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

Architects, engineers, and other professionals who deal with the planning, design, and construction of buildings and other facilities that provide shelter and serve a range of human needs are exposed by their education to the standards of their professions. They join together in professional organizations to develop and maintain those standards. They are generally licensed to practice their professions by government authorities responsible for assuring that basic qualifying standards of practice are met. They work together in businesses (firms) that provide planning, design, and related services to clients.

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. ¹

The clients of A&E firms typically are property owners who wish to have new facilities constructed or old facilities refurbished. When hired for a facility development project, an A&E firm (and its constituent professionals) assumes a broad range of responsibilities related to the project. However, the A&E firm is not solely responsible for the success of the project. The owner and others also have significant influence on the outcome.

This report addresses primarily the responsibilities of A&E firms that provide design services to federal agencies. These agencies own, or oversee the development of, government facilities. They 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.

Officials of several such agencies, within the forum of the 18-member Federal Facilities Council,² have expressed dissatisfaction with the quality and thoroughness of work performed by private A&E firms. However, these officials generally have found it difficult to agree precisely why problems occur, or what the most appropriate remedial action may be. At the same time, A&E firms have often complained that many federal agencies —and in general, many owners—have unrealistic expectations about the amount of work a firm should perform for the design fee paid. Because of the pressures of maintaining a business, many A&E firms hesitate to turn away clients, preferring to try to find ways to deliver acceptable services at lower cost.

The Federal Facilities Council requested that the Building Research Board (BRB) conduct a study that would help those seeking to resolve questions of whether the responsibilities of A&E firms are being met. The members of the BRB at that time were appointed by the National Research Council to serve as a committee to undertake that study. Over the course of approximately two years, this committee, the Committee on Architect-Engineer Responsibilities, considered current methods of assessing the quality of design work and identified the issues

for determining what constitutes satisfactory professional work by an A&E firm. The study focused primarily on design, within the traditional three-step process typically used to secure new government facilities: design, bid, build. This report documents the study's findings.

Quality, the overarching goal of everyone involved in facilities planning, design, construction, and operation, means optimal meeting of the needs of facilities users. This involves striking a balance among performance, cost, schedule, and a range of other distinct and sometimes conflicting concerns. As an earlier BRB committee has noted, quality is obtained through conformance to requirements that are both well formulated and clearly stated (NRC, 1991).

The challenges of determining what the requirements ought to be, stating them clearly, and ensuring that they are met extend throughout the facility development process, from initial project planning and facility programming, through design and construction, into occupancy. The current study focused on design but was necessarily concerned also with what happens before design begins and after it is completed. The study committee concluded that (1) the designer must be given a realistic task and appropriate compensation, (2) the task must be well understood by all parties, and (3) the designer's intent must be effectively realized in the constructed facility. Otherwise, owners and users will almost certainly question whether the A&E professional has fulfilled his or her responsibilities. In general, all parties—designers, owners, users—must work together to achieve quality facilities.

Throughout the design and construction process, issues of responsibility and those of liability are often tightly entwined. However, responsibility and liability are two distinct problems with which A&E professionals must deal, and the two ideas should not be confused. This report concerns issues of responsibility.

Determinations of liability are outside of the scope of the committee's study.

The committee found that there are no generally accepted guidelines on how to measure A&E quality, what constitutes “competent” A&E services, or what is “reasonable” to expect with regard to responsibilities of an A&E firm. Drawings and specifications are the principal product of the A&E professional's work, and their clarity and accuracy are major determinants of the quality of A&E services. However, the talent, skills, and experience of the A&E firm's staff; a range of interpersonal and other factors; and often serendipitous events will influence the client's satisfaction with the A&E firm's work. Also, the A&E professionals, as professionals, have responsibilities that go beyond the terms of contracts, which further complicates discussion. These topics are almost always treated anecdotally and suffer from a basic lack of quantitative analysis of A&E performance. There is little documentation available to support establishing a realistic and reasonable standard of care for A&E designers.

