3

THE PATTERNS OF A&E RESPONSIBILITIES

There are many parties responsible for design, production, and operation of a building or other constructed facility. The facility itself, in turn, has many interacting parts and is very complex. This complexity of both producers and product is a source of many concerns about the responsibilities of A&Es and other participants. There are a number of views regarding what specific tasks within the process the A&E firm should be asked to undertake, what are the levels of effort required to complete these tasks, and whether the performance of these tasks has been adequate.1

QUALITY FACILITIES AS THE AIM

The overarching goal of everyone involved in facilities planning, design, construction, and operation and maintenance should be to provide high quality facilities that shelter and support the people and activities who use those facilities.

1  

While the principles of A&E responsibilities apply to all projects, the specific tasks differ among project types. For example, when the project is renovation or remodeling or is carried out under “fast track” procedures (i.e., construction begins before design is complete to reduce total project duration), the work, timing, and appropriate controls may differ substantially from the conventional design-bid-build process described in Chapter 2. The committee focused its discussions on the conventional process.



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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT 3 THE PATTERNS OF A&E RESPONSIBILITIES There are many parties responsible for design, production, and operation of a building or other constructed facility. The facility itself, in turn, has many interacting parts and is very complex. This complexity of both producers and product is a source of many concerns about the responsibilities of A&Es and other participants. There are a number of views regarding what specific tasks within the process the A&E firm should be asked to undertake, what are the levels of effort required to complete these tasks, and whether the performance of these tasks has been adequate.1 QUALITY FACILITIES AS THE AIM The overarching goal of everyone involved in facilities planning, design, construction, and operation and maintenance should be to provide high quality facilities that shelter and support the people and activities who use those facilities. 1   While the principles of A&E responsibilities apply to all projects, the specific tasks differ among project types. For example, when the project is renovation or remodeling or is carried out under “fast track” procedures (i.e., construction begins before design is complete to reduce total project duration), the work, timing, and appropriate controls may differ substantially from the conventional design-bid-build process described in Chapter 2. The committee focused its discussions on the conventional process.

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT Meeting the needs of facilities users involves striking a balance between performance, cost, schedule, and a range of other distinct and sometimes conflicting concerns. Quality in constructed facilities has something to do with achieving a satisfactory balance among these various concerns. The American Society of Civil Engineers defined quality as “meeting the stated requirements of the principal participants (owner, design professional, constructor) while conforming to applicable codes, safety requirements, and regulations” (ASCE, 1990). In an earlier study, a BRB committee found that this definition needed to be taken a step further, because requirements are sometimes established on the basis of custom rather than analysis of the situation at hand. This earlier committee asserted that “quality is obtained through conformance to adequately developed requirements”—requirements that are well formulated as well as clearly stated to set forth the characteristics that the constructed facility must have to serve its users well (NRC, 1991). An essential precondition for ensuring construction quality is getting the requirements right and presenting them understandably and accurately in the drawings and specifications to be followed by the constructor. The challenges of getting the requirements right, stating them clearly, and ensuring that they are met are substantial. These challenges extend throughout the facility development process, from initial project planning and facility programming, through design and construction, into occupancy, and, with review of the user's experience, through post-occupancy evaluation. Hence, the client or owner must also “get the requirements right,” that is, know what is wanted in the facility, and present these requirements clearly to the A&E professionals. Involving the people who will ultimately be the facility's users in the work of establishing the requirements can help to ensure that the challenges are most effectively met. However, the agency or administrative unit responsible for developing a facility may be different from the agencies that will occupy this facility, so this involvement may not occur. This separation of

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT user and A&E professional is inherent in the facility development process and not unique to government agencies. Because getting the requirements right is so important, the committee, while focused on design, considered also what happens before design begins and after it is completed. However, the designer is limited by the scope and budgets established by the client and by a range of other conditions beyond the designer's control. Unless (1) the designer is given a realistic task and appropriate compensation, (2) the task is well understood by all parties, and (3) the designer's intent is effectively realized in the constructed facility, owners and users will almost certainly question whether the A&E has fulfilled his or her responsibilities. RESPONSIBILITY VERSUS LIABILITY Issues of responsibility are often tightly entwined with concerns for liability. When problems occur that cause monetary loss, injury, or even death to people, responsible parties may be held liable for these damages.2 However, responsibility and liability are two distinct problems with which A&Es must deal. Everyone involved in production of a facility shares responsibility for that facility's quality, but each individual, firm, and agency has a specific role to play. Responsibility and liability should not be confused, and parties responsible for some aspect of a project are not necessarily liable when accidents, errors, or omissions occur. Matters of liability must be determined within the context of each specific 2   For example, more than $250,000 was spent for government inquiry following the 1988 collapse of a grocery store roof, which injured 21 people in Canada. While four structural engineers were suspended by their professional association, the “convoluted relationships and lines of responsibility among owner, project manager, prime consultant, architect, structural engineer, and even tenant” were cited as cause for concern. (Jones and Nathan, 1990)

