Sunday, June 21, 2009

Contracts and relationships, Part 2 of 2

We've discussed some of the basic contracts and the relationships of owner, architect, and contractor in the last post, but these relationships in general merit further discussion. Understanding the roles of each party and the complications that arise from carrying out those roles and responsibilities can help you figure out what you should be saying to whom when you work on a project.

First, let's differentiate between owner and client--the owner is the entity who will hold ownership of the building or project and may also be providing the funding, while the client is who will actually be using the building or project. Sometimes, they're one and the same--a small-but-growing shoe company needs to expand its operations, so it hires an architect to design a new manufacturing facility and corporate headquarters. Sometimes, however, they're different--an HMO needs a new outpatient clinic facility for its Houston outpost, so the HMO is the owner but the medical and administrative staff of those who will work in the clinic are the client. The owner and client relationship can get fuzzy when the government is involved. Because having the funds to produce a new building that the government will own literally takes an act of Congress, a governmental agency will sometimes contract with a private developer to build a building to their exact standards in exchange for a 99-year lease. In this case, the owner will be XYZ Development, Inc, while the client will be the U.S. Department of the Interior or the Census Bureau, etc.

The reason that the owner versus client differentiation is important because the client (or users) will likely ask for something in a user group design meeting that the owner will strike down. This is where the architect comes in. We architects generally act as the client's advocate. It is our job to do what is right for the client and to design a building that meets their needs and their budget. Sometimes in that role, we have to save a client/owner from themselves. Sometimes, they will ask us to do something that is against code or against best practices--when that happens, it's up to us to say, "Wow, you really really really don't want to do that."

The contractor works for the owner/client, just as we do. In that way, we both must answer to the owner/client and we both must look out for their best interests. The contractor builds what we draw and describe in our specs, of course, but our drawings don't relieve them of professional liability. If they see something in our drawings or specs that don't make sense, is unsafe, is unbuildable, or doesn't meet at least the standard of care, it is incumbent upon them to ask a question about it (usually by asking during a preconstruction meeting or in the form of an RFI out in the field). By that same token, it is incumbent upon us as architects to provide good, clear, coordinated drawings and specs to the contractor so they don't have to waste time asking for basic or semi-basic information. It is also incumbent upon us to ensure that our consultants (engineers, equipment planners, landscape architects, interior designers, and the like) do the same.

Our role as client advocate becomes muddy when we work in a design-build environment with a contractor who is a separate entity from us. Having the architect and contractor as separate entities usually provides a set of checks and balances that ultimately protects the owner/client. But under a design-build agreement, the architect works for the contractor. This can be a problem if the contractor makes changes to the architect's drawings that create an unsafe situation or undermines the standard of care in a building (i.e., substitutes a lower-quality type of insulation in an exterior wall, causing the building to be colder than it should be; or uses duct supports that are less stout than what the mechanical engineer specifies, causing the ducts to fall and crash through the ceiling). While the design-build contractor should in theory take the blame for the change, they can pass the blame to the architect by saying "well, you approved the change". To which the architect replies, "You were in charge! I didn't have a choice, did I?" This argument is being played out in courtrooms across the U.S.; it will be interesting to see how this ends up.

So, the architect produces good drawings and specs and then reviews submittals and shop drawings and performs periodic site walks to ensure that the contractor is building the project to a high-quality standard. Meanwhile, the contractor reviews the architect's drawings and specs and finds and fixes mistakes to ensure, again, that the project is built to a high-quality standard. So who protects the architect and contractor from a crappy owner/client? Well, the short answer is both of you and no one. I do know of architects who have refused to work with clients on future projects because of their inability to make timely decisions and/or inability to pay their bills. What happens more often, though, is that the contractor and architect may get together and figure out how to save the owner from themselves. If an owner/client is unable to make timely decisions, then the architect and contractor sit down together to come up with the best way to explain to them with hard numbers and facts how they're hurting themselves. Sometimes, they'll work together to help frame a discussion so that the owner will understand why a certain decision will benefit the owner in the long run. Occasionally, architect will recommend that a client engage an owner's representative. An ideal owner's rep knows enough about construction as well as the project type to be able to make recommendations to a client about what they should do. This is handy for owner/clients that rarely build new buildings, like a rural hospital or school system. For example, a good owner's rep can help a hospital board make good decisions on what to spend money on so that it won't hamstring the new hospital building's operation or its future growth.

Of course, there are down sides to all these relationships. The architect will whisper in the owner's ear about how the contractor is trying to dumb down his beautiful vision for the owner, which then causes the owner to put undue pressure on the contractor to build something for an unbuildable price. Likewise, the contractor may frame everything for the owner as dollars instead of features, function, and program, which encourages the owner to cut useful stuff out of the project. This leaves the contractor looking like a saint when they return a nice little construction budget refund to the owner at the end of the project while leaving the owner with an undersized parking lot and not enough VAV boxes to properly control the temperature in their building. If the architect and contractor decide to unfairly gang up on the owner/client, they may push them into decisions that they will regret later in the construction project, which will force the owner to pay additional services to the contractor and architect while they "fix" the problem. "You had the chance to put this in the project, and you said no," said the architect and contractor. "But you said I wouldn't need it!" said the owner. "Tough noogies," the architect and contractor retort. "You know what you need--it's up to you to tell us what you need; we work for you." Mmhmm. Sure you do, Frank Lloyd Spite.

Ultimately as an architect, your job is to defend the owner's wants and needs, but not in a way that it will undermine their project's success or future growth. You are a second set of eyes on the contractor's work as well as your consultants' work, but you aren't their mama and daddy, per se. And you need to be willing to speak up when you see something awry, regardless of who needs to hear it and whether they'd like to hear it.

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