Category: Procurement & Contracts

Proprietary Systems

Proprietary Systems

Your design includes a proprietary system.  For example a glazed wall or curtain wall system, cladding or a façade cladding system, roof or sandwich panel, a membrane waterproofing system, flashing system – take your pick.  You are reliant on the provider’s information for design documentation (including details specifications and QA systems), on a licensed applicator/installer for the work on site, and on a producer certificate and/or warranty for completion.

When it goes wrong, are you in the cross-hairs?

Apart from being a natural target as the designer holding PI cover, it will depend!

In selecting the product or system for your design, you are entitled to rely on representations by the supplier, but as a professional person it is expected that you at least attempt to divide the facts from the “alternative facts”.  When the blow-torch is applied in the courtroom (several years later), you need to be able to verify that you carried out sufficient enquiry to establish that you made a prudent selection.  And that your selection was made on the basis of the particular circumstances of the project as they were known at the time.

When incorporating the supplier’s information into your design, you still have a duty to assess and make sensible use of their standard detailing to suit the project.  Wind loadings, seismic movement, future maintenance, installation complexity and many other issues will be relevant.  The question is not so much “will it be good enough” but “where, why and how will it potentially fail, and what are the consequences of that?”

The supplier’s information is not usually provided in the form necessary to deal with all the junctions and interfaces with other work;  QA/ fixing details/ lap details/ weathering details may be at odds with your expectations.  Your site-specific design needs to deal with that.  If you “tweak” a standard detail, it becomes your detail, not theirs.  The same if you use a standard detail in a non-standard way.

During the installation, what are your obligations to observe?  You may think that your responsibility is replaced or reduced by using a licensed installer under the supplier’s QA system.  But sooner or later, someone is going to suggest that despite that, you still had a duty to observe and comment on the work.  A licensed installer does not provide certainty of performance;  a supplier’s QA system in turn needs to be assessed and monitored.  At the very least you will have to verify that you reviewed the work to the extent required to be satisfied that the performance requirements and the QA measures were being carried out.

On completion, are you now completely reliant upon documentation by the supplier?  If so, what is in place to make sure you get it when you need it?  Can it be trusted:  it is not unknown for suppliers to sign off on defective work in the hope that it never comes back to bite them.  If the contract requires a warranty, make sure you get it.  But a warranty from a worthless company is worthless!  How hard is it going to be to “collect” on the warranty when required?

And now we are at the point – years later – when the proprietary system and/or building elements in association with it have failed.  Maybe the main contractor, supplier and installer have also “evaporated”.  Worse, close examination reveals that the system was used in a non-standard way, and with substitution of some elements of it, despite the producer statements and warranties.  The performance expectations and technical detailing has become more sophisticated over the years. 

Only now, dear member, do you realise that the fees you earned were inadequate to allow for the careful attention required by the circumstances of this project;  or for the potential future risk that under joint and several liability you (and your insurers) would carry the can for failures by others.

(See also “Reliance on, and co-ordination of trade and consultant advice”)

When contract terms shift the risks and responsibilities

When contract terms shift the risks and responsibilities

The majority of respondents to a 2018 survey by Russell McVeagh lawyers in our industry thought that there had been more disputes over the past two years, and it would get worse in the next two.  That prognosis was more strongly reflected in responses from contractors than from principals.  The survey cited those trends arising out of skill shortages, risk allocation and contract terms.  To that should be added poor communication and lack of comprehension. 

Other recent media reports have highlighted the problems arising when contract terms shift the risks and responsibilities from where they might reasonably fall.  Some government procurement bodies and large developers are doing – at a larger scale – what homeowners often do through a lack of understanding:  assuming that in appointing an architect (or a contractor) they will devolve all risk onto them. 

Stick with NZIA conditions of engagement and contract terms if you can!  It is the NZACS experience that cost savings in consulting fees or truncated services bear an inverse relationship to the potential for later disputes.  Designers are not motivated to provide thorough documentation at punitive fees, and an underpaid contractor is less likely to provide glowing performance.  The designer’s absence from the construction phase seems to result in less documentation (when really it may require more) and contractors are at increased risk if the documentation is not adequate, or is adequate but not understood. 

