Performing construction phase services has represented a double edged sword for the design professional. On one hand, direct involvement in the construction phase of a project has represented an opportunity for the design professional to remain connected with the client. Also, an on-site presence provides the design professional with an ability to identify and address problems as they arise. On the other hand, however, construction phase services represent additional risk for the design professional in such areas as site safety and the identification of defective work. Therefore, a design professional needs to carefully consider construction phase risks and the means to control and manage them.

Clarity of Contract

Construction phase services are defined by the parties’ contract. A design professional, therefore, must verify the construction phase services it is willing to provide are clearly defined in its contract. The contract should also delineate the services that will not be performed or that will be performed as an extra, paid service. Each of the above should be clearly written so that a third party (Judge or arbitrator) can readily discern the services that were to be performed. Ambiguity in the description of construction phase services could have detrimental affects on the design professional. This is particularly true where the design professional is the author of the contract since case law holds that a contract will be interpreted against its drafter. As with other contract provisions, the section describing the design professional’s construction phase services needs to be carefully reviewed.

Risk Related Services

There are many construction phase services that can pose risk for the design professional. Two of the most prevalent risks involve site safety and the identification of defective work through observation versus inspection services. Depending upon the parties’ contract language and the design professional’s actions in the field; the aforementioned risks can represent significant responsibility and liability exposure.

Site Safety

As a consequence of the litigious climate that has developed in the construction field over the last twenty years, design professionals generally recognize that assuming project site safety responsibilities represent a tremendous risk exposure. Therefore, most design professionals will be careful to have a provision inserted in their contracts disclaiming site safety responsibilities. However, design professionals do not recognize that they may still remain liable, or partially liable for site safety when they visit the project site, and especially review and approve site safety plans.

Design professionals will frequently require contractors to prepare project safety plans. The plans are to be submitted to the design professional for review and acceptance. Despite disclaimers that that the contractor will remain responsible for the implementation of the plan, the review and acceptance of the safety plan may be argued to constitute the design professional’s indication that the plan will protect workers and third parties. If an injury or loss occurs, the design professional may be included in any formal proceeding that seeks compensation.

The above exposure can increase significantly if the design professional is specifically “certifying” or “approving” the safety plan prepared by the contractor. Exposure can also be expanded if the design professional prepares a preliminary plan that the contractor adopts as its own and assume sole responsibility for implementation. Again, the design professional can be held liable for accidents and injuries due to its insertion in the safety plan process.

In addition to its contractual responsibilities, a design professional’s risk exposure may also be defined by statutory requirements. Every project is subject to a degree of statutory, code and/or regulatory control whether a public or private project. While design professionals are aware and know the statutory requirements that govern the project’s design, they are not equally aware of the statutory requirements that may be imposed on their performance of construction phase services.

Regardless of the contractual obligations assumed with regard to site safety, the design professional may be responsible for performing certain obligations regarding safety when they visit the site. While the design professional may not be contractually responsible for site safety, many State laws require the design professional to be proactive in its voicing of safety concerns when the design professional “sees” an unsafe condition or practice occurring on the project. A design professional’s failure to report, or timely report, an unsafe condition it sees during a site visit may create liability in the design professional. A design professional should consult counsel in the jurisdiction of the project to determine its statutory obligations before the project starts.

Contractors are in the best position to control site safety. Additionally, there are numerous safety experts, entities, and government agencies that can develop, implement and review safety plans for contractors and clients. Design professionals should direct the project client to those parties rather than assuming responsibilities.

Observation versus Inspection

The design professional also must be careful to define its role when visiting the project site. Clients want the design professional to “inspect” the project to determine that the Work is being performed in accord with plans and specifications, and best construction practices. “Inspecting” a project will often be defined by a Court as the performance of an exhaustive and detailed reviewed of the project Work. Under that definition, the design professional will be considered to have performed, or should have performed, an exhaustive and very detailed review of the Work. This exhaustive and detailed review may be viewed as having included, or should have included, an invasive review of the Work done. The design professional is not traditionally in a position to perform detailed reviews of the progress of work. The design professional is not on site enough or equipped with the tools to determine that all work has been completed free from defect. As a consequence of the above, an “inspecting” design professional could be held liable for defective or deficient work that could not be discovered by walking through the site during a regular and periodic site visit.

To avoid the above exposure, the design professional should seek to perform site “observation” services. “Observation” services do not include detailed or exhaustive reviews of Work performed. A design professional performing “observation” services will be responsible for identifying defects and/or deficiencies that are reasonably visible to the design professional during their site visit. The design professional will not be held responsible for failing to detect defective or deficient Work that could not be reasonably seen.

A design professional who agrees to assume “observation” services should be careful not to assume “inspection” services in the performance of other services in accord with its contract documents. For example, in agreeing to review and approve the contractor’s application for payments, the design professional will agree to “certify” that the contractor is entitled to the requested payment based upon the “design professional’s inspection of the Work.” Language such as the above may place the design professional back into the “inspection” liability realm.

Enforcing Contract Provisions

Too frequently a design professional will subvert contract terms and conditions when construction commences. A subversion of the contract occurs when the design professional does not act in accord with the contract or any provision contained therein, or acts contrary to a contract provision. Absent a change of scope order by the Owner, the design professional must be careful to act in accord with existing contract provisions.

If the contract calls for the design professional to observe construction activities once a month and the design professional “visits” the site on a daily basis because the site is near the office, the design professional may be determined to have assumed an “inspection” role on the project. Similarly, if the design professional is contractually bound to address claims within five (5) days of identification of the condition giving rise to the claim, and the owner verbally instructs the design professional to wait to the end of the project to address all claims, the design professional may be determined to have prejudiced the contractor’s and its rights by waiting. In both instances, the design professional has increased their liability exposure.

Additionally, the actions of the design professional during construction can result in an increase of exposure. A field representative that commences to give the contractor direction and advice on how to perform parts of its Work may constitute the acceptance of means and methods responsibilities by the design professional. A design professional that gives an on-site safety lecture to the contractor’s forces may be deemed to have increased its safety responsibilities for the project.

Therefore, it is incumbent upon the design professional to ensure that it and its personnel know its contractual requirements and how not to subvert them.