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT case and within the framework of specific statute and case law. Adjudication may be needed to make determinations of liability. Determinations of liability are beyond the scope of this study. Established procedures administered by government agencies, professional organizations, mediation and arbitration bodies, and the courts are the appropriate means for making these determinations. This report can have, at most, only an advisory role in such judgments. However, studies of court cases involving liability issues may suggest where quality problems are likely to occur. TEAMWORK AMONG PARTICIPANTS IN THE PROCESS At a minimum, an owner, an A&E firm, and a constructor are generally involved in production of a building or other facility, and they must work together to achieve quality in that facility.3 Some observers suggest that these three parties are the legs of a stool on which rests the quality of the finished product. Another party, the user (sometimes termed the “non-paying client”), may or may not be the same as the facility owner—or even in the same organization, but is a part of the owner's team. For many of the federal government's facilities, a procuring agency, distinct from the user, represents the government-as-owner and often is the central participant in the process. This procuring agency may actually be a separate executive department (e.g., the General Services Administration acting on behalf of the Department of Transportation) or simply another office or division of the same department (e.g., the Office of Foreign Buildings Operations developing an embassy facility for use by the State Department 's diplomatic staff). 3   Design–build and other less frequently used facility development procedures combine these typically separate parties. These procedures will be discussed further in later sections of the report.

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT There are other parties involved as well, including building-code enforcement bodies and other government regulatory agencies responsible for building safety, environment, access, and other characteristics. The federal government assumes, in principle, all regulatory responsibilities for ensuring public health and life safety in and around its facilities, and many agencies have developed their own published standards of practice (popularly termed “guide specs” in some agencies).4 Licensing and regulatory agencies, typically state or local government bodies, seek to provide some degree of assurance that participants in the building process are qualified to perform their functions. A&E professionals, following their formal professional education, must undergo rigorous testing and personal scrutiny to become registered and thereby certified to practice their professions. Constructors must generally be licensed to operate in a particular jurisdiction, although the regulations usually refer more to business strength than to technical qualifications or experience. Facility managers, who operate facilities in service and thereby have substantial influence over user satisfaction, may be licensed by their local jurisdiction in much the same manner as real estate brokers. Professional organizations such as the American Institute of Architects, American Society of Civil Engineers, and American Society of Landscape Architects establish standards for their membership that also have the effect of ensuring that members meet certain criteria of training and experience. 4   These agency standards are typically similar to the criteria and standards that apply in the private sector, but A&E firms cannot take for granted that this is the case. Federal legislation encourages agencies to consider locally applicable building codes and to cooperate with local enforcement officials (P.L. 100-678, Public Buildings Amendments of 1988), and some agencies have voluntarily begun to use local or national model building codes in lieu of federal design standards.

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT GENERIC PROBLEMS The various parties all play some role in determining how buildings are developed and their ultimate quality. But, as Chapter 2 explains, each party's roles are for the most part limited to only one or two stages within the multistaged process of facility development. A&E firms, however, can participate in principle in all stages of the process, although the participating firm may change from one part of the process to another. For typical government projects, a single A&E firm is asked to undertake only preliminary and final design. The A&E firm is sometimes asked to review constructors' bids but seldom has a role in construction quality assurance.5 A&Es recognize, and the committee noted, that the facility development process is essentially a creative process. The committee noted further that because of this, the process is resistant to objective description, quantification, and generalization. Conflicts in views—sometimes leading to legal action and the courts—are not unusual.6 Even when conflicts do not arise, the designer faces many opportunities to exercise “designer's discretion” in choosing among equally acceptable design alternatives. Hence, there are a number of difficulties or “problems” inherent to the design process, which are sources of disagreement about the distribution and fulfillment of responsibilities. First, as noted in Chapter 1, there are no established guidelines on what constitutes “competent” A&E services or on what is “reasonable” with regard to A&E responsibilities. The subject is almost always treated anecdotally, and stories of failure and success highlight the basic deficiencies in discussion to date. The committee found that there has been virtually no broadly applicable quantitative analysis to provide objective bases 5   For further discussion of this function, refer NRC, 1991. 6   In these cases, procedures for conflict resolution short of court proceedings are an appropriate concern. See Chapter 5.

