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

Despite its complexity and the ambiguity of participants' roles and responsibilities, the process of facility design and development has evolved over many years and is generally effective in yielding good-quality facilities that are safe and serve their users well. Nevertheless, participants in study meetings and workshops, both government agency personnel and members of the A&E community, express concern that responsibilities, of both A&E firms and their clients, in federal design are too frequently not being met.

Sometimes these concerns are reflected in “horror stories” told by A&Es or agency personnel—tales of unfair management, poor judgment, or bungled communication. (See box 4-1 and box 4-2.) Such experiences attract disproportionate attention when facility development professionals gather to discuss their problems. More typical are the day-to-day management challenges inherent in a production process that involves many participants and distinct, often discontinuous, stages that extend over many months.

To explore these concerns more fully, the BRB held a workshop in Washington, D.C., on March 10, 1992. Approximately 50 invitees representing a broad cross section of federal and state agencies and the A&E community attended. ¹ The workshop provided a forum for open give-and-take on the

concerns felt by the principal participants in federal facility development and for consideration of what might be done toimprove the process. Key points of the workshop discussion are summarized in the following sections.

The government, as an owner and user of facilities, is undergoing change. In the early 1990s, cutbacks of staff and other resources have been widespread at almost all administrative levels. The scope of responsibilities of agencies is changing, and senior management levels are being reduced

and eliminated. This is occurring particularly in the military services and in the Department of Energy programs that are closely related to the military services, but other agencies are feeling the trend as well. Some agency officials anticipate further very substantial staff reductions, perhaps on the order of 25 to 33 percent of initial personnel levels. One result may be that more work and more responsibility are going to go to the A&E community. It means also that more difficulties will be encountered if government agencies and their A&E firms do not have a good understanding of their mutual responsibilities. (See Box 4-1.)

The A&E firm's primary point of contact in facility design and development (the firm's immediate client) is a procurement agency or office. The Naval Facilities Engineering Command, the Army Corps of Engineers, and the General Services Administration, the largest such agencies, each manage design and construction of facilities for their own agency 's use and for other agencies. But even in the agencies that oversee their own facilities entirely, such as the Department of Veterans ' Affairs and the Public Health Service, facilities procurement is managed by offices separate from the operating programs that carry out the agencies' principal missions.

Hence, participants in the workshop asserted that first concern for the government agency must be the customer for facilities, the operating unit. Personnel in these operating units—the line Navy, staff of the Department of Veterans' Affairs hospitals and others—do not have time to worry about whether their facilities are energy-efficient or whether the roof will leak. These operating personnel may not understand why it routinely takes nine months to hire an A&E firm for design. Yet, if one wants to achieve quality facilities, this customer, the user, must be adequately represented in the facility process.

Agencies operate under the Brooks Act and seek generally to hire the best qualified firm that can be found. Agencies are trying to buy competency and an appropriate level of expertise for the job, and they seek to negotiate a fair and reasonable fee for these services. Determining how to judge what is

“competency,” “fair,” and “reasonable” is a complex task. The owner (i.e., the procurement agency) must be able to express its needs and its criteria and standards clearly. When this is done, the A&E firm can respond. Unlike the private sector, where state and local government participate in setting these criteria to protect public health and safety (e.g., through code compliance), for federal facilities, stating requirements for the A&E firm is entirely the clients' (i.e., the federal government's) responsibility.³

Federal policy requires that, in setting these requirements, the agencies concern themselves with such matters as energy conservation and environmental compliance, as well as life safety and health. Because compliance must be documented, such issues may then take on relatively greater importance than they would in similar projects for private sector owners. Like any owner and user, the agencies must concern themselves with functionality of the facility, but in many cases, the government user is separated from the agency that works with the A&E firm. These are concerns that the firm must understand.

In addition, the agency must be prepared to respond to questions from Congress—operating in the fishbowl, some staff call it—and sometimes to intense public scrutiny. Federal agencies are compelled to allow vendors of all sorts to compete to provide products and services and so tend to describe needs in generic terms that do not preclude any particular brand or vendor. The agency and the A&E firm must work together to address these concerns.

These concerns do not necessarily imply the need for grand architectural statements or technological virtuosity. Agencies require a very wide spectrum of facilities, high tech, low tech, urban, rural, large, and small. Sometimes the work required by

agencies is not exciting. Nevertheless, the agencies must depend on the A&E firm for competent assistance.

Participants in the BRB workshop noted that federal agencies, like any owner, pay dearly for delay.⁴ Any perturbation during construction that is caused by the design process is extremely costly. When a facility cannot be built the way it was drawn, agency professionals lose credibility and Congress demands accountability. Nobody wins in these situations.

