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.