Eyes Wide Open

Nov. 1, 2004
The roles of the school and architect during a construction or renovation project should be understood and documented early in the process.

A good working relationship between a school and an architect is vital to a successful construction project. Too often, however, schools and architects encounter significant frustration with each other. An architect may fail to provide creative design solutions, operate within budget limitations, provide timely responses to school administrators' requests, or respond in a timely manner to contractor submittals and change-order requests.

School administrators may create problems by giving inconsistent directions — faculty members may insist on certain features that the budget will not permit, or offer no direction at all on important design decisions. Both administrators and architects suffer if a project concludes with disharmony. Even if the disharmony does not lead to formal legal proceedings, chances are school officials did not get the project they wanted, or the process was more difficult than anticipated. The architect is not likely to get another project or a favorable recommendation from the school.

There is no cure-all to avoid all problems. However, the likelihood of avoiding such conflicts will be reduced if administrators and architects discuss, negotiate and document a clear definition of their respective roles and responsibilities.

Pre-design services

Most school officials understand that architects will prepare the drawings and specifications for a project, but it may be beneficial for architects to become involved long before any drawing is generated. The starting point for defining any project, whether new construction or renovation, is the school's program. In general, a program is a document that includes a narrative description, sometimes accompanied by diagrams and other information, that defines the square footage, functional requirements (i.e., classroom, laboratory, office, food service, utility), operability standards, life cycle and other project requirements.

School officials should meet with the architects to enumerate, discuss and evaluate the school's vision of the program. Critical stakeholders, such as faculty, maintenance personnel and security officers, should be involved in these discussions to set forth the sometimes conflicting requirements. During brainstorming sessions and charrettes with these stakeholders, architects can incorporate, balance and analyze the varied requirements and review possible solutions.

A program that school officials and architects develop jointly will start the project down the right road. Administrators will have a clear understanding of what their project will provide upon completion. The architects will have a better understanding of the dynamics of their client and have a roadmap to guide them in preparing the plans and specifications that eventually will be furnished to a contractor for construction.

Services and deliverables

First and foremost, an architect is hired to prepare drawings and specifications to build a project. A building consists of many systems, including structural, mechanical, electrical, plumbing, information technology, security, telecommunications, and perhaps laboratories and food service. It is important to have a clear understanding of who will provide which services before the contract is signed.

The parties should clearly define:

  • The type of design services that the architect will provide.

  • The design services that the school will procure through other design professionals.

  • Who has the responsibility for coordinating the various design services that are part of the project.

Many of the widely used standard contract forms, such as those published by the American Institute of Architects (AIA), define the basic scope of design services, but one size does not fit all.

The architects and school officials also may have a different view of what type of deliverables are required for each design phase. The drawings that an architect may believe are appropriate for the schematic design phase may not be detailed enough for the school. Models and renderings, which can be time-consuming and costly, often are considered essential by a school to evaluate whether the design is consistent with the program. However, the architect may not have included the time and expense in its fee for these models and renderings. A better practice is to define the deliverables in the contract and when those deliverables should be completed.

Construction administration also can be a fertile field for mismatched expectations. Processing and reviewing submittals during construction is another important function of the design professional. Submittals are shop drawings, samples or product information required from a contractor to describe in greater detail how and what the contractor will install. Contractors usually do not proceed with the work until architects have reviewed a submittal. A timely review, therefore, is critical to keep construction on schedule. Both the architect and contractor should meet and confer on an appropriate schedule for submission, review and approval of submittals. This schedule should be realistic so that architects and their consultants have sufficient time to review the submittals, and the contractor will have the necessary information to build the project in a timely manner.

Architects typically provide periodic observation of the construction to determine whether the contractor is following the drawings and specifications. School officials should define the number, duration and purpose of site visits. The first two issues likely will be driven by cost. The last issue may be driven by many architects' resistance, cultivated by its lawyers and insurers, to any obligation to “inspect” the work because architects do not want to expose themselves to liability for contractor mistakes that the architects do not detect. The appropriate level of the architect's involvement in reviewing a contractor's work also will depend upon the other quality-control tools that the school has in place. If a testing laboratory is employed or a full-time representative of the school is present on site, then the role of the architect may not need to be as extensive.

Cost accountability

School officials often complain that architects want to design a work of art, and the school wants a functional building. The budget usually is the root of this conflict, because the school does not have limitless resources. School officials need to convey their budgetary constraints clearly and in advance. Even if there is no fixed limit of construction cost, the architects should understand that the design must allow the school to award a construction contract within the budget. The AIA standard form owner-architect agreement sets forth a number of options if bids come in over budget, including the requirement that the architect redesign without any additional compensation. This is a good option, but any redesign must have the school's approval so that, for example, the architect does not eliminate important functional features in the interest of preserving aesthetics.

Many change orders cannot be avoided. The fee that the school and architect agree upon should account for some change orders and specify that the architect will be called upon to render services in connection with the change orders.

Other change orders can be avoided, though. A contractor may submit a change order because a building-code inspector finds that certain building components do not comply with code. This can be avoided, in most cases, if the architect investigates the code thoroughly. Changes may result because ductwork for heating, ventilation and air conditioning conflicts in the field with the location of structural beams or columns. If a contractor has followed the drawings, such a change could have been avoided if the architect properly coordinated all of its drawings.

An architect should not be entitled to additional compensation to review, process and document changes in the work that could have been avoided. The school and architect also can establish a review process during or at the end of the project to evaluate the reasons for change orders, the responsibility of the architect for the change orders, and the impact on the architect's fee.

Show me the money

Fee arrangements can come in many shapes and sizes. Two of the most common are lump sum and percentage of construction cost. A lump sum, as the name suggests, establishes a fixed price for the architect's basic services.

When the fee is based on percentage of construction cost, the school should think carefully about when to “fix” the actual dollar amount of the fee. The amount can be fixed based on the total amount paid for construction, which will not be known until the contractor has been paid fully. This arrangement can cause friction because the school may be paying fees to the architect based on construction costs incurred based on the architect's errors or omissions, or school officials may be convinced that higher construction costs are the architect's fault. The parties can fix the fee based on the school's budget before construction begins. Unless the parties agree to modify the fee based on actual construction costs, the school or the architect could end up paying or receiving more or less, depending on where final construction costs come in.

Brennan is a partner with the law firm of Piper Rudnick LLP, Chicago.

Defining the contract

Developing a good working relationship between a school and architect is easier with a contract that accurately reflects the parties' expectations, roles and responsibilities. To craft such a contract, school administrators should consider including the following provisions:

  • Define the type of program and the architect's role in developing that program.

  • Identify special consultants that the school and architect will hire and who is responsible for incorporating the consultants' work into the drawings and specifications.

  • Define the deliverables for each design phase.

  • Include a schedule for completion of the deliverables.

  • Require the architect to meet and confer with the contractor to establish a submittal schedule, and make the architect's compliance with the submittal schedule a contractual duty.

  • Specify the number, frequency, duration and scope of the architect's site visits.

  • Require the architect to redesign, at no cost to the school, if construction bids exceed the budget subject to the school's right to approve the redesign.

  • Eliminate any additional compensation to the architect for change orders attributable to the architect's errors or omissions.

  • Establish a review process to evaluate the reasons for change orders, the responsibility of the architect for the change orders and the impact, if any, on the architect's fee.

  • If the architect's fee is based upon the cost of construction, establish that fee based on the initial contract sum in the construction contract, with any additional fee to be earned only if the architect renders extra services as defined in the contract.

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