Construction Contract Administration

Construction Contract Administration sorted by thread
 
  RE: Architect as Agent: QuestionsJul 20, 2013 4:33 PMJoseph Manganelli, Assoc. AIA
  RE:Architect as Agent: QuestionsJul 22, 2013 5:26 PMRand Soellner
  RE:Architect as Agent: QuestionsJul 22, 2013 8:05 PMJoseph Manganelli, Assoc. AIA
  RE:Architect as Agent: QuestionsJul 23, 2013 6:29 PMDennis Hall, FAIA
  RE:Architect as Agent: QuestionsJul 23, 2013 6:41 PMR. Scott Sandquist, AIA
  RE:Architect as Agent: QuestionsJul 22, 2013 8:04 PMMs. Kate Svoboda-Spanbock, ...
  RE:Architect as Agent: QuestionsJul 22, 2013 8:06 PMJoseph Manganelli, Assoc. AIA
  RE:Architect as Agent: QuestionsJul 24, 2013 8:27 AMMr. Sean Catherall, AIA
  RE:Architect as Agent: QuestionsJul 25, 2013 8:10 PMMs. Kate Svoboda-Spanbock, ...
  RE:Architect as Agent: QuestionsJul 23, 2013 10:11 AMFrederick Butters Esq., FAI...
  RE:Architect as Agent: QuestionsJul 23, 2013 10:33 PMJoseph Manganelli, Assoc. AIA
 

1.
RE: Architect as Agent: Questions
From: Joseph Manganelli, Assoc. AIA
To: Construction Contract Administration
Posted: Jul 20, 2013 4:33 PM
Subject: RE: Architect as Agent: Questions
Message:
This message has been cross posted to the following Discussion Forums: Project Delivery and Construction Contract Administration .
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Hi All,

I am trying to figure out what 'agent' means with respect to the architect's role, and I am posting here in the hope that you can offer references and guidance.

I've heard two different meaning but can only find documentation for one of them. First, the architect is an 'agent of the owner,' authorized to act on the owner's behalf.  Second, the architect is an 'agent of the people,' obligated to act in society's best interests. 

Architect as 'agent of the owner' meets standard legal definitions of 'agent' and is consistent with architect's role as defined in contract documents.

Architect as 'agent of the people' makes logical sense but I cannot find documentation for it.  Is this a real thing?  If yes, are there any references you can recommend?



The way it was explained to me is that licensed professionals act as agents of the people and are subject to legal liability that a vendor, such as a contractor, is not. 

For instance, the example I was given is, hypothetically, let's assume an owner wants a building that meets applicable codes and is technically and legally defined as 'safe.'  Let's assume this is a new project type or built with new systems or materials that are not yet adequately covered by the codes.  Let's assume that the architect, engineer (agents), and contractor (vendor) immediately recognize that something about the building design, if built as-drawn, will create an unsafe condition, either to occupants or the public at large.  They notify the owner of their concerns.  ------------------- OK, so my understanding is that at this point, if the vendor chooses to build the building, perhaps even formally documenting the advice to change the design and the owner's decision to build the unsafe design regardless, then the vendor cannot be held liable when injury, death, or destruction results from the unsafe building.  ------------------ Conversely, my understanding is that the architect or engineer, as 'agent of the people,' will still be liable if they agree to oversee design and construction of a building they know is unsafe, even if the owner formally documented his/her authorization to build despite the advise not to do so.  Is this true?

Beyond this, can 'agent of the people' result in liability for ugly, dysfunctional building that are safe and legal but are offensive in context or injurious to culture or business?  Let's say a developer builds adjacent to a historic district something that is legal and not in the district technically, but feels like it is in the district and with an aesthetic and uses so at odds with the aesthetic and uses in the historic district that the new development kills the vibe of the district and results in disrupting the cultural legacy of the place and putting the once-thriving historic district businesses out of business.  Is the architect as 'agent of the people' who agreed to design a development adjacent to a historic district that undermined the cultural legacy of the district and had a negative impact on the economy of the district liable in any way?

Thoughts and references are greatly appreciated.

