“The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects with experience practicing in the same or similar locality under the same or similar circumstances.” - AIA B101 Contract
I have been asked to be an Owner’s rep for a high-profile client and the client asked me about ways he can control hard and soft costs. One idea I had was to change the contractual obligation between the Owner and Architect to deliver documents that are consistent with the standard “skill and care ORDINARILY provided” to “skill and care provided by architects with experience and expertise in the project type for which they are contracted to design, practicing in the same same or similar locality, under the same or similar circumstances.”
I know many Architects like myself would balk at this, but wouldn’t it be nice if we raised the bar of quality documents and got paid more for having to reach that higher bar? I wonder how that would also translate in terms of minimizing change orders.
What are you trying to achieve by that change, a higher end service? I think the "ordinary" the way I understand it is a minimum, or at least in event of a dispute, the architect has to prove that he has provided a standard of care that's common and ordinarily provided. So from a worse case scenario point, you wouldn't want to increase your liability by going above ordinary.
Personally, I would not change the contract wording, I would just change the deliverables and include a higher end service with higher end fees and leave the standard of care language alone.
Actually, both means the same thing under court. Court precedence and judicial rulings and principles in tort, negligence, and like cases are what you are held to not the specific words of the contract. If you are being sued on contractual basis then yes. If you are being sued on terms of negligence, tort, and the duty to the standard of care, what you do is precisely what it is that you are suppose to do. In fact, what you are suppose to do is exercise your services with the knowledge and skills and care ordinarily provided by architects with experience and expertise in the particular project type in the same or similar locality. In fact that part about experience and expertise and use of the customary knowledge, skill, and care is intrinsic to the project requirements which by the way is what is referred to by same and similar circumstances. The problem is with your contract amendment aside from certain redundancy to it, is that you are affixing words without an actual clear and defined meaning. What is an architect with "experience and expertise" in the project type? What is the "experience and expertise"?
On one hand, the standard of care requires it. Your amendment is simply trying to force the court proceeding to define the "experience and expertise". You didn't define it in the contract. In the court, you are a party to the case, the court must not listen to you or the opposing party. They must listen to opinion of individual expert witnesses testimony to define this. You and the client can not directly define it. The court has to reach its conclusion and define it after hearing the testimony of the witnesses you and the opposing party may call to testify. Are you raising the bar on architects or just trying to complicate such lawsuit proceedings forcing the call of expert witnesses to testify and define what experience and expertise that is entailed such as knowledge and skills required in context with the project requirements.
Isn't the underlying root word of expertise is expert and that underlying word that defines an expert is experience but what defines an expert, exactly. What is the quantitative measure of an expertise? What is the qualitative measure of expertise. Howe do you put it into measurable form from which to evaluate? Is this just a shenanigan to cause confusion and complications, even causing the legal proceeding to take longer. Is this just one of those, just being a dick, thing?
Below is the excerpt from the contract that I use ( I'm told it's originally partly from both AIA and RIBA's) ...with the skill and professionalism of a reasonably competent architect.
To me the words " reasonably, professionalism and competent cover most if not everything.
I agree and muddying contract with words that on face value means the same thing but when you use words other than that which is conventionally used much like when in statutory law, changing words to different words, invokes a whole process of analysis where words like "experience" and "expertise" and such phrases must be analyzed and then must also then require a system of measuring experience and expertise as to determine what is competent level of experience and expertise. Upending precedence to undergo a reanalysis which may very well end up in the same spot where we were under the current wording. This can be creating unneeded headache.
Extraordinary work from architects comes with extraordinary support from clients. Probably not the kind of client who thinks this clause is the heart of the matter.
There is a disconnect between the goal of quality and the desire to cut costs by putting pressure on the architect's end. The pressure is opposite to the stated intention even. In any case, isn't the idea of high competence baked into the existing wording already? The "circumstances" include above normal fees (presumably) for above average work, no? I don't see that being a way to reduce costs though.
You can add penalties and timelines and other such wording to the contract, and maybe you already have. A really bad idea for an architect to accept on a project that has any kind of innovation, but if you are aiming for cheap and cheerful you might convince someone to go for it.
what do you expect any architect would do differently based on these terms?
presumably you are hiring an architect with comparable experience on similar projects in the area, right? that's something you do, not a contract term. if they don't have the experience, making it a contract term is not going to cause them to have it.
controlling hard and soft costs is entirely a project management / construction management issue. the architect has no meaningful control over either, except to the extent their fees contribute to soft costs. the best you can look for is an architect who can work with you to support getting accurate cost estimates and making design adjustments as needed. It's on the owner's team to do the hard work making sure the design program and the contractor selection work with the budget and timeline. a hands-off owner will always be disappointed by the outcome.
If you think changing that clause in the contract will help anything, I've got a very nice piece of land in Florida you would probably be interested in.
