Errors and omissions

Your professional standard of care

At law, every professional is expected to perform or deliver their professional services at least to their legal standard of care, if not higher. Architects are professionals and owe a standard of care.

The legal standard of care does not demand that you perform your professional services perfectly or completely without error at all times. A minor discrepancy in your documentation is not necessarily a failure to meet the standard of care.

In simple terms: an architect’s professional conduct is measured against what an architect who is reasonably competent would have done while working on an equivalent type of project (Refer Architects standard of care).

Construction documentation

A building is a complex three-dimensional object and each building is unique. Construction documents are prepared to guide the conversion of a design concept into a completed building. The documents provide a level of information which explains the design intent and provides the contractor with the bulk of the information required to construct the building. The construction documents cannot anticipate every eventuality and there are likely to be discrepancies as part of this process. For example, the architect’s documentation may:

• present inconsistent levels of quality (this is commonly referred to as an ‘ambiguity’);
• state the wrong measurements (this is commonly referred to as an ‘error’); or
• fail to note that a piece of work is required to be performed (this is commonly referred to as an ‘omission’).

During the construction process, additional construction information is also developed by the contractor and their subcontractors. That additional information is contained in the shop drawings prepared by the subcontractors and in the information provided by manufacturers of the products selected by the contractor for use in the construction. In many cases these shop drawings and product selections will result in subtle changes to the original construction drawings or intent and may involve agreement to additional costs.

A client who is unfamiliar with the building process might assess such adjustments or discrepancies as avoidable errors or omissions by the architect, rather than an ordinary, common outcome of the construction process.

Prototypes

While it is possible to construct prototypes of some components of a building prior to or very early in the construction process, the majority of the building will be a one-off construction. Examples of prototypes that are commonly constructed include facade systems, or a standard bedroom in a hotel or hospital. The early construction of a prototype allows the architect and the client to evaluate the prototype from both a functional and a visual perspective and to minimise potential problems prior to committing to the construction of these selected building elements.

It is important to recognise that even in industries such as vehicle manufacturing, where prototyping is used extensively, problems still can and do occur. Commonly these problems result in product recalls to correct the identified defect. Generally architects do not have that luxury when designing buildings.

Payment for additional building work and professional services

A client should expect the architect (and any sub consultants) to act quickly to correct discrepancies or to minimise any delay to the construction process, but should not assume the architect will do so without a claim for additional fees.

A distinction should be made between:

• Additional work and time to correct a discrepancy which a reasonably competent architect should have known about or included – this work should be carried out at the architect’s cost, and
• Additional work and time to correct discrepancies, that arise as a result of the ordinary construction process, such as re-design to work around a supply delay or product unavailability – this work should not be carried out at the architect’s cost.

If part of the cost of correcting the discrepancy involves work that would have been required to construct the building regardless of whether an error was made, this work benefits the client’s project and should be at the client’s cost. In the client-architect relationship, the client should not get the benefit of an architect’s work or expertise without the architect being fairly paid for it. It would be unfair that the architect incurs expenses to the client’s benefit.

It would be equally unfair that the architect should bear the cost of rectifying documentation that is not the fault of the architect.

A well-drafted client architect agreement guides the parties about when an architect will not bear the cost of additional work, by providing that changes in design or scope brought on by the client, or by circumstances beyond the control of the architect, should be paid for by the client.

It is not reasonable for a client to expect to recover the costs of adding work to the scope shown on the agreed construction documents. However, a client may be able to recover the consequential cost involved where action was not taken earlier in the process to rectify a documentation discrepancy, and where the delay to address this discrepancy has caused or contributed to greater costs.

Managing the client’s expectations

It is essential that a client be made aware of the likelihood of discrepancies in the work of an architect. These discrepancies can occur at any stage in the project and can have an impact on the project cost.

Often clients become concerned when discrepancies are encountered late in the construction stage and may insist that the architect is responsible because they don’t want to bear the cost of correcting a discrepancy. This usually arises near the end of their project, when the client has limited funds to cover additional and unforeseen costs.

The best way to minimise client dissatisfaction is to inform them early in the process that because their building is unique, discrepancies will arise and the architect will work with the client to manage them.

To help manage this process, it is important to advise that the client allow a contingency sum in the forecasted project costs. A client who is given to understand that discrepancies can arise from the construction process itself will be more likely to accept such a contingency sum.

Managing contingency sums

The practice to best manage the contingency sum is for the client to have this in reserve as part of the project budget, but not built into or referred to in the construction contract. This leaves the contingency available to be applied by the client to deal with both contractor’s claims for variations and additional payment to the architect for documentation changes as necessary.

Throughout the project, you should manage the contingency sum to minimise the risk of the project going over budget. For example, prepare a cost summary report for the client at each project claim.

Summary

Discrepancies do arise in construction documents even where the architect has performed the services to the professional standard expected. The architect is not always or solely responsible for these discrepancies.

The expected standard of accuracy and completeness of a set of construction documents produced by an architect would be compared to a set of documents prepared by a competent architect for a similar size and type of project.

You should encourage your client to include a contingency sum in the project budget to cover the cost of correcting minor discrepancies, both for construction cost variations and additional architect’s fees in appropriate circumstances. You should also make your client aware that the contingency sum’s purpose is not to cover costs for changes to the scope of work that they have initiated.