The principal may assume that contract observation and administration by the designer is a waste of money.  Then, when it proves it was needed, their view is that the design documentation was deficient.  The time to resolve problems is usually as soon as the information is available to do so, but in such cases the contractor is reluctant to call in the designer because that would end up costing him and/or the principal money.  So the problem festers, and probably escalates. 

In the alternative, if the designer is involved in contract administration, the uniformed principal conflates the role with contract management, and the contractor’s defaults become the designer’s failures.

Yes of course NZACS members already know all this!  But what is routine for us is not routine for our clients:  prudent risk management requires us to think about things from their perspective, and to communicate with them in such a way that the designer’s – and the contractor’s – risks and interests are recognised and accommodated.

Completion Statements

Completion Statements

When developer-driven housing projects cut out the architect for observation during the construction phase, it often turns out that they later require a completion statement in order to meet the terms of sale for the units.  This task is fraught with problems:  if you have not been involved in the construction as it happened, how can you possibly offer a sensible opinion on how that work was carried out? 

No matter how carefully you seek to limit your completion statement to “what you can see, when you saw it” the pressure to expand that statement to meet the requirements of individual purchasers will be immense, and the interpretation of it several years later when things have gone wrong is beyond your control.  Even if you were only required to certify in relation to fitness for occupation, inevitably the question will arise about why you did not – at the same time – see something else which (several years later) caused costly problems.

This is an issue that should be dealt with at the time you are engaged for the project, when the proper scope and risk management arrangements can be put in place.  Hopefully the extent and purpose of your attendances during construction is clearly described.  If it is limited in extent, that will be a very important matter to set down.

We have dealt with this many times before!  See, for example under posts for Practical Completion and Fitness for Purpose Statements.

On a similar issue, different clients (and/or their funders) have different ideas about what a statement of practical completion should say.  Again, this is an issue that should be discussed at the beginning (so you can prepare for and charge accordingly) rather than near the end of the project, when you can be leveraged to your disadvantage.  Clients have been known to demand a statement of practical completion – using their text – in return for a prompt payment of long outstanding fee invoices.

You will recognise what comes next:  The short point is:  the NZIA or CCCS terms are “neutral” and built up from many years of experience in projects of all types and sizes, so you should be VERY AFRAID of attempts by others to reinvent the wheel, with the prospect of unexpected and potentially unwelcome outcomes.

You can only “certify” on the basis of the work you have undertaken;  so it would be useful to qualify any statements so as to make it clear that you are only commenting on the basis of (and to the limited extent of) the scope of work for which you were engaged.  And if others have altered what you did in any way (with or without your knowledge), you cannot be responsible for that unless you have specifically accepted the change.

In the absence of a statement limiting your involvement, the chances are that you will be held to have been part of or party to something that may have not been within your control.  For example, if a client changes an item unilaterally or contrary to your advice, you do not want to be later confronted with the assertion that (by default) you agreed to it.

Be aware that if it comes to a claim against you, there is every prospect that any and all of your documents might be available to the claimant, whether you agree or not.  That means that correspondence, site notes and office memos must all be consistent:  in the event of discrepancy or contradictions or ambiguities, the claimant will exploit those against you.

If your statements are reliant on information provided to you, then make that clear.  To some extent you will have a duty to review and accept that information, in other cases you would be wise to accept it without review, but in all cases, you will need to be satisfied that it meets your expectations as a prudent architect.

You should not be making a statement which might suggest your taking responsibility for the actions of others.  By way of example, let’s take the issue of a CCC by the BCA.  It would be a simple statement of fact if you confirmed that a CCC had been issued;  but you would most assuredly be putting the noose around your neck to state that a CCC had been issued “and all compliance requirements have been met”.  If it is later found that the CCC was wrongly issued, your statement will join you into that problem.  It is easy to apply the same principle to all sorts of warranties and producer statements by others, where the issue will be whether the contract requirements (or consultant requirements) have been met.

Similarly, if you have adequately observed the work, you could reasonably state that the contract requirements set out in the documentation provided by you under the terms of your engagement have, to the best of your knowledge and belief, (and if relevant, in reliance on listed documentation by others) been satisfied.  But there is no reason why you should put yourself at risk by saying that the work complies with this or that law or regulation, or that it is fit for purpose and/or meets the expectations of anyone else.