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT for establishing a “realistic and reasonable standard of care” for A&E firms.7 It is obvious but often overlooked that the A&E firm provides services only to the extent that the owner and procurement agency request and pay for the firm's assistance. The request may or may not take advantage of the full extent of the firm's qualifications and may or may not be clear in conveying the owner's and users' expectations. For example, some agencies prepare preliminary plans and budget documents using in-house staff and little design analysis, while others may employ an A&E firm to undertake studies that will become a basis for subsequent design by other A&E firms. The monetary budgets, time schedules, and other requirements established by the owner and procurement agency determine, to a large degree, the A&E firm's ability to deliver assistance to the extent of its qualifications. Another sometimes overlooked feature of the process is that the capabilities of the construction contractor, general market conditions, and unforeseen events (including “acts of God”) influence how well a facility conforms to drawings, specifications, schedules and budgets. For example, requirements to accept lowest lump-sum bids for construction contracts or to set certain contracts aside for award only to small or disadvantaged businesses may lead to contracting with less experienced constructors. 8 While these points suggest why problems may occur even when the A &E has done a “good” job, it is also true that all A&E firms are not equally well qualified to provide advice and 7   The data that the committee found were useful but limited in scope. See Appendix C. 8   Another problem cited by A&E professionals and agency personnel is contractors who are adept at submitting qualifying low bids to win a contract and then filing claims for “extras.” Such contractors file these claims for any work deviating in the slightest from the specifications and drawings, and this increases the final construction cost substantially over the bid amount. Some contractors develop a reputation for these practices.

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT assistance on any particular facility development project. For example, very complex or technology-intensive facilities (e.g., acute-care and advanced surgical hospitals, biotechnology and nuclear chemistry laboratories) may challenge the capabilities of any firm, and procurement policies or geographic location may limit the ability of an agency to secure the services of A&E designers with experience on such projects. The size of an A&E firm (e.g., number of employees) and current workload are sometimes significant factors in determining whether staff are available at a particular time and place. The time and effort required to determine fully the current capabilities of any particular A& E firm may exceed the levels that agency officials are prepared to provide, although formal presentations of the qualifications of the firm and its key staff provide useful evidence. The process depends to a large extent on teamwork, and the difficulties of coordinating any two or more organizations may be exacerbated by procurement restrictions (e.g., forbidding discussions with constructors prior to contract bid selection, lateness in selection of A&E firms), interagency and intra-agency conflicts, uncoordinated consultant team management, or lack of clear designation of a leader when more than one A&E firm is involved in design. The committee agreed that, in general, management can be more effective, and responsibilities more clearly met, when accountability and authority are not distributed among many people but, rather, rest with a single individual within each participating organization. UNIQUE ASPECTS OF FEDERAL FACILITIES PROCESS In addition to these generic sources of difficulties, the building process for federal facilities includes some features that differ from general (i.e., private sector) practice:

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT For basic design services, federal legislation imposes limits on design fees of 6 percent of estimated construction cost.9 Various agencies interpret differently the scope of work to be provided within this limitation, and agency personnel may vary in their efforts to restrict design-related budgets. General government policy requirements are imposed, which are unrelated to the concerns of any particular facility.10 These requirements may limit the A&E's options in design and the procurement agency's options in selecting an A&E firm or constructor. A&E firms must be familiar with a particular agency's design criteria, specifications formats and conventions, procurement practices, and standard terms, all of which may differ from those in common use in private sector facilities development. Even when the requirements are the same as those in the private sector, they may be presented in government publications that repeat rather than make reference to more widely used documents. Careful reading is then required to assure that requirements are not different. Government budgeting procedures often place an emphasis on reducing initial construction cost, sometimes at the expense of increases in longer-term operating and maintenance costs.11 This problem occurs in the private sector as well. Federal agencies procure A&E services according to the provisions of the Brooks Act (P.L. 92-582)12 and the Federal 9   In 1992, there were five different statutes that established this limitation (FCC, 1982). Many state governments have similar fee schedules or limitations on payments for design services. 10   Such federal policies include “buy American” restrictions, open competition, and preferential treatment to small or disadvantaged firms. 11   For example, changing materials used for floors or roofs to less costly and less durable options will reduce construction costs but increase maintenance and repair costs over the course of a building 's decades-long service life. 12   This law is presented in Appendix E