Your deliverables are shifting to a more attentive set of tasks. More review of dwgs/docs/pay apps/contracts; more frequent involvement in meetings & site visits; more evaluation & analysis of the project status at each step along the way; more status updates to owner; etc.
How that intersects with the goal of saving on soft costs is unclear because higher service level isn't going to reduce your professional fees necessarily.
On second thought, I'm gathering you aren't the prime architect so your fees aren't applied in the design contract. This is where the owner needs to understand that if he's not trusting his architect, he's paying more for the privilege of this Owner's rep service.
So architects have the knowledge to get a college degree, work for firms to get the required design experience in most cases, and pass the ARE but can't write or learn how to create their own personalized professional agreements (or contracts if you prefer) that works to their legal and economic advantage? - give me a f*cking break ...
You are a businessperson at the end of the day and you have those responsibility to yourself, employees, and associates ...
This is a painfully bad, naive, even dangerous comment. Last time I checked, we are not lawyers. What are you suggesting? That we create our own contracts from scratch? Of course we review contracts and get outside counsel when we feel it's prudent. You know, the way every other business works.
That's exactly what I'm suggesting but maybe from a good sample agreement - if you are a professional that provides a service or product you don't have to state the explicit - if you remodel your home the contractor has no "standard of care that's common and ordinarily provided" legal language as provided by the AIA lawyers - this sounds like a smoke screen for a poor designer that is not up to the job and wants a judge to bless the work ...
First, you don't NEED to be a lawyer to write contracts. Sure, it would be good and advisable to run it through a lawyer to check to legal issues but a lawyer doesn't know your profession except maybe 1% of 1% of lawyers do. Usually someone who became an architect or been significantly on the pathway of architecture and eventually went to law school to become a lawyer. The problem is, when you introduce new words of art into contract languages without established legal precedence, you also introduce a judicial process requiring to 'define' what these new "words of art" used and how to measure and evaluate. What the fuck is expertise? What is the expertise required? What experience and expertise is the "model architect" must have that other architects must be measured to.
Are you now trying to place the model of "model architect" which all others MUST be equal to or greater than, is some superhero model architect that no mortal could ever achieve? You can perhaps see how this can blow up badly. Contracts should utilize established legal "words of art" with established precedence because raising the bar in such a manner could be raising the bar to require gods not humans to achieve.
My concern is to be careful. It should also be noted that an AIA contract is meant to operate in a contractual ecosystem that should not me modified except where it is explicitly intended to be modified. In other words, don't fuck with it unless you want to risk breaking the entire contractual ecosystem as they are meant to interoperate with the other contracts in the AIA contracts ecosystem and sometimes some of the other standard contract systems.
This is where you don't go contractual changes entirely on your own. There is so much you do on your own and tailoring the contract but there is also important needs to involve a lawyer. Yes, architects SHOULD be able to write their contracts because ALL licensed professionals should have mandatory, taking the same kinds of in-depth classes on contract law as lawyers.
It's true, you are not a lawyer. You are not representing someone else. In general, in courts, firms are REQUIRED to be represented by lawyers or every owner of the firm must either be represented by a lawyer of his/her own or self-represent (pro se litigant). A lot of times, it is convenient to have a singular person to represent the business and not every owner being represented by lawyers, independently of each other, or otherwise self-representing and being present at every damn legal case that comes up. You want to have a lawyer at this point and even individuals should have a lawyer they engage in individual transactions of legal services and during legal cases, representation but if you have steady work, pay a retainer.
well yeah, contracts should be part of a business model. The OP is asking how to reduce costs (incl fees or soft costs) while pressuring architects to increase their service burden contractually. Hence the disconnect. That (maybe) works for off the shelf production but I dont see it going well as soon as anything is non-standard or with anything ambitious. Is high-end no longer either of those things? If so what does high-end mean?
Or am i reading the idea wrong?
There is nothing mysterious or mythical about law or contracts. I have always written my own contracts as to how I understand the scope of work and the services to be performed. The Signer can agree or not. Deliverables, time frame and termination clauses are important. It's often assumed you are hired based on the performance of past work. I've no need to complicate it beyond that. All relationships are based on trust. If that isn't there, no contract can save you.
A contract won't address what the client is asking for, and the best architects would not accept a contract like this.
Sorry to be crude, but I think what they're asking for is just for you to do your job well. Good management. If saying "you hired me" or "it will be my fault if that isn't accomplished" isn't a sexy response, just make stuff up to keep up appearances. But a contract isn't the solution.
so well said - inadequate and deceitful agreements are generally worth the paper they're written on and can cost you your business and, more importantly, your professional reputation ...