Communications: Put It In Writing! (Or A Picture).

Communications:  Put It In Writing! (Or A Picture).

High in the list of reasons for claims are:

  • Inadequate ongoing communication between architect/client/contractor
  • Inadequate confirmation of contract performance
  • Partial, absent, or inadequately recorded observation role.

We offer a few basic comments below:  they are focussed on these three issues and on risk management, and are by no means comprehensive.

  • Engagement:  As soon as it is reasonable to do so, communicate to the client your understanding of the project, your role in it, and the fees and terms applicable.  Review this on an ongoing basis throughout the contract, update as required, and promptly confirm changes when it appears necessary to do so.
  • Design Brief:  Agree and record in writing, updated as the project progresses through typical stages of design and documentation.  Wherever possible, the design brief and later instructions should establish priorities:  information without context is inadequate.  For alteration work and where the client is familiar with the building, the Design Brief might be confirmed by a sketch plan with accompanying notes, but for new work it may be risky to rely on approval of the concept drawings as establishing the brief.
  • Action notes:  Requirements for action must confirm who is to take action and when.
  • Client communication:  Clients (and their lawyers) usually understand words better than architectural drawings:  be sure that their requirements are understood, recorded and confirmed by them.  And they will change, in which case the change also needs to be dated and confirmed.    
  • Milestones:  At each point at which the project reaches a milestone, confirm with the client before moving to the next stage, and inform them of the consequences of having to backtrack or change direction.
  • Progress reports:  We know that design is an iterative process.  If it was not, then we could start the detailing on day one of our engagement.  Each step of the way is likely to throw up conflicts and reconsideration of priorities:  that is not wrong, it is part of the process.  Clients need to be reminded of that, and kept abreast of progress, and of the way the changes are evolving, why, and the need for their ongoing involvement and decision-making. 
  • Site & meetings records:  Keep a record of all project meetings and site visits regardless of whose duty it is to formally do so.  Take plenty of photos.  These notes and photos will be your first line of defence in the event of future litigation claims.  Record at least the date, those present, the scope and purpose of the event, the work in hand completed or about to start, actions required of the architect and others;  and, if relevant, weather conditions, defects remediation, Health and Safety issues and general workmanship observations.
  • Observation v contract administration:   They are not the same.  You may be engaged for one or the other, or both, or neither.  Whatever the case there should be a clear definition of what your scope of work is and what it does not include.  Changes to that scope should be recorded, preferably with reasons and a note to the client confirming the consequences.
  • Periodic site visits:  If engaged for an Observation/ Contract Administration Role, then site visits on a periodic fashion as agreed at the start of the project should be undertaken, (perhaps weekly or fortnightly) depending on the scale and complexity of the project.  Site Observation by the Architect may also be required at key phases and to review a sample of critical work.  This task requires methodical care, attention, and careful record-keeping. 
  • Concealed work:  Generally, the Architect is liable for works which they could have reasonably been expected to have observed during their time on site assuming the necessary access is available.  Where work has been completed but unable to be inspected, there is an assumption that it has been carried out to the contract requirements.  But where “what can be seen” suggests that concealed work is unacceptable, the Architect cannot ignore the inference and should follow up.
  • Limited Observation:  Does such a thing exist?  This is dangerous territory:  there are many claims where the Architect understood that they were only required to look at “this” but (several years later, with faded memories and unclear records) the claimant’s lawyer has asserted that any professional on site for whatever reason could not have failed to notice and take action on “that”.  Be very afraid.
  • Supervision:  Periodic observation is not continuous site management/ quality control/ site supervision and is not a substitute for nor a guarantor of the contractor’s responsibility to carry out the contract as required by it.  The contractor is required to seek timely clarification of gaps ambiguities or errors in the documentation, or apparent conflicts with building code requirements, when and if necessary. 
  • Defective work:  The Architect is entitled to expect the inspected works are representative of all work of a similar nature on site, including type, spacing, fixing, quality of installation and finish.  Defective or inappropriately installed materials or finishes are not acceptable.  Substituted materials are only acceptable if approved in writing by the Architect.  All works are assumed to be plumb and level or sloped as required in accordance with the contract requirements without the Architect having to necessarily confirm, measure or verify independently. 
  • Warranties and guarantees:  If a warranty or guarantee is called for, there needs to be a process for obtaining confirmation that it is put in place.  Think carefully about what they are called for, what they might cover (materials and workmanship may be two very different things), and what responsibility you may have (if any) in the level of benefit they provide and how they are obtained as required by the contract.  It is not your responsibility to “vet” them, but the client will not be impressed if they turn out to be useless or unenforceable.  Your client needs to understand that warranties and guarantees can vary over time, are dependent on regular (or defined) maintenance, and can vary between similar products.
  • Completion:  The Architect is entitled to assume that warranties will be provided where called for in the contract, and that on completion the project will be properly maintained.

