Architect ‘s liability in C 401 - Architect consultant Agreement

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    Michael Ermann

    For the first question. . . There may seem to be a conflict as to who's responsible (subcontractor or architect) but there really is no conflict. It's just "positive ambiguity." Let's say you book a trip on American Airlines. The day you travel the contractor that the airport hired is severely understaffed and there aren't enough people on the tarmac to direct airplanes and there aren't enough workers to drive that little car that tows the airplanes in reverse. You sit on the tarmac for 4.5 hours, seemingly for no reason. You are angry at American Airlines and want to hear nothing about understaffed contractors; AA is who you paid and you are mad at them. The airline is mad at the airport; the airport is who AA paid to lease the gate. The airport is mad at the contractors; the airport paid the contractors and they're the ones who goofed on the staffing schedule. More than one person can be responsible when you are looking from more than one vantage. If the consultant messes up, it will be her (or her insurance company) who ultimately pays, but from the owner's point-of-view, it's the architect's fault. If damages need to be paid, the architect's insurance will pay the owner and the consultant's insurance will reimburse the architect's insurance. That's the whole idea of "privity of contract". . . each person can be made whole only by the others they contract with, and that chain continues until everyone is paid.

    And for your second question. . . let's turn it into a NCARB-style test item and answer your question with another question. . . 

    An owner, intent on constructing an arboretum through design-bid-build project delivery, hired an architect with the B101 Owner-Architect Agreement. The owner also hired a contractor through the A101 Owner-Contractor Agreement. The architect hired an electrical engineer through the C-401 Architect-Consultant Agreement. The team is unsure if the site possesses access, in its current state, to support the outdoor electric lights that will be used to illuminate the gardens at night. Who should coordinate with the utility to ensure power availability at the site?

    Electrical subcontractor

    Electrical engineer

    General contractor

    Owner

    . . . scroll down for an answer

     

     

     

     

     

     

    A: Electrical engineer

     

    Explanation:

    This one’s a bit of a surprise because the consultant is rarely the right answer. The GC holds responsibility for means and methods of construction and the owner holds responsibility for all things existing on site. But we hire expert consultants, like electrical engineers, to tackle technically involved design decisions, and this falls squarely under that umbrella.

    In practice, the owner may be involved with the electrical engineer. . . And if it were a single-family detached house, the GC may work directly with the utility company to determine where power will come from and where the electrical meter will be at the house. . . but this scenario wouldn’t play out with a residence because I can’t imagine a situation where the utility offers power to the site but not enough of it to power a single-family house. 

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    Prajakta Dabhade

    Thank you Gang Chen, Rebekka and Michael for your responses. Michael, your example is outstanding and thnak you for taking the time out to type a detailed explanation. I highly appreciate all your time in responding to me. Thank you!

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    Gang Chen
    1. We are talking about two different contracts here:

    For the owner-architect contract, the architect is responsible for everything he is contracted for, including SEMP if that is part of his scope of work. This is no question about this at all. If the owner asks the architect to pay for the architect’s consultants’ errors, the architect has no other choice but to pay the owner. For the owner, it does not matter the error is the architect’s or architect’s consultant’s, the architect is the one responsible for the error.

    After the owner-architect contract is signed, then the architect subcontract SEMP out to his consultants. In this contract, each consultant responsible for his own work, and architect is not responsible for any of the consult’s work, that is what the paragraph you quoted is talking about. In fact, the paragraph you quoted is the basis for the architect to seek money from his consultants for damages.

    So, you really need to read the ARE question carefully, and pay attention to which contract the question is referring to.

    1. Either the electrical engineer or the dry utilities consultant should coordinate with utility company to ensure there is enough electricity supply to the site. The utility company will provide a fault current letter that indicates the related information. This letter takes a long time, so ask for it early.

    Gang Chen, Author, AIA, LEED AP BD+C (GreenExamEducation.com)

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    Rebekka O'Melia

    Hopefully someone checked on the electric supply before the site was purchased, otherwise the owner will have to pay to bring electricity to the site.  Survey done by site engineer even should show that.

    Realistically, the consultants and the architect are both responsible.  See:

    We are responsible to the owner, and the consultant is responsible for their work.  I have seen in practice an architecture firm lose a big client over the repeated failures of an MEP consultant that did a poor job coordinating their work.  The architecture firm did a lot of coordinating, and the consultant did very little coordinating and couldn't keep up with the extremely accelerated workflow.   Sometimes hiring the cheapest consultant becomes very costly.

    Hope this helps!

    Rebekka O'Melia, Registered Architect, NCARB, B. Arch, M. Ed, Step UP,  Step UP ARE 5.0 Courses

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