Vol. 8 No. 5		May 1989

There is something new under the sun. With increasing frequency, contract provisions are appearing in owner-drafted forms which 1) require you to have written quality control standards and procedures in place, and 2) assure the owner that you will strictly adhere to those standards and procedures in the performance of your services. This latter requirement is one you cannot reasonably agree to meet.

There is an unsettling symmetry between this relatively new notion and the current national debate over the appropriateness and purpose of ASCE's draft quality control manual, Quality in the Constructed Project.(fn1) The ASCE draft sets forth in meticulous detail the responsibilities of each of the major participants in construction at each stage of the design and construction process. It prescribes, in equally meticulous detail, the steps to be taken by engineers (and, presumably, architects) to control the quality of the end result.

Proponents of the manual concede that its use will increase project costs. They argue that owners will simply have to be prepared to pay those increased costs in the interest of public safety. They point to the disaster at the Kansas City Hyatt as a chilling example of the need to address this overriding and compelling public concern.

Those who have expressed reservations about the manual and its intended use do not dispute the obligation the professions have to protect the public health, safety, and welfare. They recognize that the duty to keep the public safe from harm is the foundation upon which the social contract between society and the professions is built. Their opposition is based on the precept that no single set of prescriptive rules can possibly be imposed on each and every professional assignment undertaken by an architect or an engineer. Every project is different; each requires a unique application of professional skill and judgment.

What this controversy boils down to is a question of law. It has to do with whether the standard of care will continue to be defined in terms of usual and customary professional performance, or whether it will be redefined by Quality in the Constructed Project. In the very worst case, opponents of the manual argue, it would no longer be necessary to prove failure to exercise reasonable care to establish negligence, it would only be necessary to demonstrate that the procedures set forth in the manual were somehow not followed.

This helps to explain why a contractual requirement that you adhere to any set of quality control standards, even your own, ought to give you pause. Such a requirement may seem relatively harmless at first glance. It might go something like this:

The Architect/Engineer shall have written quality control procedures and standards in effect during the entire time work is performed under this Agreement. A copy of the Architect/Engineer's quality control manual shall be submitted to the Owner prior to the initiation of work, and the Owner may require evidence that the procedures set forth therein are being followed. All calculations, drawings, documents, and other instruments of service submitted pursuant to this Agreement shall be marked as having been prepared and fully checked in accordance therewith.

The reality is, you are being set up. Most owners and their attorneys will quickly explain that this is not their intent. They want to be reasonable, and what they are seeking from you is a reasonable assurance that you will put forth your best efforts to safeguard the quality of what you do. What could be more reasonable than to ask you to follow the guidelines you, yourself have drafted?

Fundamentals are important at a time like this. You may have to explain to your client that the project you are about to undertake requires you to chart an uncertain course toward a destination never before visited by man. As you go about doing so, you will encounter hundreds, if not thousands of decision points, all on unfamiliar terrain. The very best you can do is rely on your education, skill, and experience as a professional to make reasonable judgments under the unique circumstances at hand.

It is not appropriate to impose a rigid set of rules, standards, and procedures on this process. Unlike the production line, the design process cannot be controlled by regulating the consistency of an endlessly repeated series of routine actions. There are none. This is so because every design challenge is different; every project requires that you apply your professional skill and judgment in a different way. No set of rules and procedures can change this simple fact of professional life.

How, then, do you respond to a requirement the owner believes to be eminently reasonable, but which is not? For one thing, you can agree to maintain written quality control procedures and standards (if, in fact, you do). For another, you can agree to perform your services in a manner consistent with those procedures and standards. But you need to reserve your right to apply them or not to apply them to any particular situation at any given moment in time.

Here is one approach to redrafting the requirement set forth above you might review with your attorney:

Anything more than this and you may find that you have agreed to perform lock-step tasks which produce reams of paper but have little or no benefit to your client or to the project. Attempting to perform these tasks will most certainly increase your costs. It will probably increase your vulnerability to claims, as well.

It makes no sense, either from your clients' point of view or from your own, to allow the importance of paper to supersede the importance of professional judgment. In the end, you cannot achieve quality with paper any more than your client can construct a building with it. What it takes is reasoned judgment. That, after all, is the quality your client came to you seeking in the first place.

(fn1) American Society of Civil Engineers, Quality in the Constructed Project: A Guideline for Owners, Designers and Constructors (New York: ASCE, May 1988).