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Joseph Manganelli Assoc. AIA
Graduate Student
Clemson University
Clemson SC
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2.
RE:Architect as Agent: Questions
From: Rand Soellner
To: Construction Contract Administration
Posted: Jul 22, 2013 5:26 PM
Subject: RE:Architect as Agent: Questions
Message:

Joseph, when you become a licensed Architect in any state within the USA, and you read the Architectural Practice Act of that State, you will see language there that talks about you upholding the Health, Safety & Welfare of the public.  That is probably what you are looking for as the legal terminology.
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Rand Soellner
Architect/Owner/Principal
Home Architects
Cashiers NC
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3.
RE:Architect as Agent: Questions
From: Joseph Manganelli, Assoc. AIA
To: Construction Contract Administration
Posted: Jul 22, 2013 8:05 PM
Subject: RE:Architect as Agent: Questions
Message:
Thanks, Rand....and to the person who emailed me.


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[J.][Manganelli]
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4.
RE:Architect as Agent: Questions
From: Dennis Hall, FAIA
To: Construction Contract Administration
Posted: Jul 23, 2013 6:29 PM
Subject: RE:Architect as Agent: Questions
Message:
I think you point out two complementary parts of the architect's duties. Quite simply, we have both expressed and implied duties. Expressed duties include those specifically identified in the Owner-Architect agreement and include the Architect as owner's agent; to act on behalf of the Owner, only to the extent identified in the Agreement. This type of duty is generally called "contractual obligations". There are other expressed duties of the Architect, but this is the basic one posed in the question.

Implied duties include a the duty to the public and are not a part of a contract, but are obligations that are implied by law, and their basis lies in fair and equable allocation of risk or legal principles used to resolve claims. This type of duty is generally called "standard of care" or in other words, "what the average would do in a similar situation".

As architects, we should understand our duty to our client and to the public. Third party claims against the architect or more common than breach of contract claims. 

Hope this helps.


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Dennis J. Hall, FAIA, FCSI
Chairman ' CEO
Hall Architects, Inc.
Charlotte NC
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5.
RE:Architect as Agent: Questions
From: R. Scott Sandquist, AIA
To: Construction Contract Administration
Posted: Jul 23, 2013 6:41 PM
Subject: RE:Architect as Agent: Questions
Message:

I suggest there may be a significant difference between "knowing" a building and/or proposed design is truly unsafe, versus perceiving or being of the opinion that a building and or proposed design is unsafe.  The contractor may perceive and or argue a design as unsafe, but does not have the design responsibility.  Ultimately, 1) the licensed professional, whether licensed architect or engineer hired to provide a safe design, or 2) public-sector authority having jurisdiction will probably be responsible for making such decision.  The public-sector will only make a decision however, but will never take such responsibility - the paid, private-sector licensed architect or engineer gets that responsibility. 
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R. Scott Sandquist AIA
Vice President
Sandquist Construction
Lincoln NE
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6.
RE:Architect as Agent: Questions
From: Ms. Kate Svoboda-Spanbock, AIA, CID
To: Construction Contract Administration
Posted: Jul 22, 2013 8:04 PM
Subject: RE:Architect as Agent: Questions
Message:
I am not sure about all the technicalities of agency, but, I cannot imagine a contractor being able to build something that (s)he knew to be unsafe with impunity, no matter who said it was all right.

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Kate Svoboda-Spanbock AIA, CID
Principal
HERE Design and Architecture
Los Angeles CA
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7.
RE:Architect as Agent: Questions
From: Joseph Manganelli, Assoc. AIA
To: Construction Contract Administration
Posted: Jul 22, 2013 8:06 PM
Subject: RE:Architect as Agent: Questions
Message:
Thanks, Kate.

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[J.][Manganelli]
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8.
RE:Architect as Agent: Questions
From: Mr. Sean Catherall, AIA
To: Construction Contract Administration
Posted: Jul 24, 2013 8:27 AM
Subject: RE:Architect as Agent: Questions
Message:
Kate, I believe the difference is that the professional standard of care to which architects are legally held generally requires us to know what is safe and what is not, while a contractor's professional standard of care may not.

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Sean Catherall AIA
Architect
Herriman UT
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9.
RE:Architect as Agent: Questions
From: Ms. Kate Svoboda-Spanbock, AIA, CID
To: Construction Contract Administration
Posted: Jul 25, 2013 8:10 PM
Subject: RE:Architect as Agent: Questions
Message:
Right, but, I think the situation was characterized as the contractor knowing that the condition was unsafe?

