Vol. 7 No. 6		June 1988

Standard contract documents serve important purposes. They reflect widespread consensus on significant issues of risk and responsibility. They contain language which has been tested in the courts. They reduce an extremely complex series of relationships and interactions to manageable proportions. And they can be used, nearly intact, on projects with a traditional structure and few complications.

But, for architects and engineers practicing in more diverse legal and professional environments, changes are more likely to be required than not. Therein lies the danger, for unless those changes are carefully integrated into the standard documents, they can easily introduce ambiguities and create unintended responsibilities. You can avoid this potentially costly result, but the need for the assistance of your attorney in doing so may be more pressing than you might realize.

The problem stems from the very complexity the documents are intended to address. Each is a finely tuned legal instrument. Changes to one section may require refinements elsewhere in the same form. Moreover, most of the documents are intended for use in conjunction with others. Where this is so, the language is meticulously coordinated, and changes introduced into one to accommodate unique requirements and understandings may well have to be reflected in the others with equal care.

Some understandings can be easily recorded. Others, including most of the specialized project delivery systems which have been introduced over the past decade, require extensive modification of the language and even the structure of the standard forms. Consider, for example, the impact of the following deviations from the traditional approach to design and construction:

1. Projects involving a construction manager. Adequate additional fees to cover your increased costs are of vital importance, but they are not the only issue. Your agreement needs to reflect a clear understanding of how your role and responsibilities are, of necessity, changed by the intervention of yet another player in the construction arena, and the construction contract needs to reflect that understanding, as well. Otherwise, you are likely to find yourself sharing responsibility for the performance of services over which you have little influence and no control.

2. Design-build mechanical systems. If the owner elects, for whatever reason, to place a major portion of your design responsibility into someone else's hands, your contractual obligations simply have to be redefined. A clear distinction needs to be drawn wherever there is a likelihood that your services will be affected by interaction with the designbuild contractor. Not only are there limits on your ability to coordinate the design of the building operating systems, but most of the services you would otherwise routinely perform during the construction phase will be different as respects the design-build portion of the work. These differences need to be carefully articulated to reflect a reasonable reallocation of risk and responsibility.

3. Fast track projects. Interest rates are not as astronomically high as they were in the early 1980's, but the fallout has left many owners with the notion that great sums are to be saved, nevertheless, by accelerating the design and construction process. The problem is, few owners are as quick to acknowledge the additional costs they are likely to incur in pursuit of those savings. There will be design changes and change orders as work in place has to be modified to accommodate decisions that could not possibly have been anticipated in advance. There will be resulting delays. Unless you insist on addressing these issues, throughout your agreement and throughout the general conditions of the construction contract, your client is likely to harbor expectations about your responsibility for errors and omissions that you cannot possibly meet. There are important fee considerations to be addressed, as well.

4. Value engineering. What was originally conceived as a means of assisting owners in the evaluation of design alternatives based on life-cycle cost considerations seems to have evolved into something very different. Today, many who offer independent "value engineering" services use that term to describe what amounts to the lowest common denominator of those services-a review of your design to identify cheaper alternatives. The focus is less on life-cycle costs than it is on tomorrow's construction budget. Where does this leave you? At a minimum, it leaves you with a need to redefine your role (and the limitations on your responsibility) as respects decisions made by the owner on the basis of "value engineering" input from others. You also need to develop a clear understanding as to the extent of your obligation to redesign to accommodate those decisions.

5. Multiple primes. As a means of seeking relief from skyrocketing professional liability insurance premiums, some architects and engineers have begun to urge their clients to hire and pay subconsultants directly. Subconsultants seldom object to this practice, because it means that they just may get paid more promptly, and it gives them a direct line of communication with the owner. But it raises serious questions of communications, coordination, and control. Insurers are casting a wary eye on this trend, for it is beginning to create dislocations in their traditional rating structures, and there is concern about its eventual impact on claims experience. In the meantime, the use of multiple primes continues to spread, and it requires significant changes in the standard forms. The question is, "Who is going to be responsible for what and to whom?"

For those who undertake services which fall outside the traditionally structured project delivery system, the standard documents might best be viewed as a reasonable point of departure, a framework within which a meeting of the minds can be reached which is appropriate to the unique conditions and circumstances surrounding the project at hand. Major modifications are likely to be required, and making those modifications can pose a formidable legal challenge.

The clarifications and protections you need may affect standard provisions throughout your agreement with the owner, and the need for consistency may dictate equally sweeping changes in both your agreements with your consultants and the general conditions of the construction contract. These documents interact in highly complex ways, and conflicts among them can lead to serious misunderstandings. Seek the advice of your attorney. It is the very best resource you have to enhance the possibility that the documents will serve what, after all, is their principal purpose-a successful outcome for each of the project participants.