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Whose side is the Architect on?

Question: We are a developer specializing in strip retail centers. Because of the soft construction market, we have had quite a number of unfamiliar general contractors bid on projects. These new players are hungry for work and often submit bids that are extremely competitive. We always go with the low bidder and have had no problems until now.

The general contractor on our most recent project has been getting approval for questionable change orders, many of which could easily qualify as being part of the original scope of work, and has received payment for the percentage of work that we feel has not been done yet. This is a problem for us as we believe he is taking advantage of the architect because the architect is able to make independent decisions on the project. To make things worse, the architect that we hired seems to side with the contractor quite a bit when we have a disagreement with the contractor. The architect has worked with this contractor in the past, and we used the architect’s recommendation in our final decision to award the work to this contractor.

It is frustrating to pay for the expertise of an architect, only to see him defend the failings of the general contractor. The expression “bite the hand that feeds you” seems to sum up our relationship with the architect. The project is barely halfway completed and we are almost at the point of firing the architect for his lack of loyalty. Is there anything we can do to get our architect to see things our way without derailing the project?


Answer: Before you point the finger at your architect, you need to understand what the architect’s role is. You seems have hired the architect to design the project and then to stay involved with the project during construction in a contract administration capacity. The architect is acting as your agent when approving change orders and pay applications. And, for this project, it seems you have also given the architect the responsibility to resolve disputes between you and the contractor.

In that capacity, the architect is considered a quasi-judicial officer, or in simpler terms, an arbitrator between you and the contractor to resolve disputes. In all of these roles, the architect must always act in good faith and be careful not to act negligently either in the providing of plans, or approving the contractor’s pay requests. If there is negligence, then the architect risks being liable not only to the owner, but also the contractor, or even the contractors’ surety in cases where the approved pay application exceeds the actual value of work done. The architect may also be liable to the contractor for causing the contractor increased costs and delays due to excessive time to review submittals or provide responses to critical requests for information. And, much to your dismay, when making decisions as to who is correct in a dispute between the owner and contractor, the architect’s duty is not just to the owner.

The architect must also consider the interests of the contractor as well. Even though the architect has no direct contractual relationship with the contractor, he owes a duty to the contractor to be fair and impartial when resolving a dispute. Thus, the architect has to walk a fine line between the owner and the contractor. Keep in mind that just because you have paid the architect’s fee, you cannot demand that the architect do only what you want it to do if doing so violates the architect’s legal obligations. By the facts you have provided, it does not seem to be a wise move to terminate the architect solely for his lack of loyalty to you. You could be in breach of contract by doing so, and your worries about whether or not the project will be completed “on-time and within budget” will be replaced with worries about the cost of litigation, which is where everything would probably end up. In the future, you may consider not having the architect play such an involved role during construction.

Your own project manager can decide whether or not to approve a change order submitted, or deny a claim for extra money or time, as well as approve the pay applications. However, I am guessing that you wanted to have the architect be actively involved during construction in order to relieve your company of additional administration work. But, as you are finding out, it sometimes comes with mixed results — especially when you want to be in control. If you would like to keep the architect involved during construction, you can have a contract provision with the contractor as to how to handle the dispute if one of the parties does not agree with the architect’s decision. There are also contract provisions you can use that would make the architect’s decisions on change orders and pay application subject to final approval by the owner.

That way, all the parties, including the architect, have a clear guide in how to handle these issues. A reader (in response to last week’s article “Liquidated damages —who do they protect?”) asked: “If LDs are imposed, would it also be acceptable/advisable for the GC to propose performance bonuses in the event the project timeline is ultimately shortened?” Answer: There is nothing wrong with asking for a bonus for reducingthe project schedule. What ultimately will dictate whether the owner agrees to it or not depends on the type of project. For example, an industrial project where there is going to be machinery that has a long lead time, or where tenants have leased the building on a certain date will probably not benefit by finishing early. On the other hand, if your portion of the work is on the critical path, and it will be apparent that the owner will benefit by being up and running earlier than originally planned, you may be able to attract interest in a bonus for early completion. Some public works projects, like those through Caltrans, can have substantial early completion bonuses in their contracts, making it very lucrative for a savvy contractor to find ways to complete the project early.

Do you have a construction question? Submit it to: info@construction- laws.com • • • Disclaimer The information in this article is based upon California law and is for general information only. Any information or analysis presented here is intended solely to inform and educate the reader on general issues. Nothing presented or referenced to, regarding facts, documents or applicable laws, constitutes legal advice. Before acting or relying on any information, including any information presented here, consult with a qualified attorney for your specific situation. Scholefield holds an active PE license in Colorado, an undergraduate engineering degree from the University of Florida, and received her JD from the University of San Diego. Source Code: 20080411tca

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