Vol. 8 No. 8		August 1989

That your plans and specifications will be flawed is not a risk. It is a certainty. The process of reducing a design concept to a complex set of calculations, drawings, symbols, and words on paper is virtually guaranteed to yield imperfections. Some owners do not understand this. Even those who do may have attorneys who are reluctant to allow them to acknowledge it.

Why else would they hand you an agreement which obligates you to visit the site, process change orders, and produce clarification drawings made necessary by errors or omissions in the plans and specifications at your own expense? Either they harbor expectations you cannot possibly meet, or they are being cynical in the extreme--fully intending to transfer a risk which cannot be avoided to someone who cannot afford to absorb the cost. That someone is you.

The issue of fees springs immediately to mind, but adequate compensation may not be your most immediate concern. On a lump sum project, you can budget most of this risk away. You know you will have to spend time during construction to tie up loose ends, and your experience gives you a reasonable basis for estimating the cost. But you cannot budget away unrealistic expectations.

On a time and materials project, the fee issue comes more sharply into focus. Even so, your ability to recover your costs is inseparable from your ability to control the expectations of your client. It is here that the real and potentially uncontrollable costs of imperfection lie hidden from view. Best they be exposed to the uncompromising light of candor.

You may have to explain to your client that design is a process of successive refinements, a narrowing of options as thousands of interrelated decisions are made in a somewhat disjointed sequence of events which leads from major issues to the most detailed of choices. At any point along the way, there is no single, correct course of action. No one has ever been on this particular path before, and the only guideposts you have are the broad, barely discernible parameters of reasonable professional care.

By the time a design reaches its final stages, it has evolved into a highly complex instrument. First and foremost, it is a communications resource, and like all communication devices, it is flawed by the imperfections of both sender and receiver. It can be strengthened only so much before the point is reached at which further attention no longer makes economic sense. Not all contingencies can be predicted, not all possibilities for misunderstanding can be eliminated, not all errors or omissions can be found and corrected. The final refinements simply have to be made in the field.

If you can gain your client's appreciation of these fundamental constraints, revising the language of your agreement should be relatively straightforward. Here is a provision you can live with:

At this point, most owners will protest that they do not expect perfection. They understand that neither architecture nor engineering is an exact science. But they are uncomfortable with the notion that some unknown sum is going to be spent dealing with ambiguity, errors, omissions, and otherwise imperfect communications. Why, they will ask, are you unwilling to agree to something as simple and as straightforward as correcting your own mistakes? You are not, but you do want to be paid for your efforts. And you should be. Here are some of the reasons:

1. Contractual requirements which cannot possibly be met are not going to change the way you go about doing what you do. The only purpose they can serve is to lay the groundwork for a later dispute; one which both you and your client would profit by avoiding. It serves neither of your interests to enter into an agreement to which a plaintiff's attorney can point as "proof positive" of your mutual intent to deliver to the contractor a flawless set of documents.

2. Your fee cannot be set high enough for you to produce "100% complete plans and specifications." It is unreasonable to ask you to assume responsibility for a risk which is best controlled, not on the boards, but through your additional efforts in the field. This is not a matter of being paid twice to achieve a single result, but one of efficiency in the allocation of scarce resources for completing the job in the first place.

3. All you have to offer in return for the compensation you receive is your time. You are expected to use that time to exercise your professional skill and judgment on your client's behalf. But, once expended, it is not recoverable. You cannot eliminate the risk of construction, but your expertise helps to reduce that risk. Your presence in the field adds value by enhancing your ability to serve this purpose. The owner benefits from these efforts, and you have every reasonable right to be paid for them.

4. Professional liability insurance is not a reservoir into which an owner can freely dip for compensation for your inevitable imperfections. Not only do you have a substantial deductible obligation at risk before insurance even becomes an issue, but the policy is not written to protect against any and all "errors and omissions." It is written to protect only against those which fall outside a standard of usual and customary professional care. Inevitable imperfections are not likely to fall outside that standard.

Let survive the notion that, having retained an architect or an engineer to produce a set of plans and specifications, the owner is entitled to a perfect outcome, and we have a problem akin to "The Fly that Ate Los Angeles." If someone had simply gone after that creature before it grew to killer proportions, Los Angeles would exist today.

If your client truly believes your duty includes the essential elements of perfection, and if perfection is not the end result, you can expect to be embroiled in a conflict from which you will have great difficulty emerging intact. Changes and claims for extras which can be attributed to "design error" will be, and you are not likely to find yourself on the side of the angels once the paper begins to flow. You are more likely to find yourself badly out of position.

You can go a long way toward precluding this unhappy turn of events, but only if you deal with your client's expectations at the very outset. The negotiation of your professional services agreement is the best opportunity you will have. The extent to which that agreement reflects reasonable professional obligations is an important measure of the success of your efforts.