Reliance on, and co-ordination of trade and consultant advice

Reliance on, and co-ordination of trade and consultant advice

Several claims have revolved around whether the architect was prudent or competent in applying the advice from others. A claim based on co-ordination issues is also likely to involve the architect. The corollary is that an architect is expected to have the competence to recognise when specialist input is required, and to communicate that need to the client.

In general terms an architect is not expected to be an expert in all things, but because the architect’s documentation usually co-ordinates the input of others, the architect is required to exhibit prudence and competence in that task. The level of skill required is that of a competent architect engaged on a similar project: it is not necessary to “second guess”, nor to take responsibility for the inputs of others.

Sources of information from “others” includes – but is not limited to – technical data from trade suppliers, input from specialist consultants (eg engineers), local body records and requirements, and the owners/clients/users. The limitations of such inputs are that the information may be of a generalist nature applicable to all projects; based on only a partial (and perhaps evolving) knowledge of project requirements; focussed only on the interests of the particular author or product; incompatible with associated construction elements; wrong, inadequate or inaccurate; require a level of accuracy or project resources beyond the usual; or some combination of any and all of these circumstances!

Examples from claims where this reliance and co-ordination has created a liability:

• The allocation of responsibility for co-ordination needs to be clearly acknowledged. To what extent does it fall to the project manager, or the architect, or is within the scope of other specialist consultants? Who is observing the contract (and to what level)? Who is administering it? Examples: geotech advice via structural engineer to architect or PM; QS input in relation to design constraints; PM/client instructions to design team; separate contractors versus sub-contractors or nominated subcontractors.

• Wind and corrosion zones affect weathering details and fixing requirements: those shown on the TA maps may not be appropriate to a specific site, or for a particular feature of the building.

• Minimum deck or roof falls permitted by trade data or building code compliance may not be appropriate. Consider (at least): moisture held by wind-blown detritus; substrate or structural deflection; applied finishes (perhaps tiling); construction tolerances; penetrations; perimeter detailing; expected level of installation workmanship; post-construction foot traffic; expected level of maintenance; faith in the likely performance of the product; possible heavy short-term weather events…..

• Standard details: Suppliers provide these to copy/paste into drawings but it is still necessary for the architect to be satisfied they are suitable. If it is necessary to “tweak” them to suit the project, they are no longer “standard” and may not fit within the compliance statements offered by the supplier. Similarly the details in the NZBC Acceptable Solutions.

• Certificates, Appraisals, Codemarks, warranties and guarantees: What will happen if these are required but not provided? Are they current, relevant, enforceable, applicable or worth anything? We have had claims where such things have been withdrawn or expired before (or soon after) design but before the product failed; others where the product was covered but not its installation; others where overseas documentation was not appropriate for NZ. Where such documents are subject to ongoing maintenance, that needs to be known to those responsible for it.

• Design-build: the integration and coordination of façade panel systems, roof sandwich panel systems, window assemblies and other elements may be dependent on preliminary information which may create later difficulties. Whilst the detailing of each element may work, mixing and matching them might not, and may prevent the issue of a completion statement. It is by no means unknown for design-build proposals to be withdrawn or substituted. Or unrealistic. These constraints need to be acknowledged ahead of time so that they can be resolved in the usual course of business, instead of being a problem later on.

