The Protocols of Construction: The Written Contract

The Protocols of Construction: The Written Contract

One local DC-area architect refers to the documents generated during every project as “the protocols of construction.” Adhering to and following those protocols (including, as examples, the protocols established for bids, RFIs, submittals, punch lists, etc.) minimize the risk of challenges on a project. When disputes arise on a project, the records created and maintained as part of the protocols provide a road-map as to who did what, when, and why. Often, the protocols reduce disputes.

The first protocol established on most projects is the owner-architect contract. An effective contract should identify the scope of the services to be provided, the responsibilities of each party to the agreement, the amount of compensation to be paid for the services rendered, the remedies available in the event of a breach by one party or another, and the manner in which the parties allocate responsibility and risk.

During the “honeymoon phase” of a relationship, no party expects problems to occur; however, most parties understand that disputes may arise. Written contracts memorializing the parties’ agreement operate to define the parties’ expectations as to how to resolve disagreements that might crop up. The contract identifies the protocols for resolving disputes related to scope creep, adjustments to the architect’s fee, extending the project schedule, and resolving concerns over the quality of the architect’s services.

No written contract can cover every contingency, as evidenced by the AIA which has published form contracts for architects and construction professionals since 1887. The current AIA B101-2017 Standard Form of Agreement Between Owner and Architect is 23-pages long, and the AIA publishes 38 other potential contract forms depending upon the type of project, mode of delivery, scope of services and other considerations. Not every project requires the level of detail provided by the AIA form contracts. For the architect’s protection, however, every project on which the architect provides professional services should have a written contract that sets forth protocols that take into account the nature of the client, type of project delivery, complexity, budget and schedule. As described in the AIA’s Architect’s Handbook of Professional Practice, “[f]or client satisfaction and project success (and thereby dispute avoidance), the most important section of any architectural agreement remains a qualitatively and quantitatively detailed scope of work.”

Fees and risk increase with each phase of design services, i.e., Schematic, Design Development, Construction Documents, Bidding, and Construction Administration. Once clear statements of the scope of the architect’s services for each phase of design services, and accompanying schedule and fees are established, the architect’s contract should fairly allocate responsibility and risk for the project, including – by way of example – a limitation of liability, waiver of consequential damages, waiver of subrogation, and other risk management provisions.

Other provisions addressing, for example, how changes to the contract will be made (in writing), the dispute resolution process (notice, negotiation, mediation), and venue for dispute resolution (where the project is located? where the architect’s principal office is located?) can and should be considered in all contracts. Establishing such protocols protects the architect, increases the likelihood of a successful project, a happy client, and can be used as a template for many of the projects on which the architect will work. Having such a prepared set of contractual provisions as the first step in implementing workable protocols of construction will contribute to an architect’s ongoing and long-term success.

Courtesy of J. Scott Shannon, Senior Counsel with Lee/Shoemaker PLLC, a law firm devoted to the representation of design professionals in all facets of their business. Lee/Shoemaker PLLC is an Allied Member of AIA Potomac Valley.

This article is intended to provide general legal advice and should not be relied on for specific situations. Consult your attorney for specific legal advice applicable to your situation.

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