By Kevin J. Collins, RPLU, Associate AIA
Material transparency refers to an advocacy movement that promotes requiring manufacturers to fully disclose the material content and chemical makeup of building materials used in construction of the built environment in reference to a pre-determined list of substances which have been identified for potential harmful human health and environmental impacts.
Requiring materials transparency encourages product manufactures to divulge the contents of their products to allow for assessment of the potential lifecycle health and environmental impacts posed by the use of the products. Product content information is useful for making choices based on the impact of the product throughout its entire lifecycle. And with disclosure, many manufacturers are reconsidering their formulations, redirecting their supply chains, and creating less-hazardous alternative to their existing products.
Recognizing the movement and the professional response
The movement to promote the disclosure of the contents of building materials and the related potential health and environmental impacts has been growing as some clients express a concern that certain substances be eliminated from consideration for their projects. In addition USGBC’s current LEED rating system includes optional credits for collecting product environment and health information. Other rating systems and voluntary standards for the design and operations of buildings reference health product disclosures and other specific requirements. Thus for clients that care about such third-party validations, the existence of disclosure information becomes important.
The movement received additional support in 2014 when The American Institute of Architects approved a policy statement to address and encourage materials transparency. The AIA pronouncement states that the architect should be environmentally responsible and that, because building materials impact the environment and human health “before, during, and after their use,” knowledge of the lifecycle impacts of building materials “is integral to improving the craft, science, and art of architecture.” The AIA position on materials transparency is suggestive of several ways that architects are encouraged to respond to the ethical imperatives for materials transparency – the AIA code of Ethics and Professional Conduct includes an obligation that AIA member should be environmentally responsible and advocate for sustainable buildings.
While the advancement of professional ethics seems to be one goal of the AIA public policy, it also recognizes that the materials transparency movement represents an opportunity to give design firms a competitive advantage, tap their “thought leadership” and stimulate design innovation.
Addressing the service and risk through contract language
Absent specific contract language, the design firm’s involvement and reliance on the manufacturers’ disclosure documents will be judged in relation to the standard of care for the professional services performed. The question to be addressed is whether the actions and services of the design firm were consistent with what is generally accepted as being within their professional expertise and training. Design firms, of course, can negate the protection of the standard of care by contractually agreeing to provide a level of assessment that is not expected by the standard of care. The contractual obligation might extend to services the firms are incapable of providing.
The AIA Contract Documents program worked with a special AIA Materials Risk Taskforce and the Materials Knowledge Working Group to develop guidance or model language so that the duties of the architect are clearly articulated and, therefore, limited. That language is included in AIA B503, a document available on the AIA Contract Documents website. The program created model language to address the potential use of environmental and health product disclosure documents in providing architectural services.
The AIA Contract Document program’s suggestion is for increased communication and specific contract language to reduce the design firm’s potential liability associated with materials transparency. But while a carefully crafted professional services agreement can clarify the role of the design firm, it cannot, by itself, protect against third-party claims. And when health and environmental aspects of building products and materials become an increasingly important factor in the specification process, the likelihood of a third-party claims based on the increase duty increases.
Clearly communicating the services provided
It is important to minimize a firm’s business risk and to assist it in avoiding professional liability claims that a design firm’s contract states the reasons for seeking disclosure of product content information so that the firm, its client and any third-party attempting to place on the firm responsibility for specifying products the third-party might consider harmful have a clear understanding of the role of the design firm. In many situations where the design firm is only relying on stated manufacturer information, it makes sense for the firm to disclaim any responsibility for any detailed chemical or toxicological assessment of the product or material content information that impacts the actual environmental or health impacts of the materials or products.
Product content and composition is only one factor among many that a design professional considers before recommending to the client the use of a product, material, or system. Project owners have to be made aware of the considerations that go into the specification process. Design firms cannot – and should not – allow their clients to assume that a design professional is able to step into the role that is more appropriate for a properly credentialed professional such as a toxicologist, industrial hygienist, or health care professional in evaluating or verifying manufacturer-provided information on the environmental or human health aspects of a specific product. But with proper contract language and client communications, design firms can promote the evolution of safer products through the materials transparency disclosures without increasing their professional liability exposures or business risks.
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Kevin J. Collins, RPLU, Associate AIA, is a Senior Vice President with Victor O. Schinnerer & Company, Inc. and is a senior leader of the firm’s Construction Industry Group. He has been with the firm for over 26 years in many capacities including: claims management, underwriting and risk management.
Mr. Collins has more than 25 years of experience working with design firms and other construction-related professional service firms on issues of professional liability exposure and business risks. He has spoken extensively on challenges to the design profession and a wide array of practice management issues. Mr. Collins is a graduate of the College of William & Mary in Williamsburg, Virginia where he received a B.A. in Government. He is also a member of the society of Registered Professional Liability Underwriters.
Victor O. Schinnerer & Company, Inc. and CNA work with the AIA Trust to offer AIA members quality risk management coverage through the AIA Trust Professional Liability Insurance Program, Business Owners Program, and Cyber Liability Insurance to address the challenges that architects face today and in the future. Detailed information about both these programs may be found on the AIA Trust website.
(Return to the cover of the 2017 PM Digest: Greening your practice)