Vol. 11 No. 4		April 1992

Everyone likes to have assurances, and when a new project is at stake, it is terribly tempting to be accommodating. Most of the assurances you might make to your client seem innocuous enough at the time, and with selling foremost in mind, it is easy to forget that your presentations and proposals can establish standards of performance you may later be expected to meet.

The reality is, your proposal could wind up being incorporated by reference into your agreement. It could also be called upon to serve as a basis for redefining that agreement in ways you never intended.

The problem lies in the incautious and unnecessary promise. It arises less because architects and engineers purposely overstate their capabilities than because of an inherent flaw in the way we use the English language. There seems to be an acute shortage of the "in-between" words we need to communicate just what it is we have in mind.

It is not that the words do not exist, they do. But, they are relatively difficult to search out and find, and they tend to fall into disuse in everyday conversation. As a result, we find ourselves comfortable dealing in extremes, such as "best" and "worst," and able to deal with shades of gray, such as "consistent with sound architectural and engineering practices," or "within tolerances acceptable in the trade," only with a certain amount of concentrated effort.

To make matters even more difficult, most of us are inherently optimistic, and certainly when selling, we want to put our best foot forward. This is all well and good, so long as promises are not made about professional performance that later are likely to prove impossible to live up to.

Your client may earnestly desire that you "insure" your work complies with "all" applicable codes and regulations, but you are not in a position to do so (unless your secret plan is to go into the insurance business on your own). He or she would also like to see you perform to the "highest" professional standards, but who is to say what those standards might be?

Clearly, the incautious use of extreme words and phrases in your presentations, proposals, and agreements can lead others to unrealistic expectations. It can also establish a level of liability which exceeds both your responsibilities under the common law and the protection afforded by your professional liability insurance.

"Time is of the essence" is one of the more serious of the incautious promises you can make. It means that the timely performance of your services, usually against a rigid task schedule, is understood to be critical to the successful completion of your obligations to your client. Even a modest delay may constitute a material breach of your contract. If time is truly "of the essence" from your client's point of view, you will want to be very certain the schedule is one you can comfortably live with. The consequences of failure can be serious (and they may not be covered by your insurance).

Consider a situation in which delay on your part causes the owner to forfeit favorable financing terms (or forces an extension of time in the construction contract after the owner has entered into firm lease agreements with tenants). The damages can escalate quickly out of control. Even if you acted in good faith, with the owner's best interests foremost in mind, it may not matter in the end.

Far better that you reach a realistic understanding with your client at the outset. The most effective performance of professional services does not lend itself well to rigid scheduling. Often, by taking more time to resolve design problems up front, you can save the owner both time and money in the long run, and it is certainly not in the owner's interest for you to be forced to forego the careful attention to detail and quality you know will produce a better result.

Nor, contrary to the belief of many owners, is it a question of simply throwing more bodies at the problem in the expectation of speeding up the outcome. Unlike construction, where lost time can often be made up with overtime and additional labor, unanticipated delays in the performance of professional services can seldom be recovered by redoubling the effort. In fact, an attempt to do so can easily turn out to have the opposite effect.

How can you avoid being trapped by your own incautious promises? Here are some rules you might consider following in your marketing and contract negotiation efforts:

1. Make certain everyone in the firm is aware of the dangers inherent in the inadvertent overstatement. Not only does it present an image that falls short of the reputation for professionalism you have worked so hard to achieve, it can lead to unreasonable expectations of performance. Your failure to live up to those expectations can easily draw you into an unnecessary lawsuit.

2. Take a close look at your brochures, proposals, and presentation materials. If you find yourself unintentionally promising more than you can realistically deliver, find a way to restate the strengths you have and the capabilities you offer. You can be positive and persuasive without emulating Madison Avenue.

3. Assign someone to go over client contract proposals with a fine-toothed comb searching for unreasonable requirements, such as "maximum energy efficiency," "the most advanced technology available," and "100% complete plans and specifications." Be prepared to suggest substitute language which more precisely defines what it is your client is seeking to attain and what it is you can realistically do to help. If the issue is timely performance, you might suggest an alternative to "time is of the essence" along the following lines:

   The Architect (Engineer) acknowledges that the timely performance of professional services is an important element of this Agreement. Accordingly, it is agreed that the Architect (Engineer) will put forth his or her best professional effort to complete the work in accordance with the schedule attached as Appendix ___.

4. Finally, use the opportunity afforded by your contract negotiations to explain to your client what the limitations on your ability to meet his or her needs really are. You may have to point out that the delivery of professional services necessarily involves uncertainties. Dealing with these uncertainties requires the exercise of professional judgment--judgment based on the collective education and experience of your firm. You can promise to put forth "your best" professional efforts in applying that education and experience, but not "the best" professional effort someone else might be able to conceive of after all the facts are in.