Vol. 10 No. 7		July 1991

If you were to ask the person in the street what "as-built" drawings might be, how do you think he or she would respond? How, indeed, would even that "reasonably prudent man" attorneys seem to be constantly casting about for? Granted, you may have to explain that drawings are the "blueprints" from which contractors build buildings, but once you do, the conclusion is likely to come easily: "'As-builts' must be drawings that show the actual location of what it was that was built."

What does this have to do with you? Imagine this same "reasonably prudent man" as a juror, and the potential seriousness of the problem begins to emerge.

The case involves a contractor's employee severely injured during the expansion of a large manufacturing facility you designed six years before. Relying on your "as-built" drawings to fix the location of a concealed power main, the supervisor instructed the worker to dig a trench in an adjacent area where, unfortunately, the power main actually lay. A serious accident ensued; the worker was permanently disabled as a result.

Facing a lifetime inability to support his wife and three children, and inadequately compensated under outdated Workers' Compensation Schedules, the injured employee has filed suit seeking to recover both from the manufacturer, who provided the faulty "as-built" drawings, and from you, who prepared them in the first place. Not only is your original contract silent on the subject of responsibility for the accuracy of the drawings, but it turns out that your field representative on the project, trying to be helpful, had assisted the contractor in meeting his obligation to furnish the marked-up field set.

Given all this, it would not be surprising for the jury to be led quickly to the conclusion that your negligence in preparing the drawings was the principal cause of the worker's unfortunate suffering.

It is not uncommon for owners to insist on the delivery of "as-built" drawings and "corrected" specifications. Some see them as an essential source of information for facilities management and maintenance; others anticipate they will be needed for future remodeling or expansion. Nor, is it uncommon for owners to expect that their "as built" drawings will show the true location of all work.

The problem is, "as-built" drawings are normally prepared on the basis of construction records maintained by the general contractor. Most often, it is impractical for you to verify these records; in some cases, it is impossible. Why, then, would you want to assume responsibility for errors and omissions that could be incorporated into your documents as a result? Probably, you do not.

What can you do to establish reasonable limitations on your responsibility, and to make certain those limitations are understood by all concerned? Here are some suggestions you might want to consider:

1. Take advantage of the opportunity afforded by your negotiations with your client to discuss the inherent problems. Use examples to explain how changes in the location of work can be made without your knowledge, and why minor changes are unlikely to be noted on "as-builts" in any event. It would also be a good idea to substitute "record documents" for "as-built" drawings and "corrected" specifications. This is a more accurate description of what the documents really are, and it helps to reduce the likelihood of serious misunderstanding.

2. Make an effort to have the owner require that the general contractor prepare the record documents. It is the general contractor, after all, who is responsible for supervising the day-to-day work on the site; he or she is the only one in a position to identify and record changes made during the course of construction. If you take this approach, however, it is important to remember to stipulate in the construction contract that the record documents are to be prepared on reproducibles from which your title block and seal have been removed.

3. If your client is reluctant to entrust this responsibility to others, or if the contractor simply does not have the capability to respond, you may have to agree to take it on yourself. If so, be certain the owner understands that the drawings will be based on information submitted by the contractor, information you may not (in some cases will not) be in a position to verify. Thus, although you are willing to provide the service as an accommodation, you cannot be responsible for the accuracy of the drawings.

4. After you reach a clear understanding with your client, incorporate that understanding into your agreement. Subject to review by your attorney, you might propose contract language along the following lines:

   Upon Substantial Completion of the Work, the Architect (Engineer) shall compile for and deliver to the Owner a set of Record Documents conforming to the construction records of the Contractor as provided to the Architect (Engineer). This set of documents shall consist of corrected specifications and plans showing the reported location of the Work. The information submitted by the Contractor and incorporated by the Architect (Engineer) into the Record Documents will be assumed to be reliable, and the Architect (Engineer) will not be responsible for the accuracy of this information, nor for any errors or omissions which may appear in the Record Documents as a result.

5. Take equal care in assuring that your actions remain consistent with your intent. Instruct your field representatives carefully. While they may have a responsibility to ascertain that the contractor cormplies with his or her obligation to maintain and submit records of construction, they have no obligation to step in and assist the contractor in meeting that (or any other) responsibility. You may also want to reflect your intent in the form of a warning stamped on each sheet of your record drawings and on the cover sheet to the revised specifications. Such a warning, again subject to review by your attorney, might read as follows:

   These Record Drawings (Specifications) have been prepared based on information provided by others. The Architect (Engineer) has not verified the accuracy of this information and shall not be responsible for any errors or omissions which may be incorporated herein as a result.

In exercising these precautions, keep in mind that the objective is not to avoid responsibilities that properly belong to you. It is to do everything you can to arrive at a clear understanding with your client--about those aspects of a project where you, in fact, are in a position to bring your expertise to bear, and about those where you are not. The clearest possible understanding is one that will make sense to everyone who could somehow be involved. Even, if need be, that "reasonably prudent man."