Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

Limiting Services Can Lead to Increased Liability

Nick PacellaFor this week’s Guest Post Friday Musings, we welcome Nick Pacella. Nick is an architect licensed in New York, New Jersey and Connecticut. His practice has spanned several economic swings and he has been able to reposition the eggs in his basket to make the most of each recovery. He is currently focusing on adapting existing commercial buildings to take advantage of materials and processes that promote improved energy efficiency for both the owner and the tenants. For a more colorful rendition of projects you can visit his company’s website,

I remember as a kid when the attendant at gas stations would not only clean your windows but also check the oil level of your vehicle as it was filling up with $0.25 per gallon gas. (I did say that I have seen several economic swings) These services have mostly disappeared, and to no great effect to your car since most cars go much longer between oil changes. Other than a slightly dirtier windshield it hasn’t affected your ability to drive and maintain your car.

This is not so with professional services. Architects used to include many services that are now sourced to others. Project Management, Owner’s Representatives and Program Managers now populate the landscape. In many cases they came to be because architects either did not provide the service their client’s were looking for or they allowed themselves to be put into an adversarial relationship with their clients. They were likened to foxes watching the chicken coop, especially for project management and owners representative services. Client’s have had others buzzing in their ears “are architects really going to look out for my interests above theirs?’” Of course the clients never ask if the new wave will do any better at rallying behind their interests.

For the most part Owners Representatives and Project Managers are well trained and offer a dependable service, but the issue still remains; is the architect still a part of the main team in terms of the dissemination of information? The more information from the client is filtered as it is passed on, the more dissimilar it is to the original. Just think of any game of ‘telephone’ and how the first phrase that is whispered is mutated and transformed by the time it reaches the last pair of ears. This becomes even more disjointed if the disseminator is deciding what information each person ‘needs to know’. I have worked with many skilled PM that can do this well. Unfortunately, I have seen a trend to hiring younger and less experienced (cheaper) staff that is not experienced. Information is portioned out so as to protect their interests/job and not those of the client or the project. In the end the architect will be held responsible for a design that does not meet the clients needs even when he did not receive all the pertinent data.

I also see a disconnect happening at the construction administration side of projects. This time it is more of a cost saving move by owners who may have facilities staff and feel they don’t need CM services from the architect. Decisions are made on the site that have a negative domino effect and could have been avoided if the architect was engage during the CM process. Usually the costs to reconcile any problems are far in excess of the fee an architect would have charged to attend weekly meetings. Again, a seasoned facilities engineer would know when to call in the architect or engineer when a question that is outside their expertise comes up. The trend to hiring younger, less seasoned staff has extended to these positions as well and they tend to shoot from the hip as a matter of course just to show they have game.

The other central factor in limiting services is the architect themselves. As access to projects becomes more competitive, fees become are being set for a limited scope of services, almost like a Chinese menu approach, so that the base fee presented with the bid is as low as possible. If you want services for specifying furniture that is extra, or you are allowed only one schematic design or no bid supervision. It can go on and on and the service that is offered for the base bid is almost useless in producing viable construction documents.

This can produce a disastrous soup when you combine documents that do not fully describe the scope of work to be done with inexperienced project management or facilities personnel. Peer review of documents would go a long way to aiding he architect in providing adequate documentation, but I don’t see much of that happening any more. The same goes for lessons learned sessions after the project is completed. No money in the budget to do that and so it is off to the next billable hour.

As we move forward with new dictates for greater sustainability and owners’ expectations of higher energy efficiency in the designs they are paying for I only see this scenario getting worse, except, that is, for lawyers.

As always, Nick and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

Limiting Services Can Lead to Increased Liability
Print Friendly, PDF & Email

2 Responses to Limiting Services Can Lead to Increased Liability

  1. […] = '';s1.parentNode.insertBefore(s, s1);})(); As I was reading the great guest post from Nick Pacella last week, the post got me thinking. While Nick’s post focuses on the limiting of […]

  2. Limiting services can lead to tremendously negative impacts on the Architect and/or Engineer. C/A services are desperately needed as a follow up to the custom drawings created. One cannot possibly be paid 3-7% of a custom design and get it all right on a set of drawings that show the design at 1/100th the scale of the real construction. We are brought in on case after case where the lack of C/A services to ‘save someone money’, leads to a disasterous end result for the end user. Examples Wet moldy walls, leaking roofs/flashings, A/C systems that just dont work right, etc. etc. Good Article! Bob

Leave a reply