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT Acquisition Regulations. This administrative framework establishes a qualifications-based selection system. The system is typically applied through a staged review of standard presentations of A& E firm qualifications, submitted in response to an agency's request for assistance. Firms are rated in order of preference, and the agency enters negotiations with the most highly rated firm. The resulting contract (assuming negotiations are successful) include a price that is typically a fixed, lump-sum amount referred to as the fee. There is seemingly widespread agreement among A&E professionals and federal agency staff that government design fees are generally adequate and that the legislative limitations do not represent a substantial barrier to achieving quality facilities. One reason is that agencies procure a range of special studies, reviews, and other services from A&Es and other building professionals, outside the scope of basic design. According to agency personnel, total spending on A&E design-related services (including programming, site investigations, criteria development, research, and other activities) can easily amount to 10 to 14 percent of construction cost. However, an effective fee-negotiation process requires that both parties to the negotiation have a good understanding of the scope of work to be conducted for the fee paid and that these parties reach meaningful agreement on both scope and fee. Committee members noted that some agencies have increasingly placed responsibility for negotiation and agreement in the hands of “procurement specialists,” who are well trained in dealing with the complexities of the Federal Acquisition Regulations but lack experience with design and construction of facilities. When such specialists are not advised by qualified professionals or choose not to follow their advice, this approach may reduce compatibility, communication, and fair negotiation between the A&E firm and the agency. In the interest of obtaining the contract, the firm may sometimes accept terms that are unfavorable and even unrealistic. This strategy is then a source of problems for both parties.

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT Reliance on procurement specialists is typical in the government's purchase of large-scale weapons systems and commodity products. However, the committee questioned whether adaptation of the procedures used in such purchasing is appropriate to procurement of A&E services. Every facility design produces a unique product, and flexibility in the designer selection and contracting process is needed. Factors considered in A&E firm selection should always include present capabilities and past performance and other such indicators of qualifications. While recognizing that government agencies have a fiduciary responsibility for use of public funds (as do school boards and corporate boards of directors), the study committee found, in general, 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 foster adversarial relationships than do procedures used for comparable projects in the private sector. Some firms tend to avoid the perceived burdens of competing for government work, while others favor it and become adept at working within the process. Because of this, government agencies have a smaller group of A&E firms from which to choose. Principals of smaller A&E firms assert that government procurement procedures make entry into the government design market unaffordable for their firms. Based on the testimony presented and their own experience, the study committee's members agreed that the government's process for procuring A&E services is slow in comparison to private sector practices, and slower than necessary. One to four months should generally be adequate to select and enter into a design agreement with an A& E firm. When the process takes longer, the firm's client (i.e., the agency) is more likely to find fault with the firm's fulfillment of its responsibilities, due to changes in the firm's staffing or approach to the assignment, which may occur. The agency's fault-finding in such cases is often unfair, because the firm cannot be expected to hold personnel in reserve, absorb the costs of changed business conditions, and otherwise provide the precise services offered

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ON THE RESPONSIBILITIES OF ARCHITECTS AND ENGINEERS AND THEIR CLIENTS IN FEDERAL FACILITIES DEVELOPMENT months earlier. The study committee recommends that agencies establish targets for reducing the time required between the agency's request for qualifications and the issuance of the notice to proceed with design. In view of the experience at several agencies, a 50 percent reduction in elapsed average time may be a reasonable target. In contrast to design services, construction is procured typically by competitive bidding and is based on lowest bid cost for construction of the facility described in drawings and specifications that are prepared by the A&E firm. The Federal Acquisition Regulations and supplemental regulations used by individual agencies present the procedures to be employed, which are similar to those used sometimes in the private sector. However, many private sector construction contracts are negotiated less formally and without unrestricted competitive bidding. The A&E designer may sometimes advise the owner on selection of a constructor and work with that constructor to ensure that the facility is constructed according to design intent. Such activities are normally beyond the scope of design work, and the A&E firm receives compensation beyond the amount paid for design. When there is to be competitive bidding, the firm may avoid or be prohibited from contact with prospective constructors, to assure that competition is open and unbiased. A &E professionals sometimes claim this separation limits the designer 's ability to ensure that facilities can be efficiently constructed according to design.13 Some federal agencies are experimenting with ways to maintain fair competition while permitting closer contact between A&E firms and constructors. 13   The term “constructability” is used for this analysis. Agencies or private sector owners (and sometimes the financial institutions that provide mortgage or construction loans) may secure advice from constructors or special consultants to assess the constructability of a particular design.