What does NCARB want? A-201 & B-101

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    Steven Dumont

    What a coincidence, I was listening to the same lecture (Shiff Hardin?) this morning.

    We had a discussion about it in my office this morning as well. I think Michael's suggestion is a good one, it balances legal and moral responsibilities.

    My office is a small residential firm in a somewhat rural area (comparatively), so we do things much more informally. For example, we routinely (yes, against the rules of the AIA documents) ask G.C.'s to fix or change things we don't find to be meeting the construction document's intent, without talking with the Owner. It just gets done. We have good relationships with contractors. This is just how things are done around here.

    What I'm trying to say is (and someone may jump down my throat here) how you respond to situations like that may have to do a lot with where you are practicing, what the project size is, project type, and what the norms are for that area. This is obviously totally against the AIA. Just my two cents.

    Steven

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    Darguin Fortuna

    Those lectures are amazing arent they! I agree with you but thats not in alignment with NCARB and AIA of a wholistic profession acting as a professional body. If we did what we wanted at each state, location or place then we should have exams for each state, location or place. 

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    Darguin Fortuna

    I really want to know NCARB's process to developing these questions and like what is the HAT you ware because I have encountered many items that create lots of discussion and argument I wish items were more obvious or more clear relating what the answer is even for a construction lawyer. I thought Mike would pass the Contract sections of the exams just by listening to his lectures but now I also see that he could fail many items because he is looking at it from a Lawyers perspective and not from NCARB's perspective of an architect.

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    Steven Dumont

    The lectures are a great back up source, and as I have a long commute, great to listen to as I drive.

    As you know, from an AIA standpoint, you ignore safety violations. It is not your job. Your insurance company will tell you the same. I would imagine NCARB thinks the same?

    Here is some good reading I found

    Design Professional Responsibility

    Design professionals and professional consultants also need to take precautions against accepting responsibility for the safety of anyone other than their own employees. Numerous court decisions have addressed the question of whether a firm such as an architect, engineer or CM has liability for someone else’s employee despite not being directly or even indirectly responsible for causing the injuries.
    The first question addressed by courts is whether the contract between the consultant and the project owner established consultant safety responsibilities. Even if the contract language clearly states that the consultant has no responsibility for project site safety and the contractor is solely responsible (e.g., AIA B 101-2007, § 3.6.1.2 and AIA A 201-2007, § 11.1.4), the court will not stop there with its analysis. Rather, the courts will look at the facts of the case to determine whether the consultant did anything or should have done anything in the field during construction affecting site safety.

    Contrasting Opinions of Courts in Different States

    Courts in different states take very opposite positions concerning the responsibility of the design professional for safety during construction. In Carvalho v. Toll Brothers 278 NJ Super. 451(1995), the New Jersey court found under the contract the Engineer had authority to stop work that was not in compliance with the specifications, and that by common law the Engineer had a duty to take action when confronted with a dangerous condition with which he has actual knowledge.

    In sharp contrast to the Carvalho holding , the Pennsylvania court in the case of Herczeg v. Hampton Transportation Municipal Authority, 766 A.2d 866 (PA Superior Ct. 2001), concluded that even where the engineer had actual knowledge of the dangerous condition that led to the death of a construction worker, the engineer owed no duty to the construction worker.

    The Pennsylvania court said, “We reject any notion that a duty arises solely upon an engineer’s actual knowledge of dangerous conditions. If someone is under no legal duty to act, it matters not whether that person is actually aware of a dangerous condition. Conversely, if someone by contract or course of conduct has undertaken the responsibility for worker safety, that person may still be liable even in the absence of actual knowledge of the dangerous condition if they should have known of the condition.” The court made a point of explaining that the contractual authority of an architect or engineer to reject work that is not being performed consistent with the plans and specifications is solely for the benefit of the project owner.

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    Kurt Fanderclai

    Article 10 of the A201 begins with "Construction safety is the responsibility of the Contractor".  So, there is no duty on the part of the Architect per the Contract for the Work in question.

    However, NCARB Rules of Conduct begins with Rule 1 Competence, 1.1:  "In practicing architecture, an architect's primary duty is to protect the public's health, safety, and welfare."

    It's one thing to have no contractual duty for maintaining on-site safety.  However, as an architect bounded by a clear set of professional ethics, it's quite another thing to become aware of something that jeopardizes public health, safety, and welfare, and choose to do nothing.

    I would argue that the AIA is not directing us to ignore on-site safety issues which have come into our awareness, but rather only that per the contract, we cannot attempt to control these situations directly.  Within the Standard of Care, there is always a set of actions that satisfies your attorney and insurance agent, while still maintaining your ethical duty as an architect.  

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    Darguin Fortuna

    Can NCARB please contribute to the discussion? Their position is ultimately what matters for us candidates.

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    Kurt Fanderclai (Edited )

    Beyond their published statement?  

