Caveats: I am not going to offer legal advice - for legal advice see your attorney. My comments below are based on 'common' contract formats (i.e. AIA), and on practices in jurisdictions known to me after 45 years in the industry and 25+ of those as an expert witness dealing with design and construction disputes. At risk of repeating some of what has already been posted, here are some 'top ten' thoughts (which could easily be expanded):
1. Just say 'no'.
2. Nobody can 'certify' something about which they do not have first hand knowledge. Unless you were on site 24/7 and had eyes on every piece of work installed by the contractor you cannot 'certify' that the Work is error-free and in complete conformance with the Contract Documents and applicable codes/laws.
3. If you performed 'observation' as part of your contract administration duties then you can issue a statement that something installed is 'to the best of your knowledge' conformant to the construction contract, and nothing more. Designers who issue any kind of certificate at project completion that goes beyond personal knowledge is erring.
4. The only party that can create and issue 'as-built' drawings/specs is the contractor, based on its first-hand knowledge of what was installed. On 'substantial' projects - and depending on the jurisdiction all school, hospital and government projects - the contractor is obliged under the contract to continuously mark up the Construction Documents during the Work to depict what was actually installed (which may vary from the original CD's). Those documents are prepared by the builder for the use of the Owner (and sometimes the AHJ). They are not for the designer, and the designer's role is only to pass along the 'as-built' mark-ups to the Owner upon completion. The designer is not obligated to check/verify the accuracy of the 'as-built' documents (and this would not be possible unless the designer had first hand knowledge of every nut and bolt).
5. The duty of the designer is to issue Construction Documents, and to perform 'observations' (if that is part of the design contract), for 'general conformance to the intent of the CD's' (the typical 'form' contract limitation). The designer is not obligated to ensure the work as installed conforms 100% to the CD's (which includes by reference all applicable codes/laws), issued after review/approval by the Authority Having Jurisdiction. The obligation to conform to the CD's (as well as all known codes/laws) rests with the builder. The builder is presumed to have knowledge superior to the designer with respect to most technical code requirements of individual trades, and is required by contract to bring to the designer's attention anything in the CD's that appears to be in error or not code conformant - prior to installing the Work, so that the error/omission in the CD's can be corrected. The contractor is also obligated to affirmatively inform the designer and owner of any Work that has been installed that does not conform to the CD's.
6. The laws applicable to 'conformance' of CD's to the codes, as well as those applying to construction itself, recognize that 'perfection' is not the standard expected of either the designer or contractor. Design and Construction, both human endeavors, can (and usually do) inherently contain some errors. Even a 'certification' issued by the contractor that installed the work, must be taken in that context - likely there has never been a 'perfect' project (and certainly none I have come across). Even the contractor's certification, if it is issued, does not 'prove' the Work is correct - or prevent a lawsuit if digressions cause damage to the owner or users.
7. The contractor was obligated to install the work consistent with the Construction Documents (which includes plans and specs among other things). You stated you are aware of things not conformant, which begs the obvious question 'what else is not conformant'? If the contractor now came to you and said 'now everything is OK', on what basis would this be credible?
8. It is entirely likely your Professional Liability insurance would not cover your liability if you issue a 'certification' without having the first hand knowledge upon which to base it. You should (as others have noted) contact your carrier (not just your broker) to obtain further information on that front.
9. The contractor/client that is 'demanding' you comply with their need for 'as-builts' is (to be kind) misrepresenting to you that there is little liability if you do what they ask. It is accurate that a lawsuit under ADA can only be brought against the owner. However, the owner can, in turn, sue the contractor and the designer for the damages flowing from the original complaint. Liability under the ADA for even the most minor digression from unbending criteria can far exceed your profits, your entire fee, and even your insurance (depending on the size of the project and the real and collateral/economic damages suffered by an Owner for non-compliance and remediation). As an example only, I handled a case where a seemingly unimportant (and not carefully considered) small 'cut and pasted' note about the size of a credit card in the CD's was incorrect, and ultimately led to damages in excess of $40 Million (with a capital M) in damages. An ADA-specific case illustrating what can happen even when the designer warned the Owner not to do something because it 'might' be wrong, can be Googled - see Mandalay Las Vegas.
9. Unless there was something in your contract that obligates you to perform the services being requested, you should simply decline. There is no 'law' that requires you to certify the work of contractors. If you did include something in your contract that obligates you to do this, you should seek advice from an attorney in your jurisdiction that specializes in construction law (not a generalist).
10. When all other ideas have been exhausted, SEE item 1, above.
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Howard I. Littman, AIA, Emeritus
Forensic Architect, Expert Witness
Agoura Hills, CA
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Original Message:
Sent: 05-18-2018 20:54
From: Alan Burcope
Subject: Architects asked to produce and certify as-built drawings
Offer do do a set of "survey" drawings, not "as built" drawings, as an additional service and under a separate contract. Do not, anywhere in your contract or survey documents use the term "as built." Submit them to the client, and if they wish to submit them to the Authorities Having Jurisdiction, as representative of what THEY contracted to construct, well, that is their own business.
Alan Burcope, AIA
Sent from my iPhone
Original Message------
We were asked to design an ADA upgrade for a large affordable housing complex. The project was funded by the state, so a state agency reviewed and approved the design before it was submitted for building permit review.
The construction was done by a different division of the same company that owns and manages the housing complex.
The contractors/owners have asked us to provide "As-Built Plans and Specs certified by the architect as a part of the place in service package, which shows the "State housing finance and development corp" that we have done everything we proposed under our application to them. They will provide the 8609's and regulatory agreement once they sign off on our package".
We visited the site and discovered significant discrepancies between the approved design, and what was actually built. We slammed on the brakes, and have asked for full compliance with the design before producing as-built drawings.
Our team includes civil and MEP engineering.
- Does the architect stamp and certify all drawings, with written approval of the consultants, or must each consultant produce their own as-built drawings?
- Besides "AS-BUILT DRAWING", what verbiage should be included in the stamp?
The owners/managers/contractors are chafing at the delay, saying to "just do it", because there's almost no liability.
Thoughts?
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Dennis Glynn AIA
Dennis Glynn Architects, Inc.
Bellevue WA
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