Pitfalls in Architect of Record/Design Architect Projects
Whether due to the increasing complexity of New York City construction projects, or because a developer simply wants to promote a brand-name architect, or “starchitect”, with the project, the engagement of multiple architects on a single project is not uncommon. A typical scenario involves a Design Architect (“DA”) developing the design concepts and early design documents, followed by the Architect of Record’s (“AOR”) preparation of the construction documents (based on the DA’s design drawings) and providing construction administration services. The involvement of multiple architects on a single project, however, can result in duplication of effort, overlapping responsibilities, unnecessary delays and, when a problem or lawsuit arises, finger pointing. This article identifies some of the common issues which should be considered if and when you are involved in this type of project.
At the forefront, the AOR is typically retained to prepare construction documents reflecting the DA’s design. To accomplish that task, the AOR may adopt or incorporate some or all of the DA’s design onto the AOR’s stamped drawings. The AOR’s certification of the DA’s design, however, can be considered unprofessional conduct under Regents Rules §29.3(a)(3). In essence, Regents Rules §29.3(a)(3) states that it is unprofessional conduct for a design professional to certify by affixing the licensee’s signature and seal to documents for which the professional services have not been performed by the licensee. Section 29.3(a)(3), however, allows the AOR to certify the DA’s design/drawings if it: 1) performs a thorough review of the drawings; and 2) prepares and retains a written evaluation of the drawings. A list of items which should be, at a minimum, addressed in the evaluation in order to comply with §29.3(a)(3) is published by the NYS Education Department and can be found on its website. (www.op.nysed.gov). Depending on the results of this evaluation, the AOR may either correct, alter, or add to the existing documents, or prepare additional documents to address any deficiencies or omissions. It is only when the documents satisfy the appropriate standards that they may be signed and sealed by the AOR. Importantly, once the AOR certifies the construction documents, the AOR is responsible for the design, regardless of whether the concept or drawings were originated by and/or through the DA. Notably, §29.3(a)(4) states that it is also unprofessional conduct if a licensee fails to maintain the evaluation (among other things) for at least six years.
Who was responsible for that? Undoubtedly, either during the project or after construction is completed, an issue may arise prompting this question to be asked and analyzed. The delineation of responsibilities between the DA and AOR, however, is not always clear. The first complication is the likely existence of separate contracts between the architects and the owner. Depending upon when each contract was entered and who negotiated the contracts, they may not be coordinated. As a result, they may have competing and contradictory clauses. In fact, the contracts may not even recognize the involvement of the other architect, which can potentially result in unintended and duplicative work and responsibilities. Accordingly, the importance of clarity in the contract is critical. For example, from the DA’s perspective, if its services are limited to design development, it would be prudent to specify an end date for the DA’s services, as well as what role, if any, the DA will have during the construction phase.
The use of electronic communication during the project, most commonly accomplished through e-mail, has also blurred the boundaries of responsibility. Due to the ease and brevity of e-mail, it is commonplace for the architects to collaborate throughout a project, regardless of the issue. These communications, however, can create the impression that an architect is involved with an issue which he or she is not contractually obligated to address. It is important that the design professional recognize the potential ramifications of sending an e-mail opining on an issue which the architect is not contractually obligated to address, or at a minimum, document the reason why the architect is participating in such an exchange. In hindsight that e-mail could suggest that the architect assumed responsibility for an issue which may have been within the scope of the other architect’s services.
Projects involving multiple architects are generally beneficial to the architectural and engineering market in that they create additional opportunities for involvement with a given project. However, when considering a position as a DA or AOR, you should carefully consider and understand the risks associated with that role and prepare accordingly.
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