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A Loss Cause

by James B. Atkins, FAIA, and Grant A. Simpson, FAIA

There is a growing tendency among owners and contractors to believe that all discrepancies, errors, and omissions committed by a design professional are actionable offenses. This belief persists whether or not the owner or contractor is actually damaged. Increasingly, owners and contractors pursue payment from the designer for project costs including added scope, or betterment, with the belief that the documents produced should be pristine and contain no discrepancies of any kind. The reality is that construction documents typically contain errors and omissions, and the missing and corrective information is developed during the construction process. This reality is emphasized by the current edition of The Architect’s Handbook of Professional Practice (John Wiley & Sons, Inc) wherein it states, “It is important that all parties understand that construction documents are not intended to be a complete set of instructions on how to construct a building.”

Nevertheless, claims for errors and omissions are on the rise, and loss payouts are reaching new levels. Designers are being held responsible for a level of performance in their documents that is not only a higher standard than that required by AIA contracts, but is a level that cannot be achieved under any reasonable definition of ordinary standard of care. There is no industry standard as to what constitutes a “complete” drawing because the content of construction drawings is substantially infused with subjectivity and professional judgment. Consequently, it is impossible to provide the “complete” drawings which many owners and contractors mistakenly expect. Unfortunately, completeness is a seemingly finite, but in reality a very subjective and unachievable concept in the realm of design and construction. Drawings which are not quantitatively complete can be, and in fact are, used to construct buildings because they are sufficient for that purpose.

This article will examine errors and omissions in construction documents and the belief by many that the design professional is always and solely responsible. This overview is intended to enable a better understanding of the naturally occurring discrepancies that are considered by many to be avoidable errors and omissions.

The design concept


While the documents attempt to set out in detail the requirements for construction, the many variables imposed on the original documents lead to variations that often render a completed project that contains measurable differences. It is the design professional’s job, to determine that the work is in substantial conformance with the documents.

So how does the design professional accomplish this? When construction tolerances render conditions that differ from the drawings, manufacturer’s proprietary requirements creep into the picture, and local trade customs cause variations in assembly, it becomes obvious that a design professional’s documents cannot be used in strict measurement when determining conformance of the work in place. This examination of drawing discrepancies should make clear the widely misunderstood conceptual nature of construction drawings. In reality the design professional can only evaluate the work in place as an “interpretation” of the design concept expressed in the documents and not as a physical illustration of the design concept.

Construction drawings and contractor submittals


The process of converting the conceptual building design to a completed project is not achieved solely through the preparation of construction documents by the design professional. There is no way for the designer to know in advance of the contractor’s buy-out which product or building system will be available at the best price. Also, there is no way to determine precisely how the product will interface with adjacent products or systems. That is why the subcontractor prepares shop drawings that specifically detail dimensions and illustrate conditions of precise physical conformance. This process typically fleshes out conceptual variations in the designer’s drawings that may not, or possibly could not, have been previously determined. Thus the shop drawing must be expected to have some level of variance from the designer’s drawings. These inherent variances, or discrepancies, are often considered avoidable, and they are often judged by owners to be errors and omissions when in reality they are merely a product of the process.

Inherent discrepancies


Harmless discrepancies are inherent in architectural documents. Architectural documents are not intended to be a complete depiction of a real building project. They are intended to be a sufficient description of the project to allow builders to plan their construction and prepare the shop drawings as they manage and construct the project.

An example of a harmless discrepancy commonly built into a project is the use of fractions to describe dimensions. It is common to have a certain overall length that must be divided into three equal parts, and need a dimension that must describe each of the three parts. Convention in construction generally demands that dimensions be presented in units of a multiple of 1/8 inches thus convention makes it impossible to accurately describe a length that cannot be divided by three in even units of 1/8 inches. For example, when you divide 100 inches into three parts, it results in 33.3334 inches, which can closely (but not exactly) be described by a dimension of 33 3/8 inches. The result is a technical dimensional error of .0417 inches. In this case the designer has built an inherent error into the drawing. But has anyone been damaged by this action? Is not the error unavoidable and thus fully in compliance with a reasonable standard of care?

Another example involves partitions on a 1/8 inch floor plan drawn a set “scale” dimension of five inches apart. Actual partition construction is depicted in a partition schedule and the partition types have many different actual dimensions. Thus the plan might show a nominal five inch partition width at a 1/8 inch scale, while the larger scale partition type drawing reveals the actual width of the partition to be six and 1/8 inches, thus creating a graphic drawing error of one and 1/8 inches. The purpose of the floor plan is to locate the partition and the purpose of the partition schedule is to describe the partition. As long as the designer’s given dimensions numerically add up to the required dimensional location and clearances, regardless of whether the plan is “drawn to scale” or not, the information provided is adequate. The problem with drawing scale arises when the design professional allows the contractor to use her or his CADD files to prepare shop drawings. When the contractor begins to take measurement “picks” using CADD software, apparent discrepancies arise because not all building elements are drawn to scale. Most architects and contractors generally acknowledge that drawings are not now, and never have been, reliably drawn to scale. However, once again, the designer has introduced an inherent, although insignificant, error into the drawing. Again, has anyone been damaged?