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Kate Svoboda-Spanbock AIA, CID
Principal
HERE Design and Architecture
Los Angeles CA
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10.
RE:Architect as Agent: Questions
From: Frederick Butters Esq., FAIA, Esq
To: Construction Contract Administration
Posted: Jul 23, 2013 10:11 AM
Subject: RE:Architect as Agent: Questions
Message:

The question presents on two levels . . .  one much simpler than the other.  The simpler level first;

 

As agent of the Owner, you are authorized to make decisions for the Owner for purposes of expediting the project.  When the contractor asks you for advice as to what should be done, you, as the agent of the Owner, are speaking as if you are the Owner.  The Contractor is entitled to take what you say and rely on it as if the Owner said it.  Bear that in mind when you administer contracts.

 

That is the easy example

 

The tougher example is your role as you put it "agent of the public".  As such, you are vested with the responsibility to make building design decisions that foster the health, safety and welfare of the building using public.  While those goals are generally concurrent, as you might imagine, there could be times when they are in conflict.

 

While it is true that the Architect shoulders a unique form of professional liability that the contractor does not, it isn't accurate to say that the contractor has no liability for faulty construction.  In your hypothetical, you suggest that the parties recognize that the ". . . . building design, if built as-drawn, will create an unsafe condition . . . .".  That by itself presents a problem.  If the building as designed would be unsafe, the Architect has some liability.  Given that it was discovered before construction, that liability may be limited to the cost of a re-design that does not suffer that malady, but the fact that the design itself would create an unsafe condition if constructed is a problem for the Architect.

 

You then suggest that the Contractor, despite that knowledge, decided to construct the work nevertheless.  Absent direction to do so from the Owner (or the Architect as agent of the Owner) that really can't happen - i.e.; the contractor can't simply construct the project on his or her own.  If on the other hand, the Contractor documents their concerns and the Owner or Architect directs them to proceed in disregard of those concerns, the Contractor may well have insulated himself or herself from any liability - because their only duty is created by the contract to construct the building, and that duty runs to the Owner alone.

 

In the converse, if the Architect observes the unsafe condition but does nothing to correct it, then the Architect likely has potential liability to the Owner (due to the contract with the Owner - and therefore for the same reasons as the Contractor), but also likely have liability due to the professional nature of the relationship as well.  In addition, the Architect would have liability to any third party injured by the unsafe condition due to the obligations imposed by the licensing statute - the "agent of the public" relationship as you describe it.

 

If the Owner elects to proceed knowing of the potentially unsafe condition, the Architect has a difficult choice to make as duties as agent of the Owner come into conflict with duties as agent of the public.  In that example, advising the Owner alone is not sufficient although many Architects believe it is.  I have had a number of clients over the years who argue they "got a letter" or some such from the Owner absolving them of any liability for questionable work.  That is fine relative to the Owner, but not the public.  The Owner can absolve the Architect of liability to the Owner, but the Owner cannot absolve the Architect of liability to the public.  In this instance, the Architect must advise the Owner not to proceed.  If the Owner refuses to heed that advice, then the Architect must consider disengaging from the project so as not to assist the Owner in the creation of an unsafe condition, but must also seriously consider advising the local building official of the concern.  To be sure, an Owner may not appreciate that, but given the duties to the public it is the necessary and proper course.

 

In reality, refusing to assist the Owner in the creation of an unsafe condition is a benefit to the Owner as well - although they may not see it as such.

 

Insofar as aesthetics are concerned, due to the extremely subjective nature of those factors, they aren't recognized in the legal sense.  While every Architect should strive to create aesthetically pleasing architecture, the question of what would upset a cultural or historical legacy as you suggest is far from settled.  While differences of opinion as to what might constitute aesthetically pleasing differ, no one intentionally builds "offensive".  Nothing as you describe would therefore get built unless there was a significant view to the effect that it was not in fact offensive.

 

The law has therefore not ventured into the quagmire that is "aesthetic expression" and because of the inability to extract a neutral principle to apply to those sorts of cases if it did (extraction and application of neutral principles being the hallmark of what the law terms "justice ability") I would predict it never will.

 

A duty in the abstract to create pleasing design? - yes.  Liability in the legal sense for creating an "ugly" or "offensive" design? - no.



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Frederick Butters FAIA, Esq.
Frederick F. Butters, PLLC
Southfield MI
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11.
RE:Architect as Agent: Questions
From: Joseph Manganelli, Assoc. AIA
To: Construction Contract Administration
Posted: Jul 23, 2013 10:33 PM
Subject: RE:Architect as Agent: Questions
Message:
Thank you, very much, Frederick!  Wow!  I really appreciate you taking the time to respond in such detail.

Joe

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[J.][Manganelli]
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