    NCARB Rules of Conduct begins with Rule 1 Competence, 1.1:  "In practicing architecture, an architect's primary duty is to protect the public's health, safety, and welfare."

    Darguin, what are you looking for them to say?

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    Darguin Fortuna

    Do we follow the contract or do we follow our Rules of conduct? Our rule of conduct in this case can cost us our practice ( A big law Suit)

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    Kurt Fanderclai (Edited )

    Hi Darguin,

    I think you need to re-frame your questions and viewpoint.

    As an example:  "Do we follow the contract or do we follow our Rules of conduct?"

    As you look for understanding on any topic, I think you will want to be careful not to begin with this sort of question.  Your premise appears to set the AIA and NCARB at complete odds with one another.  Is this premise likely or even possible? 

    My Friday 13:48 post points back to the advice of the Schiff Hardin lawyer -- I think his name is Michael Hanahan.  Essentially, his advice would help you to satisfy both your duties relative to a specific AIA contract, and your duties as a professional architect.  Contrary to the premise of your above question, this happens every day in practice without conflict.     

     

     

     

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    Michelle NCARB

    Hi all,

    Great discussion here, and Kurt, you're on the right track.  The NCARB Rules of Conduct and your contract with a client are not mutually exclusive.  I'll throw one other document into the mix: the AIA Code of Ethics.  It's listed in the Handbook and available for free on AIA's website.  It includes commentary on these same issues.

    As far as the exam: if the context of an exam question is relevant, the information will be provided to you - i.e. "Based on X document..."  Does that help?

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    Stephen Parra

    As an ARE candidate I agree that pro-rep and contractual duties are not be mutually exclusive. But as a third year law student, I can tell you that depending on the jurisdiction, a good lawyer arguing for an injured worker could probably convince a jury that an architect who records the existence of a dangerous condition and does nothing about it is at best contributorily negligent for any injuries that arise from the condition, at least to the extent that B-101 §3.6 can be construed to give the architect the "authority" to stop the work in the interest of the owner who stands to incur some liability for those injuries.

    The nightmare scenario is the one where the architect records the dangerous condition and brings it to the contractors attention. The contractor agrees to fix it and then forgets about it and then an employee or sub gets injured. Now does the injured sub sue the general contractor who gives him tons of business, or does he sue the owner of the site and the architect who has an ethical responsibility to protect his health and safety and who knew about the danger and could have acted but didn't.

    This is a tough spot to be in. On the one hand if architect stops the work, the owner may get angry and the project may be held up leading to a lawsuit anyway. This is probably why the lawyer suggested initially approaching the contractor informally and then following up rather than recording the condition or preemptively escalating to formal action.

    But suppose the architect instead of recording the condition saw it and had turned a blind eye…wouldn't this be an ethical violation and potentially a “negligent act or omission” under B-101 §3.6.1.2? Or a failure to report to the owner “deviations from the contract documents" or "defects and deficiencies in the work”?

    The AIA's Official guide to the 2007 Contract Documents offers some interesting discussion along these lines and also discusses the importance of indemnity agreements between the contractor and the architect. While the contractor is, strictly speaking, responsible for site safety under A-201, the architect is not a party to A-201 and the injured worker can sue whomever he wants. Without an indemnification the best the architect can do in this situation is point to A-201 and say “but wait I have nothing to do with site safety!" Even then the enforceability of indemnity agreements depends on the jurisdiction and of course by the time you're invoking your indemnity clause you've already been sued! Contract language is powerful but it's no substitute for communication, diligence, and concern for others!

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    Kurt Fanderclai (Edited )

    But suppose the architect instead of recording the condition saw it and had turned a blind eye…wouldn't this be an ethical violation and potentially a “negligent act or omission” under B-101 §3.6.1.2? Or a failure to report to the owner “deviations from the contract documents" or "defects and deficiencies in the work”?

    Your two options leave out the third:  The Schiff Hardin Lawyer is suggesting a prompt but verbal heads up -- not recording it.  No contractual duty, yet still fulfilling the ethical duties toward health, safety, and welfare.  

    B101 spells out the lack of contractual duty toward on-site safety, so a charge of negligence would not apply.

    As far as stopping the Work -- 2.3 in A201 -- that's the realm of the Owner only, and not the Architect.  Work not in conformance gets reported to the Owner by the architect -- if this happens a lot, the Owner can stop work via written notice.    

     

     

     

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    Darguin Fortuna

    Well put Kurt,

    I think Michelle's point makes it clear. Whichever the resource is that we have we will follow those guidelines. It is not that the codes of ethics and the contracts are at odds its just that it can get a little tricky. I am not responsible for means, methods, and safety as per the A201 and I wont get into any of that. I also do not want the contractor to step into my design realm so the lines are very clear we can informally talk about things but never take contractually each others role away from where it belongs. 

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