The role of an “owner’s representative” on a construction project varies according to the scope and nature of the work as well as the resources of the project owner. The role may be limited to basic administrative functions or involve sophisticated inspection and testing for compliance with technical specifications. The agreement between the owner and representative defines the responsibilities of the rep, but when the owner elects to retain a licensed design professional to serve as the owner’s representative, are all the rep’s services viewed as professional?
A Texas appeals court recently answered this question in the negative. An owner’s rep agreement can be hybrid, calling for both professional and non-professional services. And, the provision for non-professional services will not be viewed through the same lens as the provision for professional services, regardless of the licensing status of the representative.
The other case in this issue involved a subcontractor’s agreement to pass any claims up the contractual chain for resolution by the prime contractor and project owner. In so doing, the sub inadvertently waived its rights against the public works payment bond.