On the Responsibilities of Architects and Engineers and Their Clients in Federal Facilities Development (1994)

The English word “professional” derives from Latin roots having to do with public declaration, making one’s vows, and being received into a religious community. To adopt a profession in the middle ages was to become a part of a society of learning that would yield a livelihood but that required its members to live and work in prescribed ways. Today the term has less of a spiritual connotation, but professionals in many fields still are expected to adopt and conform to technical and ethical standards while earning their livelihoods and to continue learning and adding to the store of knowledge in their profession.

Architects and engineers¹ are professionals who deal with matters of the planning, design, and construction of buildings and other facilities that provide shelter and serve a range of human needs. These professionals are exposed by their education to the standards of their professions, join together in

professional organizations to develop and maintain those standards, and generally are licensed to practice their professions by government authorities responsible for ensuring that basic qualifying standards of the practice are met.

Individual architects and engineers typically operate as groups in business organizations that assume forms defined by the laws and regulations of jurisdictions where they work. These groups or firms may be simple proprietorships, partnerships, or corporations, and may concentrate on architectural design, engineering design, planning, cost estimation, construction management, or other specializations, or some combination of these.

The firms of architects and engineers that provide professional services related to the design and construction of buildings and other facilities are commonly referred to as A&Es. However the term A&E also can refer to the individual professionals involved in the design and construction of facilities. ² To avoid ambiguity, the term A&E generally is used as a modifier in this report; for example, “A&E firm” or “A&E professional.”

A&E firms typically are employed by owners of facilities. These owners, the firms’ clients, wish to have new facilities constructed or old facilities refurbished. ³ A&E professionals do not construct these facilities—construction contractors (also termed constructors) do that. The professionals work with constructors and others concerned with facility planning, design, construction, operations and maintenance (e.g., financial institutions, regulatory agencies, and facility management businesses).

In doing their work and practicing their profession, A&E professionals assume a broad range of responsibilities related to the safety of the design, quality, cost, and timely progress of work. This range of responsibilities depends in part on what the client requests and in part on the standards of the profession that determine how much can reasonably be expected. The A&E is not solely responsible for facility development, and the relationships among many parties determine the outcome of any specific undertaking.

This report addresses primarily the responsibilities of A&E firms providing design services to federal agencies who own or oversee the development of government facilities. These agencies share many of the concerns of other facility owners but must deal in addition with a variety of goals, procedures, and requirements unique to government. Not considered here are a range of other analysis, design, and management services A&E firms provide, such as construction management, cost estimating, waste clean-up and environmental remediation planning, community development planning, and others.

The federal government annually spends about $14 billion to $18 billion on construction of buildings and other facilities that are federally owned (DOC, 1991).⁴ A&E firms are typically employed by federal agencies to design these facilities.

Federal agency officials, in discussions with Building Research Board (BRB) members and staff, have sometimes expressed dissatisfaction with the quality and thoroughness of work performed by private A &E firms retained to plan, design, and oversee the construction of government facilities. However,

these officials generally find it difficult to agree on precisely why problems occur or what is the most appropriate remedial action. They cite agency reluctance to take legal action against A&E firms, due to costs, the difficulty of proving negligence, and a purported tendency of courts in the United States to rule that professionals—including A&E firms—cannot be held responsible for producing perfect results but only for providing “competent” services in accordance with the terms of a contract.⁵

In similar conversations, representatives of A&E firms have complained that many federal agencies—and many owners, in general—have unrealistic expectations about the amount of work a firm should perform for a typical design fee. A&E professionals say that owners frequently demand more analyses and services and a higher level of perfection than is provided for in fees usually paid.

While professional organizations have stated standards of professional practice, there are no established guidelines on what constitutes “competent” A&E services or on what is “reasonable” with regard to A&E responsibilities.⁶ Furthermore, BRB members’ experience shows that the client’s satisfaction with A&E performance often depends on interpersonal factors and serendipitous events, as well as on clarity of drawings and specifications and the talent, skills, and experience of the A&E firm’s staff. Although professional societies like the American Institute of Architects have published model contracts for design services, the models are

not applicable to all projects and do not address such matters as the quality of services to be provided.

