Some clients expect perfection when it comes to projects being completed on time, within budget, and code compliant. Many believe the design firm’s plans and specifications should be airtight, with no errors, omissions, or deviation from code. Of course, the goal of all designers is to meet these expectations, and most of the time, designers are quite successful in doing so. Those firms that do not meet such expectations disappear over time.
But we know what happens when the project doesn’t come in on time, goes over budget, or has plans that are allegedly not in strict compliance with code. Unhappy clients look to the design firm to make it right. Adjusting the timeline or budget, though not ideal, is often straightforward. Ensuring code compliance can be more complex.
Contractual Confusion
We view code compliance issues with a broad stroke since many variables are involved. Without a contractual promise to provide plans in strict compliance with code, courts will usually determine responsibility based on the standard of care.
There are important legal distinctions between a claim of negligence (breach of the standard of care) and a breach of contract claim. Most breach of contract claims are not insurable under any firm’s professional liability policy. These policies are designed to cover negligence claims and typically exclude coverage for breach of contract claims.
Firms should be cautious of signing a contract that provides both a standard of care clause and a strict code compliance statement. Consider the following language instead.
“Notwithstanding anything to the contrary, the services of Design Professional shall be performed in accordance with and judged solely by the standard of care exercised by similar professionals providing similar services on projects similar in type, magnitude, and complexity to the Project that is the subject of this Agreement.”
Compliance Obstacles
Let’s examine some reasons why an agreement to provide drawings that fully comply with code can lead to risk management challenges for design professionals.
Regulatory complications
Legislatures, executive branches, court decisions, and governmental agencies at all levels, constantly create and modify rules and regulations involving zoning, handicap accessibility, historic preservation, health, environment, sustainable design, energy savings, safety, and more.
Misunderstandings
It’s not uncommon to have different code officials disagree with each other or for expert witnesses held in high regard to disagree on interpretations of code. With this in mind, it’s clear that a design firm realistically can’t be expected to warrant a perfect set of plans.
Conflicting Codes
It’s also not uncommon that codes themselves sometimes conflict with each other, making compliance nearly impossible. In these situations, discussions with authorities may be required to arrive at an appropriate solution.
An Advocate for Your Client and You
Firms are often reluctant to raise issues, concerned that their proposals will be dismissed without due consideration. However, in our experience, it is possible to address the matter thoughtfully and without immediate rejection.
Keep your client fully involved throughout the project by explaining design decisions that are based on certain assumptions of critical code interpretations. When a code official makes an adverse interpretation, you need to have your client participate in resolving the problem. Document your communications with all parties.
The experts at Holmes Murphy can help guide you through this process and ensure your good work isn’t tarnished by perfectionistic expectations. Reach out today and let’s start a conversation!
