Vol. 7 No. 4		April 1988

Would you sign an agreement which obligated you to provide services you were not capable of performing? You just might; if sufficient resources were available to retain qualified consultants, if the services of those consultants were essential for you to meet the owner's program requirements, and if you were convinced that the inherent risks were manageable.

But would you agree to provide services you were in no position to deliver under any circumstances? Probably not, at least not knowingly. Therein lies the problem, for in the interests of harmony, goodwill, and getting on with the job, it is far easier to assume unintended obligations than you might think. The current debate within the professions over responsibility and responsibility avoidance notwithstanding, there are some accommodations you are simply not in a position to make. Consider the following:

The language seems innocuous enough. It is buried on Page 27 of a 39 page agreement: "The Architect/Engineer shall assemble, review, approve, and submit to the Owner all guarantees and warranties required to be furnished by the General Contractor under the Construction Contract. "

Review and approve them for what? In reality, you can do little more than count and collate. Manufacturers' warranties are legal instruments, and their review requires professional expertise you do not have and the delivery of a professional service in which your involvement is both inappropriate and uninsurable.

Why, then, would the owner's attorney draft such a requirement in the first place? It might be out of a naive lack of understanding of your role in construction, but coming from a law school graduate selected from the top 5 percent of his or her undergraduate class, this is unlikely. The most probable answer is, "Why not?" Given an opportunity to place one more potential source for recovery in the line of fire, why not jump at that opportunity?

The cynical expectation is that alert architects and engineers will reject the requirement in any event. Your best option is to do so. Your reasons are unassailable, and the owner's attorney knows this.

Overreaching may well be an irresistible negotiating tactic. Here is another familiar example: "The Architect/Engineer shall obtain an permits and approvals necessary from governmental authorities having jurisdiction over the project. " This, too, seems innocuous enough at first glance. You are accustomed to assisting your clients through the permit process. Your ability to do so is part of the added value you bring to the project, and your client has every reasonable right to look to you for help. What, then, is wrong with what appears to be little more than a modest accommodation? Ask yourself this question: "What happens if I fail?" Forget for a moment that the circumstances may be beyond your control; it may not be relevant. What if a permit were refused? What if an approval you had no way of knowing would be required was not forthcoming; acceptance of an environmental impact report ordered as a result of an unexpected political challenge, for example? You just might become a defendant in an unnecessary law suit.

Permits and approvals are the owner's responsibility. You can influence the process, but you cannot control the outcome. It makes no sense at all for you to assume the risk of being unable to do so.

"The Architect/Engineer shall cooperate with the Owner's lender in every respect." Who among us can reasonably argue against being cooperative? You can, for this obligation is likely to be interpreted to mean that you will cheerfully sign whatever document the owner's lender may choose to place before you at some future point in time; never mind what that document might contain.

Attorneys for lenders are as aggressive as those who represent owners in seeking ways to place others in the line of fire. You can expect them to demand your guarantees that the project was designed in strict compliance with laws, codes, and regulations and that it was constructed in strict accordance with your design. These are assumptions of liability you simply cannot insure. Those same attorneys are also likely to demand your consent to the owner's assignment of rights in your plans and specifications; under terms and conditions you are not likely to be willing to accept.

Resist this provision. If you are unsuccessful in deleting it in its entirety, you might seek to restrict it to those requirements of the owner's lender which are "both reasonable and consistent with the Common Law standard of usual and customary professional care. " The Common Law does not require you to guarantee anything. It only requires that you not be negligent.

You do not have to sign a contract to assume unintended responsibilities. Picture this: Time is drawing short, the bid package is due, and the owner has not responded to your repeated requests for instructions on insurance and bonds. Someone on your staff digs out a set of insurance specifications used on a similar project in the past and suggests, "Why not use these for now?" Why not, indeed? You can always pick up the pieces and make adjustments later.

The problem is, this might not happen. If not, you may find that you have become the owner's insurance advisor. In the event an uninsured loss were to ensue, you could also find yourself liable for the consequences.

Your agreement may be very clear on this point. It is the owner's responsibility to obtain the legal and insurance advice necessary for the project. But you can change your agreement through your actions, and if you behave in such a way as to cause twelve good citizens to believe that those actions created a reasonable right to rely on your performance, you are likely to be held responsible for the results. You are also likely to discover that legal and insurance services are excluded from coverage under your professional liability insurance policy.

Resist the temptation to solve a problem that is not yours. Send yet another letter reminding the owner that the bidding process may have to be delayed unless you promptly receive the instructions you need.

If attorneys experienced in defending architects and engineers against claims of professional liability were asked to suggest one measure that might do more than anything else to reduce claims and control losses, they would respond with a nearly unanimous voice: "Negotiate your contract carefully, know what it means, and adhere to its terms and conditions. " This is sound advice. Heed it, and you will go a long way toward avoiding responsibilities you never intended toassume in the first place.