Nov 13, 24 11:30 am ·
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Above Ordinary Standard of Care
“The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects with experience practicing in the same or similar locality under the same or similar circumstances.” - AIA B101 Contract
I have been asked to be an Owner’s rep for a high-profile client and the client asked me about ways he can control hard and soft costs. One idea I had was to change the contractual obligation between the Owner and Architect to deliver documents that are consistent with the standard “skill and care ORDINARILY provided” to “skill and care provided by architects with experience and expertise in the project type for which they are contracted to design, practicing in the same same or similar locality, under the same or similar circumstances.”
I know many Architects like myself would balk at this, but wouldn’t it be nice if we raised the bar of quality documents and got paid more for having to reach that higher bar? I wonder how that would also translate in terms of minimizing change orders.
What are you trying to achieve by that change, a higher end service? I think the "ordinary" the way I understand it is a minimum, or at least in event of a dispute, the architect has to prove that he has provided a standard of care that's common and ordinarily provided. So from a worse case scenario point, you wouldn't want to increase your liability by going above ordinary.
Personally, I would not change the contract wording, I would just change the deliverables and include a higher end service with higher end fees and leave the standard of care language alone.
Actually, both means the same thing under court. Court precedence and judicial rulings and principles in tort, negligence, and like cases are what you are held to not the specific words of the contract. If you are being sued on contractual basis then yes. If you are being sued on terms of negligence, tort, and the duty to the standard of care, what you do is precisely what it is that you are suppose to do. In fact, what you are suppose to do is exercise your services with the knowledge and skills and care ordinarily provided by architects with experience and expertise in the particular project type in the same or similar locality. In fact that part about experience and expertise and use of the customary knowledge, skill, and care is intrinsic to the project requirements which by the way is what is referred to by same and similar circumstances. The problem is with your contract amendment aside from certain redundancy to it, is that you are affixing words without an actual clear and defined meaning. What is an architect with "experience and expertise" in the project type? What is the "experience and expertise"?
On one hand, the standard of care requires it. Your amendment is simply trying to force the court proceeding to define the "experience and expertise". You didn't define it in the contract. In the court, you are a party to the case, the court must not listen to you or the opposing party. They must listen to opinion of individual expert witnesses testimony to define this. You and the client can not directly define it. The court has to reach its conclusion and define it after hearing the testimony of the witnesses you and the opposing party may call to testify. Are you raising the bar on architects or just trying to complicate such lawsuit proceedings forcing the call of expert witnesses to testify and define what experience and expertise that is entailed such as knowledge and skills required in context with the project requirements.
What exactly are you trying to pull?
Isn't the underlying root word of expertise is expert and that underlying word that defines an expert is experience but what defines an expert, exactly. What is the quantitative measure of an expertise? What is the qualitative measure of expertise. Howe do you put it into measurable form from which to evaluate? Is this just a shenanigan to cause confusion and complications, even causing the legal proceeding to take longer. Is this just one of those, just being a dick, thing?
Below is the excerpt from the contract that I use ( I'm told it's originally partly from both AIA and RIBA's)
...with the skill and professionalism of a reasonably competent architect.
To me the words " reasonably, professionalism and competent cover most if not everything.
my 2c
I agree and muddying contract with words that on face value means the same thing but when you use words other than that which is conventionally used much like when in statutory law, changing words to different words, invokes a whole process of analysis where words like "experience" and "expertise" and such phrases must be analyzed and then must also then require a system of measuring experience and expertise as to determine what is competent level of experience and expertise. Upending precedence to undergo a reanalysis which may very well end up in the same spot where we were under the current wording. This can be creating unneeded headache.
Extraordinary work from architects comes with extraordinary support from clients. Probably not the kind of client who thinks this clause is the heart of the matter.
There is a disconnect between the goal of quality and the desire to cut costs by putting pressure on the architect's end. The pressure is opposite to the stated intention even. In any case, isn't the idea of high competence baked into the existing wording already? The "circumstances" include above normal fees (presumably) for above average work, no? I don't see that being a way to reduce costs though.
You can add penalties and timelines and other such wording to the contract, and maybe you already have. A really bad idea for an architect to accept on a project that has any kind of innovation, but if you are aiming for cheap and cheerful you might convince someone to go for it.
speaking from the owner's side myself:
what do you expect any architect would do differently based on these terms?
presumably you are hiring an architect with comparable experience on similar projects in the area, right? that's something you do, not a contract term. if they don't have the experience, making it a contract term is not going to cause them to have it.
controlling hard and soft costs is entirely a project management / construction management issue. the architect has no meaningful control over either, except to the extent their fees contribute to soft costs. the best you can look for is an architect who can work with you to support getting accurate cost estimates and making design adjustments as needed. It's on the owner's team to do the hard work making sure the design program and the contractor selection work with the budget and timeline. a hands-off owner will always be disappointed by the outcome.