The study committee concluded that problems of the sort cited in this study by government agency officials and the A&E community are generally the result of faults in the staff and procedures of both A&E firms and contracting agencies. They sometimes spring from insufficient control in selection of constructors who use the A&E firm's work. Progress in dealing with purported problems of responsibility of A&E firms will require that both the firms and their clients work together for change.

Stories of serious problems on projects are often widely circulated but seldom are backed by solid analysis. In any case, they represent a relatively small portion of the work done by A&E firms. The process of design and development of government facilities is the product of many years of evolution and legislation. This process is complex and involves many participants with sometimes ambiguous roles and

responsibilities. While most government facilities are of good quality, are safe, and serve their users well, individual government agency personnel and members of the A&E community express concern that responsibilities in federal design are too frequently not being met.

The study committee found that the federal process for procuring A&E services is often more complex and time-consuming, requires more formal document preparation, and is more prone to fostering adversarial relationships among the participants in facility development than procedures used for comparable projects in the private sector. The complexity and delay spring in large measure from the inappropriate application of procurement practices developed initially for purchase of weapons systems or commodity goods. Every facility design produces a unique product, and flexibility in the procurement process is needed.

One result of the complex process has been market specialization: some A&E firms tend to avoid competing for government work, while others favor it and become adept at working within the federal procurement process. Many federal agencies have chosen to develop their own guide specifications rather than adopt standard commercial practices in facility development. As a result, the forms, methods, and standards often change from one agency to another, and sometimes even from division to division within an agency. The A&E professional who is seeking to serve a federal agency must learn a whole system of doing business, regardless of his or her prior experience in the private sector. The federal system has evolved to meet its agencies' sometimes unique needs, but the burden of learning the system can dissuade qualified A&E professionals from undertaking government projects.

Another result of the long time period that is frequently required between solicitation of proposals and execution of a contract with an A&E firm is that the firm may be forced to use key personnel unproductively or to assign them to more immediate projects. Government agencies are understandably concerned when professionals working on their projects are not

those promised by the A&E firm, but the firm sometimes cannot afford to “save” certain personnel. In such situations, the firm risks loss of good reputation. Neither the firm nor the agency gains.

A&E firms sometimes fail to appreciate that government agencies must conform to many policies, regulations, and legislative concerns that do not affect the private sector and that these requirements add time to the process. Agencies have been working to simplify and speed up their procurement and design management procedures. Agencies should adopt as a goal substantially reducing the time elapsing between issuance of the request for statements of qualifications and the notice to proceed with design. The study committee recommends that one to four months should generally be an adequate amount of time for most agencies. The committee recommends that a 50 percent reduction in average elapsed time, compared with the current experience, is often a reasonable goal.

The testimony and cases reviewed in this study, and the experience of the study committee's members, show that many agencies faced with real problems of the responsibilities of A&E firms often hesitate to act and fail to convey the nature of their concern or, when appropriate, to insist on corrective action without cost to the government. The committee judged that agency technical staff should be more willing to require such corrective action when it is warranted.

In many government agencies, however, there have been reductions in numbers of professional staff and a shifting of A&E firm selection and supervision responsibilities toward administrative personnel who lack building-related training and experience. Cases presented during the study suggest that these changes are increasing the problems agencies and A&E firms experience. The study committee agreed that A&E firms are rightfully concerned that agencies may be prone to make faulty judgments about the degree to which a firm's responsibilities are not being met.

In particular, the committee recommends that interim design reviews be substantive and conducted by experienced professionals

familiar with the agency's needs, the user's needs, and the practical aspects of facility development. Ideally, the reviews should be conducted in similar fashion and by the same staff at each stage in the design process. If experienced agency personnel are not available, consideration should be given to utilizing an A&E consultant, distinct from the designer but fully familiar with the type of facility and the agency needs, to provide effective peer review.

