higher standard than the entire system of codes and their priesthood can guarantee in an imperfect world. Professional designers may be agents of the code, but are not its clergy.
Posted by: Gary R. Collins, AIA - Friday, April 11, 2014 2:23 PM
The idea of designing to meet ALL codes is fallible for many reasons:
-It implies a perfection standard. Designers are human and not infallible.
-Codes are subject to interpretation and are often written ambiguously to satisfy the conflicting interpretations of those voting to adopt them in order to obtain a consensus.
-Codes often have conflicting provisions. It may be impossible to conform to all codes.
-There are a multitude of codes and standards in the US. Many of them do not apply to a given project. It is the designers role to exercise their judgment to determine which ones apply. The owner is likely not willing to pay for a design that meets ALL codes and standards.
-As Mr. Leatherbee stated, this type of contract language is uninsurable.
I think I will stop with those reasons, that should be enough.
Posted by: Andrew Rauch, P.E. - Friday, April 11, 2014 3:28 PM
As an owner's representative, I constantly ask the design professionals to have preliminary meetings with all code officials, usually as part of design development, but too many resist. Most code officials look forward to resolve their concerns early in the process, making it easier for them if the plans are code compliant when they perform their formal permit application reviews. Pick up the phone and schedule a meeting!
Posted by: Stuart I Seidman AIA - Friday, April 11, 2014 11:25 PM
In Illinois architects by state law are required to put the following statement on our cover drawings. Had this architect had similar language it would had better clarified intent:
I HEREBY CERTIFY THAT THESE DOCUMENTS WERE PREPARED BY ME OR UNDER MY DIRECTION, AND THAT TO THE BEST OF MY KNOWLEDGE, THEY COMPLY TO ALL APPLICABLE CODES AND REGULATIONS
It does not assure perfection, as it shouldn't.
Posted by: Timothy C. Berneche, NCARB - Saturday, April 12, 2014 12:31 AM
Thre was a request for the citation to the court opinion. It is provided below. Also, there was a question regarding reliance on the verbal approval of a municipal field inspector. One should rely only on written approval from the appropriate authority.
School Board of Broward County v. Pierce Goodwin Alexander & Linville
Court of Appeal of Florida
No. 4D11-4808 (March 19, 2014)
Posted by: Bruce Jervis, Editor - Sunday, April 13, 2014 11:14 AM