• Dimensional tolerances: Where the installation of one item is dependent on another there is a need to accommodate variances and construction requirements. Structural deflections are a reality, as are dimensional deviations, moisture-induced movement and long-term creep. A well-considered design should be easier to build and continue to function as expected.

• The owner’s understandings of boundary positions, covenants and cross leases, relationships with neighbours, or applicable workplace/usage regulations may be inadequate or wrong. Where these are critical to the project, the architect needs to have the proper legal or surveying advice.

• When the architect’s conception of a suitable design/material/detail is supplanted by the client’s specific direction, it needs to be on record that the responsibility for that design decision lies with the client not the architect. Better still if the architect’s objection is made known along with the reasons for it. A similar situation may apply with project managers, other consultants, and to substitutions by the builder.

• When project documentation proceeds on the basis of outline information provided by a specialist consultant, it should be reviewed before work is done on site, and signed off on completion by that consultant. (Fire engineering is a typical example). If that is not done, there is a good chance the architect will become embroiled in the later shortcomings.

The short point is that the architect should not blindly accept and incorporate inputs by others, but in each case consider whether it is reasonable to do so. The role includes seeking clarification, weighing priorities where there are competing or conflicting issues, alerting others to their responsibilities, and refining the project parameters where necessary. To be blunt, it also requires good records to cover your backside if things go wrong!

Covid19 project impacts

Covid19 project impacts

Our focus is on architectural risk management.
All architects should communicate with clients to alert them to the potential for project difficulties as a result of Covid19, whether projects are in contemplation, in design phase, or underway on site. In doing so, do not make representations about the expected outcomes: everything is uncertain and subject to review as information develops.

Covid19 effects are a risk that clients will need to accommodate: if you have alerted your client, they are on notice that they have an obligation to mitigate their risk. It is easy to imagine that this will tip some clients and projects into danger territory, and generate argument of how the problems were dealt with. There is the prospect that they defer or abandon the project.

In addition to the logistical issues around project delivery, there are risk management issues for architects: if variations or extensions of time are granted, the principal may later seek to recover consequential damages on the basis that they were not justified, or arose out of the architect’s actions or inaction. It is foreseeable that, in addition to the contractor’s material and manpower difficulties, reduced staffing in the consultant team may be at the root of the delays.


Some legal firms have relevant articles on their websites; the NZIA has published (20/03/20) a Notice to Practitioners on “Managing the Impact of COVID-19 Outbreak on Construction Projects in New Zealand” which considers the matters in some detail; as does their Notice 23/03/20 in relation to Finance and Insurance, together with the embedded link to Aon’s Infectious Disease Response Task Force website.
• In respect of variations, substitutions to circumvent supply chain difficulties can be readily addressed as for any substitutions.
• The cost of variations instructed on the basis of an accepted VPR but yet to be carried out may require to be reviewed on the basis that the circumstances under which they were priced have changed.
• In respect of an extension of time claim, under NZS3910 an extension of time can be claimed under clause 10.3.1(g), which states “Any circumstances not reasonably foreseeable by an experienced contractor at the time of tendering and not due to the fault of the Contractor”, and NZIA SCC 11.5.1.k states “The Contractor may apply to the Architect to extend the time for Practical Completion due to a delay arising from ….. (k) Something else of significance beyond the Contractor’s control.”

Good in-depth record-keeping by contractors and consultants is a must. As is prompt, full, and timely communication. The sensible course of action for a contractor would be to apply for an extension (or repriced VPR) as soon as it becomes necessary to do so, and argue about the niceties of it later. That needs to be understood by the client and consultants.


Architects faced with a Covid19 EOT claim (or repriced VPR) should require the contractor to
• provide clear contemporaneous and verifiable support for the claim – if necessary progressively updated according to circumstances
• wherever possible “ring-fence” it so that it is separated out from payment claims and can be dealt with as a separate issue
• acknowledge and agree that a decision on the claim may be deferred until it can be dealt with on a reasonable and informed basis.


