Symposium 2000 Review
by Tom Butt, FAIA, LEED AP BD+C
My presentation at the symposium included remarks about construction litigation in general, the design professional’s standard of care, using standards to avoid litigation and achieve better design and construction, and tips to avoid waterproofing failures.
The Design Professional’s Standard of Care – Using Reasonable Diligence and Best Judgment
Architects and engineers become defendants in construction defect litigation because of allegations that they breached the standard of care – that is, they practiced in a negligent manner that caused or contributed to a construction defect that resulted in damage to someone. The law sets forth certain duties of all professionals, including architects, one of which is to utilize reasonable diligence and best judgment in the exercise of professional skill and in the application of learning, in an effort to accomplish the purpose for which the professional was employed.
Water leaks are the single largest cause of construction litigation and often provide an entrée for litigation to expand far beyond the original incentive.
There are several tools available to design professionals to ensure that diligence and good judgment prevails in their practice. These will not only reduce the risk of exposure to unwelcome litigation but will also increase the likelihood that projects will be free of serious construction defects.
Use Industry Standards
Industry standards are documented specifications or guides for materials or methods that have resulted from a consensus process involving knowledgeable individuals. One of the best known sources of consensus standards is the American Society of Testing and Materials (ASTM). This non-profit organization consists of some 32,000 volunteer members in 100 countries, representing manufacturers, specifiers, government, academia and users, who meet and communicate regularly to develop and update standards for virtually every product and product in common use. Thousands of ASTM standards deal with construction materials and methods and are available from ASTM at a modest cost. A searchable index is on the ASTM website at www.astm.org.
Other standards organizations include broad-based models such as the American National Standards Institute (ANSI) with a website at www.ansi.org and more narrowly focused organizations that target specific industries, such as the American Architectural Manufacturers Association (AAMA) and the American Concrete Institute (ACI).
Often the closest architects and contractors get to these resources is in a reference incorporated into a specification. However, individual standards documents can be a gold mine of detailed information about how to design and build components of buildings. These standards are up to date, peer reviewed, and generic. Many of these are available at no cost via the internet, but others must be purchased. Standards organizations, such as ASTM, run largely on volunteers but depend on document sales to pay administrative costs.
Subscribe to and Use Specification Systems
Subscription specification systems such as Masterspec www.arcomnet.com and Spectext www.csrf.org incorporate a short-cut to industry standards, and they provide supplementary evaluation and technical advice. These systems, available for a yearly subscription, are an indispensable tool, updated regularly by a team of professionals sponsored by highly respected professional organizations in the construction industry. To use these resources correctly and avoid potentially costly mistakes, all specifications should be written from scratch for each new project, unless projects are virtually identical and done in close succession. These specifications can include obsolete and potentially damaging material or can include critical omissions if they are recycled from job to job.
Build, Maintain and Use a Reference Library
Too many design professionals relegate important design decisions to inexperienced employees who do not have access to or do not know how to use technical references. It is truly amazing how often drafters simply invent critical details that turn out to be expensive flaws when the correct information was always available. With so much construction information available on the internet, physical libraries are not as necessary as they once were. Almost every material manufacturer has a website, most with detailed technical product information and many with downloadable specifications or CAD drawings.
Manufacturer’s Review of Drawings and Specifications
Most manufacturers will perform a review of documents that use their products, or even generic products that include theirs. This is a good way to get a free peer review from experts and can be especially useful when designing or specifying applications with which the design professional had had no prior experience.
One of the most common sources of construction defects is the designer’s decision to experiment with a “hybrid” system. It is often mistakenly thought that combining components of two or more well-tested systems will result in a hybrid well-performing system. Such experimentation usually has the goal of reducing costs or solving some innovative design problem. The use of incompatible materials and systems that result in failures can often be traced to a naïve hybridization of otherwise dependable materials and methods. This is often done at the behest of or for the benefit of an owner or contractor, and the design professional should fully inform the owner of the risks involved and not undertake such innovation without carefully considering the consequences.
Do Not Cut Fees and Budgets
In a recession marketplace, one can always find a design professional who will undertake a project for almost any fee or scope of work. This is a disservice to the entire construction industry as well as society in general to whom ultimately are passed through the costs of insurance and litigation. Be sure there are sufficient fees to pay the cost of researching the technical information required and to produce adequately detailed drawings and specifications. Do not enter into contracts that do not provide sufficient compensation to design and document a project right. Construction administration is equally important as design and requires comparable budgets to provide an adequate level of observation, submittal review and response to additional information. If there are any reductions in the normally required scope of work, make sure the owner knows this and that the potential risks are documented and assumed by others.
Learn to Say No
Do not let contractors talk you into lowering standards or considering “standards” that cannot be documented as originating from credible sources.