Category Archives: Law Notes

New NC Laws for Engineers, Architects, & other Construction Professionals (Tue Tip)

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[Note: This article was originally published on November 22, 2011]

NC flag

Today’s Tip is a big one….. a turkey-sized offering in advance of Thanksgiving.   At least 19 new North Carolina laws that effect construction professionals were passed this legislative season.  They run the gamut, including public project bidding requirements, building permits, code issues, and the use of design-build building methods.

Of particular note to Design Professionals:

Senate Bill 708/Session Law 2011-269 reconciles certain rules adopted by the Building Council relating to the January 1, 2012 effective date of certain portions of the 2012 Energy Conservation Code and the 2012 NC Residential Code.

House Bill 616/Session Law 2011-304, which modifies regulations for Engineers and Land Surveyors, including general requirements for licensure.

Check out the spreadsheet for the other construction laws.  You can go directly to the language of the laws from links on the spreadsheet.  Happy reading!

Photo:  Mr. T in DC via Flicker/CC. 

Construction, er make that CONTRACT, Administration services: a primer (law note)

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[Update 12:42 pm ET, 11/3/11– CA is for Construction Contract Administration, or “Contract Administration” for short- thanks Liz O’Sullivan]

 One of the Architect’s responsibilities on a construction project is that of construction contract administration (“CA”).  While not every contract contemplates the architect performing a CA role, most commercial construction projects do.  What, exactly, should be included in the CA role?  The CA role can be whatever the parties agree upon.  In fact, the AIA A201 form contract documents anticipate that the architect’s role will be defined in an exhibit. 

Construction Construction Contract Administration
§ 4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect’s responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents.
What, then, should be included in the CA role assigned to the architect?  The nature of the construction administration role is project specific.  Some projects require a full-time on-site architect, a clerk of the works, or a weekly or bi-weekly site visit.  Because the nature of the CA role cannot be adequately described in a form document, it is especially critical that you take care to describe the specific CA duties assigned to the architectural team in detail.
site observation by architect
 
One of the main CA roles for the design team is that of site observation. Consider:
  • What frequency is contemplated for visits?
  • How long should those visits last? 
  • What is your role during such site visits?
I see many disputes that arise over a misunderstanding as to how often the architect should be on-site, and what his role is in observing the contractor’s work once he is there.  Again, being specific will only help you to avoid misunderstandings, possible litigation, or even extra liability later on.
 
Perhaps the most important concept to remember for your CA role on a construction project: never agree to “inspect” the contractor’s work.  Your role should be observation to see that the work is in general conformance with your design.  You cannot guarantee the contractor’s work (nor would such be insurable).  Therefore, be careful to use the word “observation” and not the word “inspect” in your CA description.
 
What have been your construction observation experiences? Drop me a line and tell me your story.  (And thanks to my many new readers to the blog this week!).
 
 
 
 Photo (c) Mark Hogan via CC.
 
 

 

Standard of Care for Engineers- the Jury Instruction (law note)

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Not perfection I’ve previously talked about the standard of care for design professionals on construction projects. 

As you should be aware, the standard is reasonableness, not perfection.  To illustrate the point, consider a standard North Carolina jury instruction on the standard of care for engineers:

 “Under our law, a professional engineer is required to exercise that degree of care which a professional engineer of ordinary skill and prudence would exercise under the same or similar circumstances, and if the engineer fails to exercise such degree of ordinary skill and prudence under the same or similar circumstances, the engineer’s conduct would be negligence.”

For an architect, just substitute the word “architect” for “engineer” in the jury instruction above.    Sometimes it can be challenging to meet a client’s expectations, and some clients believe that plans should (and can) be perfect.  In your discussions about the project with the client, be sure the client has reasonable expectations.  It is not reasonable to expect perfection in design plans.  Unforeseen conditions, changing criteria, and differing code inspector interpretations are all to be expected.  Educate your client about typical errors & omissions at the start of the construction project.
 
Do you have a question about the standard of care?  Drop me an email at mbrumback@rl-law.com.  Be sure to sign up for email delivery of blog posts directly to your inbox so you never miss a post!
 

Scope of your Design Services: Make Yours Detailed to Save Cavities Later! (Law note)

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I’ve written in the past about the benefits of having not only an explicit Scope of Work, but also a set of Exclusions from the Scope of Work, in your proposals and contract documents.  Recently, this issue has come up again for me in the course of advising clients who are now facing litigation over whether or not a particular service was to have been part of their lump sum design fee.

scope mouthwash versus scope of services
Do you know what is in your Scope of Services?

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The Scope of Services (and related Excluded services) should be as detailed as possible.  Consider all of the typical issues that can derail a project, and address them upfront, such as:

  • Additional Services: are they needed? How are they compensated?
  • The Proposal v. the Contract Description—which prevails?
  • Value engineering issues — does the designer share the credit?
  • Extended construction: Is A/E paid for extended delays leading to additional on-site administration?
  • Contingencies & Assumptions included in the design?
  • Number of bidding rounds included in the A/E’s fee before additional compensation is due?
  • Delivery of Owner equipment (Fixtures, Furnishings & Equipment) and delays associated with same?
  • Safe harbor provisions for expected errors & omissions?

This is just a short list of items to consider when drafting your Scope of Services. Remember, an ounce of prevention is worth a pound of cure, so make sure your proposals and contracts have thought through the entire scope of possible services prior to starting work.

 Thoughts? What issues have you run into on construction projects that could have been prevented with a good Scope of Services provision?  Share below.  
 
 
 
Photo (c) mandolux via CC.

Protecting your Copyright in non-standard Construction Contracts (Law Note)

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copyright symbol exploadingLast week I discussed copyright issues under ConsensusDOCS and AIA form contracts.  This week, we’re taking a look at how to protect copyright in your design documents when you are not using a standard form contract.

If I’ve learned one thing about working with a lot of design professionals over the past decade, it is that many of them– too many– are just plain too nice.  That’s right, too nice.  They send polite letters of proposal to the client, and then begin work on a handshake deal.  Or, they willingly sign on to the Owner’s contract without pushing to negotiate more favorable, mutually beneficial contract terms.  Under the maxim that “no good deed goes unpunished,” sometimes such clients are giving away their copyright ownership without being appropriately compensated.

Unscrupulous, or at least naive, owners sometimes believe that because they paid for design documents, they own them and can use them for any purpose.  This, of course, is *usually* not true.  However, sometimes the owner agreement states that the designer’s work product is created as a “work for hire” or otherwise provide that the owner has an unlimited ability to use the work product regardless of the circumstances.  Such clauses should either be removed altogether or negotiated up front, with appropriately compensation being provided for such copyright ownership.

If you are working under a letter proposal, it should at least include language indicating that the design team maintains ownership rights in the design documents.  Further, you should make explicit that the owner has no right to continue to use design documents in the event the owner terminates your contract unless and until full payment for such documents is given to the design team.  Even better would be a requirement that the owner indemnify the design team from any unauthorized use of the design documents.  (Hey, a girl can dream, can’t she?).

Most importantly, realize that without the built-in protections of the standard agreements, it will be much more difficult to enforce your copyright ownership in your plans & drawings.  For a few moments extra work on the front end tweaking your letter proposals or negotiating your owner contract, you can save countless hours of heartache on the back-end.

Do you have standard copyright ownership language in your non-form construction contract?  Ever had to fight copyright issues with the owner? Share in the comments below.  And, if you have not already done so, sign up for direct email delivery of blog posts right to your in-box.

Photo (c) Jens Rydén via Creative Commons license.