If you think changing that clause in the contract will help anything, I've got a very nice piece of land in Florida you would probably be interested in.
bennyc has it
Your deliverables are shifting to a more attentive set of tasks. More review of dwgs/docs/pay apps/contracts; more frequent involvement in meetings & site visits; more evaluation & analysis of the project status at each step along the way; more status updates to owner; etc.
How that intersects with the goal of saving on soft costs is unclear because higher service level isn't going to reduce your professional fees necessarily.
On second thought, I'm gathering you aren't the prime architect so your fees aren't applied in the design contract. This is where the owner needs to understand that if he's not trusting his architect, he's paying more for the privilege of this Owner's rep service.
So architects have the knowledge to get a college degree, work for firms to get the required design experience in most cases, and pass the ARE but can't write or learn how to create their own personalized professional agreements (or contracts if you prefer) that works to their legal and economic advantage? - give me a f*cking break ...
You are a businessperson at the end of the day and you have those responsibility to yourself, employees, and associates ...
This is a painfully bad, naive, even dangerous comment. Last time I checked, we are not lawyers. What are you suggesting? That we create our own contracts from scratch? Of course we review contracts and get outside counsel when we feel it's prudent. You know, the way every other business works.
That's exactly what I'm suggesting but maybe from a good sample agreement - if you are a professional that provides a service or product you don't have to state the explicit - if you remodel your home the contractor has no "standard of care that's common and ordinarily provided" legal language as provided by the AIA lawyers - this sounds like a smoke screen for a poor designer that is not up to the job and wants a judge to bless the work ...
First, you don't NEED to be a lawyer to write contracts. Sure, it would be good and advisable to run it through a lawyer to check to legal issues but a lawyer doesn't know your profession except maybe 1% of 1% of lawyers do. Usually someone who became an architect or been significantly on the pathway of architecture and eventually went to law school to become a lawyer. The problem is, when you introduce new words of art into contract languages without established legal precedence, you also introduce a judicial process requiring to 'define' what these new "words of art" used and how to measure and evaluate. What the fuck is expertise? What is the expertise required? What experience and expertise is the "model architect" must have that other architects must be measured to.
Are you now trying to place the model of "model architect" which all others MUST be equal to or greater than, is some superhero model architect that no mortal could ever achieve? You can perhaps see how this can blow up badly. Contracts should utilize established legal "words of art" with established precedence because raising the bar in such a manner could be raising the bar to require gods not humans to achieve.
My concern is to be careful. It should also be noted that an AIA contract is meant to operate in a contractual ecosystem that should not me modified except where it is explicitly intended to be modified. In other words, don't fuck with it unless you want to risk breaking the entire contractual ecosystem as they are meant to interoperate with the other contracts in the AIA contracts ecosystem and sometimes some of the other standard contract systems.
This is where you don't go contractual changes entirely on your own. There is so much you do on your own and tailoring the contract but there is also important needs to involve a lawyer. Yes, architects SHOULD be able to write their contracts because ALL licensed professionals should have mandatory, taking the same kinds of in-depth classes on contract law as lawyers.
It's true, you are not a lawyer. You are not representing someone else. In general, in courts, firms are REQUIRED to be represented by lawyers or every owner of the firm must either be represented by a lawyer of his/her own or self-represent (pro se litigant). A lot of times, it is convenient to have a singular person to represent the business and not every owner being represented by lawyers, independently of each other, or otherwise self-representing and being present at every damn legal case that comes up. You want to have a lawyer at this point and even individuals should have a lawyer they engage in individual transactions of legal services and during legal cases, representation but if you have steady work, pay a retainer.
well yeah, contracts should be part of a business model. The OP is asking how to reduce costs (incl fees or soft costs) while pressuring architects to increase their service burden contractually. Hence the disconnect. That (maybe) works for off the shelf production but I dont see it going well as soon as anything is non-standard or with anything ambitious. Is high-end no longer either of those things? If so what does high-end mean? Or am i reading the idea wrong?
There is nothing mysterious or mythical about law or contracts. I have always written my own contracts as to how I understand the scope of work and the services to be performed. The Signer can agree or not. Deliverables, time frame and termination clauses are important. It's often assumed you are hired based on the performance of past work. I've no need to complicate it beyond that. All relationships are based on trust. If that isn't there, no contract can save you.
Agreed with above posters.
A contract won't address what the client is asking for, and the best architects would not accept a contract like this.
Sorry to be crude, but I think what they're asking for is just for you to do your job well. Good management. If saying "you hired me" or "it will be my fault if that isn't accomplished" isn't a sexy response, just make stuff up to keep up appearances. But a contract isn't the solution.
so well said - inadequate and deceitful agreements are generally worth the paper they're written on and can cost you your business and, more importantly, your professional reputation ...
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