Who is responsible for consultants?

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    Kurt Fanderclai (Edited )

    Hi Francis -- The architect is responsible for his/her consultants work when viewed from a B101 contract veiwpoint -- B101 3.1 lays out that MEP is part of Basic Services.  Owner contracts with Architect.  Architect is responsible for MEP design work.

    But then, on sort of an "second-tier" level, the MEP consultants become responsible to the Architect in a relationship that is very similar to the Owner-Architect relationship -- see C401, 3.1.  The 1.4 verbiage is relative to this relationship -- the Architect is responsible to the Owner for MEP design work, but then the Consultant is similarly responsible to the Architect, and per 1.4 the Consultant is responsible for their own errors.  

    Also, if I'm following correctly, I think your last paragraph is essentially correct.  The correction of errors gets paid for by Owners, and then they may attempt recovery from the A&E team.  

    Also note the difference between errors and omissions.....and study the Standard of Care, and the Spearin Gap.    All relate to this thread.

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    Kurt Fanderclai

    Francis -- where are you at in the exam process?

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    Ancil Hogsed (Edited )

    Is section 1.3 of the C401 stating in a very confusing way that both the architect and owner are equally responsible to the owner? Or if there is a dispute with one, the dispute also applies to the other? 

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    Francis Pham

    Hi Kurt,

    Thanks for the input. I've followed a lot of your posts! I'm glad you agree with what I thought. I get thrown off when the practice exams asks you who the contractor should charge, be it the contractors sub, owner, architect, or architects consultants. My initial question with these questions is ...who has a contract with who? There has to be a contract with the contractor for the contractor to "go after" the opposing party. Also keeping in mind indemnification and wavier of claims. I will definitely refresh my memory on errors and omissions.....and study the Standard of Care, and the Spearin Gap.

    As for where I am in the exam process. I took CE 2x and failed. I've taken PA and have also recently failed. I've passed PCM and PJM. Trying to stay positive and continue pushing through. 

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    Mitulkumar Patel

    Francis,

    based on my understand of A201 definition of Contract (i believe its 1.something) , the contractor cannot go after the architect for error or omissions. So in reality what will end up happening is a giant game of tag.  lets say the contractor is working on installing plumbing fixtures in a bathroom and he notices that there are 3 supply lines for water closets but 2 drains... he issues RFI asking how many toilets need be installed, you look at your code data sheet and drawings and they call for 3 water closets. So a change order is issued, the contractor asks for more money to the owner (the 2 people who entered into an agreement A101).  Then the owner bill the architect (the 2 people who entered agreement B101) under standard of care / errors and omission clause.  Then finally the architect tags MEP (the 2 people who entered the agreement).

    *** more then you need to know now moment***

    the architect could also point the finger back to gc by saying well my drawings so 3 water closets and you should have known you needed 3 drains, under section 3 of A201 somewhere it says that the contractor has reviewed or will review the document fully before starting work.  So, the gc should have caught this long before getting to this point.  

     

    Just remember, unless its tort, only the people who have signed the contract can be held liable to each other... (there is a specific term for it i cannot recall at the moment).

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    Kurt Fanderclai

    ^

    In Article 3 of A201 describes the Contractor's obligation regarding becoming generally familiar with the site and the docs, as well as reporting known discrepancies in the docs.  So, it would be a very small likelihood that a single drain omitted on the drawings would be a good example of the Contractor's shirking of that duty.  

    "Then the owner bill the architect (the 2 people who entered agreement B101) under standard of care / errors and omission clause."

    B101 2.2 lays out the concept of standard of care -- ordinary professional skills expected under similar circumstances.  Reasonable, but imperfect drawings are the expectation.  Also note that errors are not the same thing as omissions.  Note the concept of betterment.  Also Spearin Gap.    So, in your example, the circumstance of a single omitted drain would not directly lead to the client "billing the architect".

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    Mitulkumar Patel

    Kurt,

    I might have used a bad example, but i was just trying to explain the chain of events that would have to take place for consultants to be held liable for their mistakes. But, yes you are right, no one is going going to go through the trouble for something so simple.  It would be hard for owner to prove fault of contract in that example.

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    Francis Pham

    Kurt,

    I recall you stating that an error is something that needs to be fixed. Omission is something that is missing. I wanted to make sure I understood the concept of Betterment and Spearin Gap.

    The concept of Betterment is that in a case where the architect omits something or shows an error in their drawings in which the owner would've paid for initially, the architect can argue the case for Betterment when the contractor requests payment from the owner for the error or omission of the architect.

    The concept of Spearin Gap is that the drawings the owner receives from the architect is within the standard of care. The drawings are not completely free from errors. The drawings are sent to the contractor to build. The owner is liable to the contractor for the errors or omissions from the drawings unless the architect is proven negligent.  

    Is this correct? 

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    Kurt Fanderclai (Edited )

    Hi Francis -- I also appreciate your careful and direct wording in your posts -- no one will get through this crap without getting used to words having actual meanings, and being able to reference the AIA docs specifically, etc.

    Anyway, I believe you are correct.

    The Spearin Doctrine (702 in AHPP) is probably too esoteric for most of us concerned with the ARE and general practice, but it does highlight an extremely important concept we should all have stuck in our heads.

    It said that Contractors receive an implied warranty of defect-free drawings from the Owner. But as I noted above, the AIA doc B101 2.2 lays out the concept of standard of care -- ordinary professional skills expected under similar circumstances, where reasonable, but imperfect drawings are the expectation -- NOT defect free drawings.  The Owner pays for errors and omissions within that gap, the Spearin Gap.  (Or, Francis, as you've noted, unless, until or if the Architect is proven negligent.)

     

     

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    Brittany Varengo

    Was there ever an answer to this question? It seems that the B101 puts the responsibility in the Architects hands but then the C401 passes the responsibility to the Consultant. Its so confusing!! I wonder where NCARB wants us to stop. Are we sticking within the 3 main players of the Owner, Architect and Contractor? Or do we go further down and go to the Consultant? 

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    Michelle NCARB

    Brittany,

    You'll want to familiarize yourself with roles and responsibilities of the owner, architect, contractor, and consultant.  Refer to the last page of the ARE Handbook for a list of contracts relevant to each division of the ARE.

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