In general, the responsibilities of A&E firms appear at contractual, technical, regulatory, and ethical levels. At all four levels, realistic, uniform, experience-based measures and benchmarks of A&E performance would be a valuable management tool that could be used by both A&E firms and government agencies to improve planning and design management. The committee proposes that a record of the need for change orders during construction can serve as such a measure of performance. Change orders during construction and their impact on project costs are key concerns from the owner's point of view. The need for change orders may have many causes, but is generally a key indicator of project quality. To the extent that the designer is the source of a need for change orders, this can also be an indicator of A&E firm performance. However, more data on change orders and sensitivity analyses are needed to ensure that benchmarks reflect realistic variations among projects of different types (e.g., hospitals or office buildings), which represent substantially different levels of complexity.

Construction change orders may be required for several reasons. (1) The users' or owner's needs change from those anticipated in design. (2) Site characteristics, construction conditions, or market conditions encountered during bidding and construction differ significantly from those anticipated in design. (3) Staff of the A&E firm and the owner exercise judgment to make choices among design options and then later, with additional information, conclude that another option is

more advisable (such decisions are frequent with “fast track” design and construction). (4) Staff of A&E firms neglect information or make errors or omissions, and these result in problems in construction, in construction bids that are substantially greater than the owner's budget, or in failure to meet the owner's design criteria. Only those changes in the fourth category are clearly an indication of A&E responsibilities not adequately fulfilled.

Data on change orders, cost growth, likely causes, and other project characteristics should be collected and analyzed—with steady attention to the roles of both clients and A&E firms in successful facility development—to provide a basis for the firms, their clients, and others to judge whether the level of changes experienced in a particular project are unusual and possibly outside the range of adequate performance. Agencies of the FFC should convene professional organizations such as the American Institute of Architects, American Consulting Engineers Council, the Associated General Contractors, and others to work with the agencies to develop a study design, collect data on project development, and analyze that data to develop meaningful measures and benchmarks of A&E performance.

Until effective analyses can be conducted, the following guidelines, drawn from limited data and based substantially on the committee members' experience, may be helpful to government agency personnel and others seeking to determine the reasonable standards of care for A&E professionals and owners working on facility development and to manage facility development more effectively.

Guideline 1. A&E professionals can be expected to perform their tasks more responsibly if they are involved on a continuing basis in more stages of the facility development process. A&E firms and government agencies must work together if improvements

facility design and construction. Each side has responsibilities, and those of one cannot be effectively fulfilled without the cooperation of the other. A&E firms have a role to play throughout the facility development process.

Guideline 2. Construction change orders due to unanticipated site or market conditions or shifts in user and owner needs are to be expected during the long time required for the planning, design, and construction of any facility. Construction-cost growth of as much as 5 percent over bid estimates is not abnormal.

Guideline 3. As the time required to develop a facility increases, from initial planning through the end of construction, so does the likelihood of change orders, cost growth, and loss of quality. Delays, whether from legislative, administrative, or technical causes, upset budget and design assumptions and contribute generally to the potential for change orders to be required.

Guideline 4. Changes in the requirements tend to cause changes in design. If the agency changes its requirements, cost changes often ensue through no fault of the designer. If requirements have changed, it is more difficult to determine that A&E performance is wanting.

Guideline 5. Conventional design-bid-build projects that experience construction changes that increase costs more than 10 percent over construction contract award value should be thoroughly reviewed. Changes due to A&E errors, oversights, or omissions should not increase costs more than 5 percent. If an agency is experiencing such cases on a recurring basis, the agency 's programming or A&E firm selection processes may be at fault. The levels proposed here are general and based substantially on committee members' judgment. Specific levels of cost growth and change orders that should be considered abnormal depend on project complexity and novelty. Nevertheless, cost growth, especially if due to design-related change orders, is an indicator of a need for management attention. Recurring cost growth is

a reasonable basis for the agency and the A&E firm to question whether their own performance on such projects is adequate.