This would be a good time to re-acquaint principals and contractors with the payment claim and response requirements:
• If the contractor submits a progress claim under NZS3910 or NZIA SCC, then the Architect (or Engineer to the contract) is required to apply an independent mind to the assessment of the sum reasonably and fairly due under all the circumstances and in accordance with the provisions of the contract, and to issue a provisional payment schedule accordingly. The Principal may then either pay the assessed sum or direct the Architect to amend the Payment Schedule with a Scheduled Sum set by the Principal and which then must be paid; in this capacity the Architect is acting as the Principal’s agent.
• Any matters of difference can be dealt with at a later date under the dispute provisions in the contract.
• If you are not appointed to administer the contract, you might suggest that the contractor and principal re-read the provisions for payment claims in the Construction Contracts Act ss20, 21, 22.

Completion Statements by Architect

Completion Statements

When developer-driven housing projects cut out the architect for observation during the construction phase, it often turns out that they later require a completion statement in order to meet the terms of sale for the units. This task is fraught with problems: if you have not been involved in the construction as it happened, how can you possibly offer a sensible opinion on how that work was carried out?
No matter how carefully you seek to limit your completion statement to “what you can see, when you saw it” the pressure to expand that statement to meet the requirements of individual purchasers will be immense, and the interpretation of it several years later when things have gone wrong is beyond your control. Even if you were only required to certify in relation to fitness for occupation, inevitably the question will arise about why you did not – at the same time – see something else which (several years later) caused costly problems.
This is an issue that should be dealt with at the time you are engaged for the project, when the proper scope and risk management arrangements can be put in place. Hopefully the extent and purpose of your attendances during construction is clearly described. If it is limited in extent, that will be a very important matter to set down.
We have dealt with this many times before, and there is a longer paper on the matter on the NZACS website : https://www.nzacs.co.nz/practical-completion-certificates-a-repeat-caution/

On a similar issue, different clients (and/or their funders) have different ideas about what a statement of practical completion should say. Again, this is an issue that should be discussed at the beginning (so you can prepare for and charge accordingly) rather than near the end of the project, when you can be leveraged to your disadvantage. Clients have been known to demand a statement of practical completion – using their text – in return for a prompt payment of long outstanding fee invoices.
You will recognise what comes next: The short point is: the NZIA or CCCS terms are “neutral” and built up from many years of experience in projects of all types and sizes, so you should be VERY AFRAID of attempts by others to reinvent the wheel, with the prospect of unexpected and potentially unwelcome outcomes.
You can only “certify” on the basis of the work you have undertaken; so it would be useful to qualify any statements so as to make it clear that you are only commenting on the basis of (and to the limited extent of) the scope of work for which you were engaged. And if others have altered what you did in any way (with or without your knowledge), you cannot be responsible for that unless you have specifically accepted the change.
In the absence of a statement limiting your involvement, the chances are that you will be held to have been part of or party to something that may have not been within your control. For example, if a client changes an item unilaterally or contrary to your advice, you do not want to be later confronted with the assertion that (by default) you agreed to it.
Be aware that if it comes to a claim against you, there is every prospect that any and all of your documents might be available to the claimant, whether you agree or not. That means that correspondence, site notes and office memos must all be consistent: in the event of discrepancy or contradictions or ambiguities, the claimant will exploit those against you.
If your statements are reliant on information provided to you, then make that clear. To some extent you will have a duty to review and accept that information, in other cases you would be wise to accept it without review, but in all cases, you will need to be satisfied that it meets your expectations as a prudent architect.
You should not be making a statement which might suggest your taking responsibility for the actions of others. By way of example, let’s take the issue of a CCC by the BCA. It would be a simple statement of fact if you confirmed that a CCC had been issued; but you would most assuredly be putting the noose around your neck to state that a CCC had been issued “and all compliance requirements have been met”. If it is later found that the CCC was wrongly issued, your statement will join you into that problem. It is easy to apply the same principle to all sorts of warranties and producer statements by others, where the issue will be whether the contract requirements (or consultant requirements) have been met.
Similarly, if you have adequately observed the work, you could reasonably state that the contract requirements set out in the documentation provided by you under the terms of your engagement have, to the best of your knowledge and belief, (and if relevant, in reliance on listed documentation by others) been satisfied. But there is no reason why you should put yourself at risk by saying that the work complies with this or that law or regulation, or that it is fit for purpose and/or meets the expectations of anyone else.