Who is responsible? Should agency staff have to check the work of their A&E firms? Can the firm be required to certify that its designs can be built, and built within budget? What can be done to avoid diverting agency staff attention to the task of explaining technical design details to congressional staff? There is no clear accountability in such decisions.

Some industry observers claim that federal agencies pay 30 percent more for a federal facility than owners in the private sector would have to. Whether this differential truly exists is difficult to verify. ⁵ Some analysts claim that congressional limitations on contracting procedures and wage rates lead to higher costs. Others attribute apparent cost differentials to the government's long-term interest in operations over the 50- to 75-year service life of the facility and its consequent willingness to invest more heavily in durability and maintainability. Unlike the private sector, government agencies have no tax incentives or other financial inducements to plan for shorter service lives and for subsequent rehabilitation or quick sale when needs change. In fact, agencies do not often have that opportunity, even when it makes good sense from the user's point of view.

A&E professionals sometimes complain that the government avoids using trade names in specifications and that this adds to the work an A &E firm must do for a limited fee. However, the

firm must recognize how important open competition is on government projects and how much effort can be required to ensure that all potential suppliers have the opportunity to bid. In one case, for example, a federal agency undertaking construction of a very small building had to devote 415 person-hours of professional time trying to answer a congressional staff member's questions, because one of the congressman 's constituents was upset that the products of his brick manufacturing business did not meet the specifications.

Each time a federal agency wishes to specify a particular product, agency staff perform a risk-benefit analysis. This analysis compares the risks to the government of using the trade-named product (e.g., higher cost or limited supply) with the benefits, such as meeting specific service requirements. Many agency officials find that the need to perform and defend such an analysis can delay a project, and they avoid specifying a single trade-named product.

Within the various constraints imposed on government projects, agencies are trying to find ways to improve quality. One way may be to cut the time required from initial advertising of the project to project start. The Brooks Bill procedures are applied in five steps: (1) a request for submittal of qualifications is placed in the Commerce Business Daily,⁶ (2) a short list of the most-qualified firms is selected from among those responding, (3) firms on the short list are interviewed, (4) a selection is made, and (5) the award is negotiated. Only then does the project start. These five steps should not take nine months to complete.

Participants in the workshop told of one agency that had studied the process, concluding that it should be achievable in as little as 30 days. Completion within two and one half to three months should be routine. Time is now being consumed in administration and in routing forms and memoranda for coordination and formal approvals. Tasks now done

sequentially could be performed in parallel. Also, the government auditing of contractor's costs is a requirement that can delay the process for up to three months. For some agencies, the auditing is done by personnel of other agencies, who have little concern for the underlying project schedule. The agencies must work harder to realize improvements in the process.

Once the A&E firm is working, some federal agencies ask for quality control plans. In developing these plans, some firms have a very formal and rigorous approach, while others have approaches that are less well defined. Some agencies have begun to gather documentation on the past performance of A&E firms and then use that information in the firm selection process.⁷ The system is a positive incentive for people to do a good job. Unfortunately, when an A&E firm is performing poorly, the agency may sometimes be prevented from taking action by a procurement process that can take seven months to hire a replacement.

When good performance is maintained, an A&E firm may have a lasting business relationship with an agency, which can extend over a period of decades. Some agencies, in the past, have felt compelled to spread work among as many firms as possible and have thereby denied themselves the opportunity both to reward good performance with repeat business and to enhance the likelihood of success by retaining proven professionals. Agency staff participating in the workshop asserted that such practices have generally been curtailed in the federal sector and that good performance can lead to repeat business for the A&E firm.

Of course, an A&E firm depends on its individual professionals to provide this good performance. Some federal agencies have found that after the most qualified A&E firm is selected, the individuals offered during the selection process are diverted to other assignments. Sometimes this diversion is unavoidable, a response to the uncertainties of business and the delays in government contracting and decision making. An A&E firm cannot afford to have professional staff sit idle for the nine months (and sometimes more) it can take for a government agency to execute a contract with the firm, and agencies are unwilling to pay the costs of such delay. Sometimes, however, reassignments seem to be simply the result of the attraction of higher fees or the continuing need to develop new business. Many participants in the BRB workshop felt such practices could not be condoned.

Federal agencies recognize that their design procurement process, shaped by the Congress's budgeting and appropriations procedures and agency bureaucracy, can introduce problems the A&E firm might not face in the private sector. In a typical project, design goes through three distinct stages. First the A&E firm will go to “schematic” or “35 percent”⁸ design and then have to respond to hundreds of comments and changes in direction from the agency. Then design advances to the “65 percent ” or “design development” submittal, which again elicits hundreds of comments and introduces conflicts and changes. The third stage, “95 percent” or “precontract” submittal, is also subject to review before final drawings and specifications (which become the construction bid documents) are prepared.