It is reasonable to expect contractors to ask questions about the implications of such inherent errors when they identify them and cannot work out their own interpretation or solution to a perceived conflict. However, it is not reasonable to expect that any party would be damaged by such conditions. Yet it is obvious that anyone looking for such technical errors as examples of negligence will find many opportunities for pursuit.

Discovery impact in the construction process


The magnitude of damages associated with document discrepancies is greatly affected by when the variation is discovered. The following three examples will demonstrate this varying magnitude.

The first example concerns a drilled foundation pier that was inadvertently omitted from the foundation plan. Prior to drilling the foundations the contractor submits a Request for Information informing the architect that a pier has been omitted from the northwest corner of a stair, and asks for direction. The architect and structural engineer review the design and inform the contractor that the pier indeed has been overlooked and must be added. The contractor informs the owner that additional costs will be incurred. Since the mistake was addressed before construction activities had begun, there are no impact costs, and the owner is not entitled to recover the additional construction costs from the design professional, in the absence of extraordinary contract language to the contrary. The controlling issue is that the missing pier is in fact a requirement of the design, and if it had been originally shown on the drawings, the owner would have paid for it in the original scope.

The second example involves the same design condition. In this instance the contractor does not discover the missing pier until much later in the project after all the other piers have been drilled and forming of the grade beam has begun in the area of the stair. In this instance the designer’s omission of the pier causes a delay in the forming of the grade beam and will require the pier driller to re-mobilize for drilling one more pier. The costs for buying the additional pier out of sequence and for delaying the subcontractor forming the grade beam are considered to be impact or consequential costs. In this instance the owner is entitled to recover these costs, but not the cost of the additional pier since it would have been included in the original project cost had it been shown on the drawings.

Owners and contractors often mistakenly believe the absence of the pier on the drawings constitutes an actionable omission wherein the design professional should reimburse the full cost of the added work. In reality, as a general rule, only those costs incurred over and above the essential scope of construction may be rightfully recovered.

The third example involves the same condition, but this time the missing pier is not discovered until after construction of the stair above the grade beam has been completed. This omission results in the structural failure of the grade beam. In this circumstance the first cost of the pier pales in comparison to the catastrophic consequential damages incurred through delay and the removal and replacement of the grade beam and stair above.

These three examples illustrate the varying magnitude of damages depending upon when the problem is discovered. They underscore the importance of early detection and timely responses.

The clarification process


Most inherent discrepancies in architectural documents are minor and do not require correction of the drawings or specifications when they are discovered. Other discrepancies can be more serious and may require correction through the formal change process that is specifically addressed in AIA professional service contracts. These minor discrepancies may need no formal corrective action, other than answering AIA Document G728: Request for Information (RFI), or at most clarification through AIA Document G710: Architect’s Supplemental Instruction (ASI). (RFI is new to the AIA documents family. It is scheduled for publication later this year.) The existence and use of RFIs and ASIs anticipate these minor changes, and they support the conceptual nature of the designer’s documents.

Impact damages due to errors and omissions


There are occasions where damages from design drawing errors and omissions can result when there is no added scope. The damages can occur only after the construction is in place, and they can involve conditions such as areas of the project that do not conform to code. For example, it could be an inadequate door offset or an insufficient toilet room size. The solution is to relocate portions of the project to affect compliance, which will result in the same scope but only in a different location. The Americans with Disabilities Act has brought this type of problem to the forefront in recent years. This type of change represents impact or consequential damages because no new scope has been added. The damages are the cost for demolition, the cost for building the portion of the project a second time, and possibly increased costs for delay. In these instances the design professional should expect to be held accountable for such damages if she or he knew of the requirement when preparing the documents.

If a discrepancy should require more extensive corrective action, such as revising the drawings and specifications, the change process addressed in Article 7 of the AIA Document A201: General Conditions of the Contract for Construction, would be followed. AIA Document G709: Proposal Request, would be issued to the contractor, and upon acceptance of the quoted costs, AIA Document G701: Change Order, would be prepared. These AIA documents clearly anticipate that changes will likely occur on a project, and since errors and omissions occur on virtually all projects, the owner and contractor should recognize that these anticipated changes due to errors and omissions are a natural part of the change process.

When should a discrepancy be compensable?


We have examined how a discrepancy can occur in the documents but impose no damages. This type of problem generally does not warrant compensation as no party was injured. So when does an error or omission rise to the level of compensable damages? When a non-damaging error or omission is discovered, the owner should expect the design professional to provide all necessary design services for corrective action at no cost. They should expect quick action and an acceptable solution with all necessary documentation. Although many owners and contractors tend to believe that any error is a compensable cause of action against the design professional, governing laws typically mandate that recovery can only be made against actual damages.

