By R. Burns Logan, Esq.
A few weeks ago I wrote an article on construction pre-construction meetings. See article here. That article was intended to benefit contractors who are beginning work on a new project. However, pre-construction meetings are also extremely important for architects and engineers on construction projects. While the general idea of the pre-construction meeting is the same for architects and engineers as it is for contractors, there are some differences.
The most important thing to remember when considering whether to do a pre-construction meeting is that every single construction lawsuit I have been a part of related to architecture and engineering work included claims that the architect or engineer failed to properly perform its “construction administration” activities on site. Not just some lawsuits, every single lawsuit. It is extremely important that you manage your client’s expectations and perform the construction administration work which you have contracted to perform.
Who Should Be Involved in the Pre-Construction Meeting?
An architect’s or engineer’s pre-construction meeting should include the project architect, project executive, shop drawing reviewers, RFI reviewers, and any other stakeholders in your company involved in the project. You should probably also involve your legal counsel to perform a basic review of your contractual requirements to determine exactly what your construction administration duties include.
Each of the people involved should determine the top issues which they believe will affect their scope of responsibilities on this particular project. For example, the RFI review personnel will have different priorities than the person performing onsite inspections. The idea is that everyone gets a chance to think through the best ways to make projects successful.
Legal Issues to Discuss at Pre-Construction Meeting
There are eight (8) things I routinely discuss at architecture and engineering pre-construction meetings. The point of the discussion is to focus the day-to-day project management team on the relevant legal issues they may face in a construction administration scope of work and what they can do to resolve legal issues before they spin out of control.
1) Change order provisions. Be sure you understand what your contract says about how, when, and what a change order request can include. Architects and Engineers are often responsible for processing contractor change order requests. This could mean everything from the proper procedure for documenting design changes to managing changes for unknown conditions. You need to ensure you have a system in place to ensure you are managing the expectations of the owner and contractor regarding change orders.
2) Damages for delay issues. Almost every construction project runs into schedule challenges which must be overcome. Many of these challenges are faced successfully simply because the parties knew beforehand how to comply with their contract. If there are weather delays or design delays, the project team needs to know exactly what needs to be documented and in what time frame.
3) Liquidated damages clause. Everyone on the project needs to know what the liquidated damages clause includes. This will guide business decisions regarding whether to request change orders or possibly to accelerate the schedule of the work when needed.
4) Time and money for concealed conditions. The parties need to understand, especially at the pre-construction stage, what the contractor’s rights are related to concealed conditions. Often when sub-grade work is being performed, quick decisions need to be made about how to address unforeseen issues. If the parties understand what their obligations are when these issues arise, the process can move much more quickly.
5) Who is responsible for informing of design defects and other issues. As and architect or engineer you are ultimately responsible for any design defects. If your project team recognizes a design defect, it needs to know what should be done immediately to remedy this issue. Design defects which are ignored by the project team create huge problems down the road when systems do not work or the building does not meet the owner’s expectations.
6) Notice requirements. All project personnel need to know what, when, and how to provide notice on a project. This is by far the best way to avoid construction lawsuits on your project. The notice provision is intended to give all parties reasonable facts surrounding potential claims and issues so that the parties can come together and attempt to create a resolution which is acceptable to everyone. If you do not provide proper notice, this cannot happen.
7) Timetable for responding to RFIs and Submittals. Oftentimes, the construction schedule is impacted by delays related to Requests for Information and Submittals. The project team needs to have a solid system in place which takes into account the particular contract specifics to deal with these issues.
8) Inspection and Observation Duties. As an architect or engineer you need to know exactly what the owner and contractors expect from you regarding inspections or observations. You should note what your contract says about the elements you are required to inspect, the detail of those inspections, and how often you are required to inspect. If you think you are supposed to go to the site once a month and the contract says once a week, there will be major problems.
Along with this article, I have provided an “Architecture and Engineering Pre-Construction Legal Worksheet” you can quickly go through with your project team to discuss these particular issues.
Pre-construction meetings are one of the most effective ways you can manage risks on your project. Enrolling the help of your project teams at the beginning of the project will help identify issues and sidestep traps that are inherent in every construction project.
R. Burns Logan, Attorney At Law
LLOYD, GRAY, WHITEHEAD & MONROE, P.C.
a: 2501 Twentieth Place South / Suite 300 / Birmingham, AL 35223