Agency staff participating in the workshop felt that so long as the current framework of congressional budgeting remains in place, this process and its accompanying problems are unavoidable. Agencies are trying new procurement systems (see Chapter 5), but these new systems are unlikely to take entirely

the place of the present system. A&Es firms are sometimes unrealistic in their expectations of what agencies can do within the constraints of the government processes.

Agency staff recognize that A&E firms must adjust to this system while coordinating multiple disciplines, subcontractors, and consultants, often at several locations. There are time limitations and fee limitations and budget limitations. However, agency staff speaking at the workshop asserted that the error rate is too high. They feel that too few A&E firms are adequately checking their work. Resident engineers of federal agencies who supervise construction projects claim proper coordination is lacking among the A&E disciplines. These agency professionals claim that changes are needed to get the job done right the first time.⁹

A&E professionals participating in the workshop noted that it is popular today to talk about facility development as a collaborative process. Many people talk about “the team” on which the A&E firm and the agency are meant to play together, but it seemed to many of the A&E professionals at the workshop that the forces holding the players apart are greater than those bringing them together. (See Box 4-2.)

The A&E firm and the agency may both seek to focus on the project, but each member of the “team” must contend with distinct needs and requirements that influence individual careers and lives. The firm and the agency must each answer to outsiders' inquiries, live within budgets, and work hard to do more with less.

A&E professionals are trained in universities and guided by state registration and licensing laws to act and perform competently and professionally. The volunteer members of

professional organizations like the American Consulting Engineers Council, the American Institute of Architects, the National Society of Professional Engineers, and the American Society of Civil Engineers all work diligently to enhance standards of practice. Through this system, the U.S. A&E community has achieved a level of excellence that many people feel yields the best architecture and engineering in the world.

A&E participants in the workshop noted that some facility owners—many federal agencies, in particular—choose not to adopt standard commercial practices in facility development. ¹⁰ Each agency has its own procedures and contract format. In some agencies, the forms change from one division to another. The A& E firm 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 situation is most clearly illustrated in the case of specifications. The Construction Specification Institute and the American Institute of Architects each have devised model standard specifications that are clear, concise, and accurate. They help an architect or an engineer describe his or her client's needs and enhance the ability to forecast performance and construction cost. They are widely used in the industry. Yet most federal agencies do not use either of these models, and even those few who have adopted more than just the general framework have made enough changes that an A&E firm must give careful attention to the government documents to ensure that a special feature is not missed.

Of course, these commercial models do use product trade names. Concern is sometimes expressed that trade names inhibit free competition among suppliers. However, as the development of personal computers has demonstrated, a

company with trade name recognition may set high standards to protect a new market but still face competitors who can meet and exceed these standards, often at lower cost. IBM's early entries in the PC market were hugely influential on both hardware and software, and that company still produces a well regarded product. But many “clone” competitors have developed, some taking significant market share. On the basis of such examples, some people argue that use of trade named products in specific projects for design and construction in no way limits competition.

Some federal projects are in fact being developed with use of trade names and Construction Standards Institute specifications. Broader adoption of these private sector practices would help the A&E community to achieve a more consistently high level of performance.

Several agencies have joined together to make their guide specification systems available in a computerized form initiated by the National Aeronautics and Space Administration in 1965. The National Institute of Building Sciences sells a database of agency specifications on compact disk media (CD-ROM), under the names Construction Criteria Base and SPECINTACT, that can be used by any A&E firm with the proper computer hardware and software. Many A&E firms have made substantial investments in computer technology, but not everyone has adopted the same hardware and software. For some A&E firms, gaining access to the Construction Criteria Base requires a new investment and staff training. Again, this investment has little to do with the A&E firm's basic skills, competence, or past experience.

Nevertheless, the system is said by some A&E professionals to be a major step in the right direction. Being able to see easily the often small variations from one agency to another is likely to lead, over the longer term, to greater uniformity of agency practice. Many professionals feel that greater similarity to private practice is warranted as well.

A number of A&E professionals expressed concern about the impact of the government 's slow designer selection process on

the firm's ability to assign personnel productively. During the sometimes extended period between solicitation of proposals and execution of the design contract, key personnel must be kept in readiness or reassigned to other more immediate projects. Such reassignment risks annoying the client agency and damaging the firm's reputation, but keeping personnel in readiness can be costly.