As a means to better understanding of these matters, and to assist those who, as owners or design professionals, seek to avoid or resolve disagreements concerning A&E responsibilities, the Federal Facilities Council (FFC)⁷ requested that the BRB undertake a study of this topic as part of ongoing FFC-sponsored programs. The BRB members at the time agreed to undertake the study and were subsequently appointed by the National Research Council to serve as a committee to conduct a study of current methods of assessing the quality of design work, seek to identify clearly the issues in determining what constitutes satisfactory professional work by an A&E firm, and make recommendations for addressing problems discovered.>⁸

In a series of meetings and workshops, the study committee solicited comments from government agency staff, opinions from professional organizations, and views of members of the A&E community practicing in both government and private markets. Federal agencies sponsoring the study appointed liaison representatives who met with the study committee on several occasions to present their views.

Professional organizations were also invited to designate members and staff representatives to serve as liaisons to the study. Organizations consulted included the American Society of Civil Engineers, American Institute of Architects, the National Society of Professional Engineers, the American Consulting Engineers Council, and the American Society of Landscape Architects.

The study proceeded in three broad phases, extending over the course of approximately two years:

1. Initial “fact finding” involved solicitation of views from liaisons from federal agencies and professional organizations, a review of current practices in the A&E services business, and reviews of reports of litigation and regulatory actions. A preliminary paper prepared to summarize the results of this first phase of activity became the basis for chapter 1 and chapter 2 of this report.

2. Significant issues were delineated through committee discussion, with participation by representatives of the design community and others with special knowledge relevant to the topics raised in the study’s first phase. A workshop was held to involve a broader range of participants in the study (refer to Appendix B). The workshop discussion became the basis for chapter 3 and chapter 4 of this report.

3. Written statements and committee discussions of the preceding phases of work, and discussions within the forum of the BRB,⁹ led to the study committee’s findings and recommendations, which are presented for the most part in chapter 5 and chapter 6.

The findings and recommendations, and the report as a whole, reflect the judgments and opinions of the committee’s members only. Liaison representatives and other study participants may not agree with the committee’s findings and recommendations.

The study’s focus on the responsibilities of A&E firms that provide design services to federal agencies responds to the concerns expressed by the study’s sponsors but, as previously noted, excludes substantial areas of work that A&E firms perform for federal agencies and other clients. For example, environmental remediation (i.e., the repair or containment of

sites damaged by toxic or otherwise hazardous wastes) is a large and growing market segment for engineering firms. Another area many architects are involved in is public art programs. The work of A &E firms that are involved in these activities does not lead to facilities development. The issues of firm responsibilities in such work reflect different risks, priorities, and societal concerns than those considered in this study.

Furthermore, the study and the committee’s recommendations focus primarily on the government’s traditional process for securing new facilities. This process comprises three steps—design, bid, build—that are typically taken in sequence and that distribute primary control to different people or organizations in each step. Other processes are possible but receive only limited mention here.

Finally, the study was conducted within the context of the current practice, which is required in federal government projects (see the discussion of the Brooks Act in Chapter 3) and widely followed throughout government and the private sector, that selection of A&E firms is based on professional qualifications and not simply on low price alone. Some people argue that A&E services can be described with sufficient exactness that cost-based procurement procedures such as those commonly used for purchasing construction, custodial services, and office supplies, could be applied to A&E firm selection. This view is not examined in this report, and would likely be disputed by many of the participants in this study.

While matters of professional responsibility may be to some degree codified in law or the formal guidance of institutions, they inevitably depend on the judgments of individuals concerned with particular situations. These judgments may be informed by professional training and experience, statistical analyses, or precedent, but they are judgments nevertheless, and depend on the people making them. The findings, conclusions, and recommendations here are not meant to imply enforceable standards of professional practice but rather to aid the continuing efforts of A&Es and their clients to achieve better facilities.

Ultimately, judgments about professional responsibilities and performance cannot be made in broad, abstract terms but rather must refer to the context within which relationships are drawn and work is carried out. In few cases are issues clearly delineated in black and white. Most of the time there are shades of gray. Nevertheless, the essence of the professional’s performance is his or her conformance to the standards of the profession. The members of the study committee believe that keeping these professional standards high will yield benefits of improved quality for all facilities owners and users.