Betterment


The cost of betterment (also known as added value or added scope) is almost always the responsibility of the owner. (“Betterment” is defined in Black’s Law Dictionary as, “an improvement put upon a property which enhances its value more than mere replacement, maintenance or repairs.”) Since both damages and betterment are often involved in an issue, the design professional is frequently viewed as the cause of the problem and thus inappropriately deemed responsible for all associated costs. If a portion of the costs involves work that would have been necessary to construct the project regardless of whether the mistake had been made, this work, or betterment, enriches the owner and should be her or his responsibility. Owners agonize when discrepancies are encountered late in the project and they feel that the designer should be responsible because no money remains to cover the costs. This is no justification for damages, and it emphasizes the importance of realistic contingencies.

When should an owner expect to be paid for “first costs” associated with their building? If an owner decides that she or he does not like white painted sheetrock walls in their newly completed home and directs the design professional to design a wood paneled wall to replace it, is the owner justified in expecting the designer to pay for the new paneling? Certainly in this example there are some consequential costs for taping, bedding, and painting the wall. However, the change is being made only because the owner changed their mind about the type of finish they desired and previously directed. In this case, one hundred percent of the cost of the change is the responsibility of the owner. On the other hand, if the architect had presented finish designs for approval early in the project and then neglected to detail and specify the wood paneling as was selected by the owner, the owner would be entitled to recover the costs of the unneeded taping, bedding, and painting. But again, as a general rule, the designer would not be responsible for the cost of the new wood paneling because it is betterment.

A common misunderstanding about betterment involves the cost of “putting things right.” Damages to an owner caused by an error or omission must be calculated not based upon the cost of replacement of the work affected by the error, but based upon the original cost of the erroneous work plus the impact or consequential cost of installing the new replacement work.

This is clearly illustrated in the case of an owner who hires an architect to design a house. The owner instructs the architect to specify gold plated faucets in all lavatories. When the project is completed, the owner discovers that pewter faucets of the same design as the gold faucets have been installed instead, and he demands that the architect pay for replacement of the faucets. The gold faucets are priced at $1,000 each at the plumbing showroom. The pewter faucets cost $200 each and cannot be returned to the vendor. The plumber informs the owner and architect that the replacement cost is $75 for each faucet. What is the actual amount that the owner has been damaged for each faucet?

In this case, the total damages to the owner for each faucet is $275 ($200 for the original unusable faucet plus the $75 labor charge). The owner must rightfully pay for the $1,000 gold faucet. An unfortunate misunderstanding in many disputes is that owners often believe the damages should be either $1,075, or $1,275, both of which represent unjust enrichment.

Consequential or impact damages


In the absence of specific contract language to the contrary when considering damages, the owner should not expect to recover the first time cost of building the project. The owner should only expect to recover costs which are incurred as a consequence of mistakes made by design professionals and which add no value to the project. Many owners mistakenly believe that if a design professional leaves something out of the construction documents the item becomes an ?omission? and the designer therefore should pay for the full cost of adding the item into the project. Under this scenario the owner would become unjustly enriched by the designer’s mistake. (The unjust enrichment doctrine is addressed in Black’s Law Dictionary as, ?General principle that one person should not be permitted unjustly to enrich himself at expense of another, but should be required to make restitution of or for property or benefits received, retained or appropriated, where it is just and equitable that such restitution be made?.?) Therefore, the owner should realistically expect to recover only the additional costs that are expended to add the item at the later date.

Summary


Errors and omissions will always exist due to the conceptual nature of the construction documents and the variables involved with the construction process. Tolerances, product options, and variations in trade installations will yield a completed project that can never be fully anticipated by the design professional and expressed in their documents. Drafting techniques and computer technology contain inherent variances that cannot be accurately resolved in illustrated dimensions. As a general rule, the cost of betterment, or added scope, will always be the responsibility of the building owner because only they will be enriched by it.

Design professionals should not be expected to provide perfect and flawless services or construction documents. Realistically, owners should expect and budget for a reasonable number of mistakes. Commercial developers, building managers, and owners who are savvy to these realities utilize allowances and contingencies to effectively manage this process. That is the design professional’s drawings are conceptual, and not a ?complete set of instructions on how to construct a building.? Finally, neither the law nor the ordinary and reasonable standard of care places the burden of perfect performance of professional services on a design professional. Therefore, some level of imperfection must be expected. Though aggravating and seemingly unfair, owners must budget and pay for a reasonable amount of “errors and omissions” when they undertake a project.


James B. Atkins, FAIA, is a principal with HKS in Dallas. He serves on the AIA Documents Committee and the AIA Risk Management Committee.

Grant A. Simpson, FAIA, manages project delivery for RTKL Associates in Dallas. He serves on the AIA’s Practice Management Advisory Group.

This article is reprinted with permission from the May/June 2004 edition of Texas Architect. Copyright 2004 by the Texas Society of Architects.

 

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