Another area of concern to many A&E professionals is the style and procedure for negotiating fees paid for design work for federal agencies. The A&E firm typically makes a good faith effort to estimate the amount of work involved in a project and can discuss the technical bases for this estimate. However, at the negotiation table with some agencies, the firm often must negotiate with a contract specialist who typically has limited experience with the workings of the design profession and does not have responsibility for project completion. This contract specialist depends on a government technical representative for his or her understanding of the particular tasks and effort involved in the procurement.

In this setting, it is not unusual for the government's estimate of effort to be different from that of the A&E firm. Such differences can be caused by differences in understanding of what the project requires or by inexperience or mistakes that lead one party in the discussion (or sometimes both) to make a bad estimate. The government also makes its own analysis and estimates of what hourly salary rates are appropriate. A&Es sometimes feel these estimates give inadequate recognition of the expertise of individuals and demands for their services. The A&E firm may ask to know the basis for the government's total estimate, the analysis of the tasks to be performed, but is typically told that such information is privileged.

The result is that the A&E firm has great difficulty explaining that the difference in estimates may be a result of a bad government estimate. The firm also cannot learn if its own estimate is based on a misunderstanding of what the agency wants. The A&E firm then perceives the negotiating

relationship as somewhat dictatorial, very adversarial, and uncongenial to teamwork.

The adversarial feeling continues when the A&E firm is told by the agency's project manager not to deal with the ultimate customer, the user. “They will tell you what they want,” the firm is told, “not what the budget allows. Follow the scope of work.” That is not the teamwork and focus on the project that many A&Es believe is needed.

Even if the overall performance of the A&E community, as a whole, is good, unexpected events can occur, and mistakes are sometimes made. However, agencies and A&E firms alike lack the data to discuss in any comprehensive manner how often this happens and the consequences. All parties need a more objective basis for assessing the performance of A&E firms. The number or magnitude of change orders in construction is one important measure, but other measures may be needed as well. Whatever the measures, care is required to ensure that responsibility for changes is reasonably and fairly apportioned. The great variations in uncertainty and complexity among projects must be recognized. Care is needed to ensure that a firm with a good record is not permanently penalized because of a single problem project.

In any case, there must be adequate data to characterize the standard of care to which agency and A&E staff should manage and to infer possible causes for those lapses that do occur. It might be possible to achieve a situation in which there are no change orders on a project, but at what cost? There is currently too little basis for determining the desirable balance among the effort put into avoiding mistakes, the chance that mistakes will occur, and the consequences of those mistakes.

Some people assert that an A&E professional, as a professional, should be expected routinely to design according to the scope of services; that if the professional is negligent in that work, he or she should be held responsible for correcting the errors without cost to the government; and that if the design is faulty, then the A&E firm should be liable to the government for any damages caused by the work.

However, there is neither a generally accepted definition of “negligence” nor a set of standards for measuring its severity. That may be one reason why the number of liability cases filed against A&E firms is claimed by some knowledgeable observers to be relatively low compared with the number in other professions.¹¹ Despite the low rate of liability claims, participants in the study asserted that all is not well and that the standard of care for A &E firms seems even less well defined in government practice than in the commercial world.¹²

Reviewing such anecdotal and impressionistic evidence as that presented in the BRB workshop and summarized in the preceding two sections in light of their own experience, the members of the study committee concluded that problems of A&E responsibilities are generally the result of faults in both A&E firms and government agency staff and procedures. There are unquestionably cases of inadequate performance and sometimes unprofessional behavior by A&E firms, but many of the agencies' complaints are related in some degree to the responses of A&E firms to agency practices. At the same time, many of the complaints raised by A&E firms stem from agency practices initiated to respond to or avoid problems of

inadequate firm performance. In summarizing specific aspects of the “problem” of A&E responsibilities (see Table 4-1), the study committee found a certain similarity between the shortcomings of A&E firms and those of their client agencies, which are ascribed by each side to the other. Progress in dealing with purported problems of A&E responsibility will require that both sides work together for change.

In general, A&E firms should welcome competent review of their work, so long as preparation for review does not consume excessive resources. However, agencies cannot expect to supervise the firms' work, and must allow them freedom to manage effectively the resources available for the project at hand.

The summary listing in Table 4-1 presents targets for improvement rather than a comprehensive cataloging of shortcomings. Chapter 5 presents the committee's assessment of how well such problems of A&E responsibility are typically addressed now and how improvements could be made.

The workshop and the committee's deliberations raised several broad issues that go beyond the specific problems included in Table 4-1 and Chapter 5. The committee agreed there is a need for better understanding of and agreement on the nature of A&E responsibilities and on appropriate measures of the performance of A&E firms. Solid data should be developed to establish benchmarks for performance and standards of care for A&E services. These issues will be addressed in Chapter 6.