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The Construction Contract Administration Knowledge Community (CCA) has been established to help our members better understand the issues, actions and resultant impact of the decisions required in this often neglected part of Project Delivery. It is our goal to provide clear answers to issues of concern to the Institute’s membership and share case studies and best practices. We further hope to provide guidance and direction in developing guidelines for new and evolving approaches to Project Delivery as well as guidance in the continuing education of our emerging young professionals.

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GC Errors and Omissions Responsibilities

  • 1.  GC Errors and Omissions Responsibilities

    Posted 01-30-2020 09:19 AM
    I designed a building for a client who hired a design-build firm to act as the GC. This D-B firm touts themselves as experts in the project type of the building I designed.

    During bidding and pre-construction the GC reviewed our CD's and had a few recommendations to revise the design. The revisions related to design details and not the building design and plan. One of the revisions was based on the GC's storefront subcontractor's questioning of storefront details. We modified the storefront design based on the GC's input.

    During construction the GC made a new request for a change order to part of the storefront system because the GC claimed that the structure above was insufficient to support the storefront system. The GC asked for a change order.

    I reviewed the structural engineer's design and it appears that the Structural engineer did not provide enough structure.

    My questions for the Group:

    The AIA GC agreement has a clause regarding the GC's responsibility to identify potential issues with the CD's. Since this GC identified themselves as experts in the design type, and they are a D-B firm, does the GC share any responsibility for change orders as a result of a GC initiated change?

    The GC's subcontractor requested a change to the storefront design before construction,and those changes were made by the Architect. During construction a new request was made to the storefront design that required a change order. Does the GC bear any responsibility for the change order since the storefront subcontractor did not review the entire storefront design during pre-construction?

    John Parnon AIA
    BrandPoint Design LLC
    Brookfield WI
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  • 2.  RE: GC Errors and Omissions Responsibilities

    Posted 01-31-2020 07:57 PM
    Bearing in mind that I am not an attorney, but an architect, I nevertheless have testified as an expert in a large number of cases involving design liability.

    The architect is responsible for the design, and for the adequacy of the design. If a design change is requested by the GC, the architect can make the change, but is responsible for making sure that the design change works properly with the rest of the design. If the design change requires greater structural support, it is the architect's responsibility to see to it that his structural engineer reviews the ramifications of the design change and provides whatever additional support is needed. If his engineer does not, the architect retains responsibility, but can then go after the engineer for whatever the architect has to pay as a result.

    I have seen a lot of cases in which the architect did not follow through adequately on design changes that developed during construction, with sometimes disastrous consequences.

    In my opinion, the GC is generally asked to make suggestions/requests for design changes to facilitate the project -- but the design remains the architect's responsibility. This is true even when the architect is part of a design/build consortium.

    William Wheatley AIA
    Wheatley Us Limited
    Bala Cynwyd PA

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  • 3.  RE: GC Errors and Omissions Responsibilities

    Posted 02-01-2020 09:31 PM
    Even though this is a Design Build company, it seems they are acting as GC only, and did not provide design services which remained under your responsibility. The fact that they have experience as designers does not automatically mean they assume responsibility for all design-build aspects.
    If you are still the architect, and the GC is proposing changes to improve the project, you still have the power to reject or approve, and the changes are provided by your firm, and thus all related coordination or sub-consultant updates stays within your liability.

    Ayman Arafa AIA
    Director of Architecture
    Ryan A+E, Inc.
    Plymouth MN

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  • 4.  RE: GC Errors and Omissions Responsibilities

    Posted 02-02-2020 01:43 PM
    Edited by Frederick F. Butters Esq 02-02-2020 01:44 PM
    While it would appear that the question really should be directed to legal counsel familiar with the law in your state there are some general principles. Understand this commentary is intended as general information and may not be considered legal advice;

    Start first that the term "errors and omissions" is a misnomer. In reality the A/E professional liability insurance is malpractice insurance like that available to any other profession. It covers inadvertent failure to comply with the standard of care. In actual practice that means it will usually cover the cost to correct errors and almost never cover the cost (at least not the full cost) of omissions. The use of that term is unfortunate in that it implies something it isn't. It also implies that the Architect is in some manner responsible for change orders to correct omissions, when in reality the damage for which the Architect is liable for omissions is far more restricted than many Owners believe

    Beyond that, the AIA documents have many clauses that may not be given the legal effect one might generally expect. That said, the Architect has the non-delegable duty to render serves that comply with the standard of care, and that will be true irrespective of what any contract ever says. While a contract clause concerning the GC's responsibility may add additional duties it is doubtful that clause will limit the Architect's duty. Said another way while it may make the GC liable as well as the Architect it won't excuse the Architect (there would also be a legitimate question as to whether the GC signed and a contract containing that sort of clause and whether it was obligated by that sort of a clause to any degree at all).

    The Architect in this example was obligated to consider and address the initial proposed change in a manner consistent with Owner's best interests and the prevailing standard of care. We have to presume the Architect did that and concluded the initial change was warranted against those standards or that initial change would not have been permitted. Once that change was permitted, the Architect had the duty to review and revise the documents to fully accommodate it. It sounds from the description as if the Structural Engineer (presumably the Architect's consultant) didn't properly complete that task; thereby creating what one could argue is an omission. While the GC may arguably have some liability (and that would be tough case to make), it would be secondary to and would not reduce the Architect's primary liability

    Not to be facetious but it sounds like "look what you made me do"

    That said, the liability associated with an omission isn't the cost of adding the omitted items, it is the incremental costs (if any) associated with adding those omitted items at a late stage in the process as opposed to adding them initially. The compensable damage will be only a small fraction of the cost.

    I doubt that is the answer sought but it does appear to be the answer. The Architect by virtue of his or her status as Architect has a duty that cannot be delegated or transferred. But then again so does every other licensed professional

    Frederick F. Butters, Esq.

    Frederick Butters, Esq.
    Attorney at Law
    Frederick F. Butters, PLLC
    Southfield Michigan

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