Vol. 10 No. 10		October 1991

There is a problem. It has to do with the fact that your work on a project necessarily involves the use of information compiled by others. This information--be it a site survey, a soils report, or the insurance requirements for the construction contract--is normally furnished by the owner. You have no control over its source or substance, and you may not even be in a position to assess the competence with which it was prepared. Nevertheless, unless you clearly establish your right to rely on the information, you could wind up with an unwritten obligation to verify its accuracy before putting it to use.

The consequences can be severe. A site plan showing, inaccurately, the location of buried utilities could lead to enormous damage. It is not just the utility (which would be bad enough), but users of the utility, as well, who could suffer significant losses if telephone or energy services were disrupted. The consequences of an ill-conceived or incomplete soils investigation could prove equally serious.

Some owners will request that you secure the necessary geotechnical and survey information on their behalf, in return for which they propose to reimburse you for the expense. On the surface, this might seem to be adequate compensation for accommodating your client. But, in making the accommodation, you may be assuming responsibility for the work. A significant liability exposure attaches to that responsibility. You are not being paid to assume this added risk, nor should you be. The risk properly belongs to the owner.

If you find yourself with no alternative but to agree to the owner's request, you may want to insist upon certain considerations in return. At a minimum, these might include an understanding, incorporated into your agreement, that the services will be commissioned for the convenience of the owner; that you have no means of control over the work to be performed; that the product of the work will be delivered to the owner; and that you will have a right to rely on the accuracy of the information you receive. They might also include reimbursement for any additional insurance costs you incur, as well as a financial concession which recognizes your increased exposure to loss.

The exposure derives from the unpleasant reality that none of these protections can keep you out of a lawsuit. If a dispute should arise in connection with work you commission, you are likely to be dragged in. Recognizing this, you may want to forego any financial concession the owner might make and press, instead, for an indemnification against costs and losses (including the costs of defense) that arise out of the work of others. This is an option you might best review carefully with your attorney.

The owner's principal concern is likely to be that something could go wrong as a result of the negligence of the person providing the service. This is why many would prefer to have you involved. The concern may be valid-addressed to you, it is misdirected. The owner will not be without recourse in the event of a loss, but the recourse ought reasonably to be the source of the loss. Your interest (and, in fact, the owner's, as well) lies in precluding your being drawn unnecessarily into a dispute you should not be part of in the first place.

The problem can be even more serious where you are asked to replace another architect or engineer on a project already underway. The owner, anxious to avoid unnecessary expense, will be concerned that work already complete not be duplicated--despite the apparent dissatisfaction with some aspect of the services provided.

From your point of view, certain portions of that work will have to be carefully evaluated and, in some cases, verified. You know, even though the owner may not, that as soon as you start work on the job, all of the liability exposure that goes with the project (and only a portion of the fee) will be yours--regardless whether the source of the problem turns out to be your work or that of someone else.

The best way to approach a job already underway might be to suggest to your client that you make an evaluation of the completed work on a time and materials basis. You can explain why this is necessary: It is your professional judgment that will be on the line. You can point out that a certain amount of time will have to be spent sorting through the data, calculations, drawings, and other work to determine which parts might be utilized and which will have to be carefully verified or reworked before they can be accepted. Then, you will be in a position to establish a realistic scope for your work and propose an appropriate fee.

If your client refuses to accept the need for services you believe to be essential before you can comfortably proceed, you may not have a client. There is, however, one other option. You might request, as a minimum consideration, that your client assume full responsibility for work already completed. You can reflect his or her agreement to do so by turning again to the hold harmless and indemnity provision. Subject to review by your attorney, it might read something like this:

The Owner agrees to indemnify and hold the Architect/Engineer harmless from and against any and all damages, liabilities, and costs, including costs of defense, arising out of the use of documents and information provided by the Owner, excepting only those damages, liabilities, and costs for which the Architect/Engineer is found to be solely liable by a court or forum of competent jurisdiction.

This provision may not keep you out of a lawsuit in the event of a problem, but it will at least allow you to recover your costs-if the source of the problem can be traced to work provided by the owner, and if it can be shown, in your acceptance of that work, that you exercised a reasonable degree of professional care.

It is also important to recognize this: Where your agreement calls for the owner to furnish information necessary for you to do your work, it makes no sense at all for you to step in and gratuitously provide it yourself. The temptation to do so frequently arises in connection with the owner's insurance requirements, which you have to have to complete the construction contract documents. It can also arise when the owner turns to you with questions more appropriately directed to tax or legal counsel.

You might have vast experience in the questions at hand, having seen the issues addressed countless times. You might also be facing a delay in the work because of your client's inaction. But, if you step in, you may be holding yourself out as having the necessary skill and competense to practice a profession other than your own. Unless you want to assume responsibility for the consequences (and go without insurance protection in doing so), you will want to resist this temptation whenever it arises.