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

A&E professionals as a group provide billions of dollars of services annually.¹ Much of their work is accomplished without major disagreements or disputes. However, as the preceding chapters illustrate, disagreements do occur, some of which have bearing on the responsibilities of A &E firms and their clients. As in most fields of human endeavor, the participants often try to resolve their disagreements without substantial conflict. Statistics on court actions and insurance claims histories —difficult to gather, in any case—are therefore unlikely to be accurate indicators of the scale or scope of any problems that may occur regarding A&E responsibilities.

As has been described, A&E involvement in federal facilities development is concentrated in the design stages of the process.

During these stages, the result of the A&E firm's work is reflected primarily in the drawings and specifications documents that describe the facility to be constructed.

To the extent that it is cost-effective to do so, agencies seek to avoid problems in the beginning, so that they don't need to be corrected later in the process. In principle, such avoidance should make it easier for the A&E professional to fulfill his or her responsibilities. Several strategies are useful for avoidance.

Selecting an A&E firm that is likely to perform responsibly is an important first step. The basic policy that work for government agencies must be open to all qualified firms underlies the competitive bidding procedures used to solicit and select most government contractors. For A&E services and other professional services for which competition on the basis of price alone is inappropriate, agencies have developed quality-or qualifications-based selection procedures that facilitate the screening out of clearly unqualified firms, including those who may be less likely to fulfill their basic responsibilities. These procedures depend generally on the firms' presentations of their qualifications in a standard format.² While the format used is flexible, agency staff and A&E firms sometimes complain that the forms do not permit sufficiently detailed and specific information to be presented in order to allow reviewers to distinguish between firms that are basically qualified and those that may be outstandingly well qualified.

To make this distinction, individual agencies have developed their own procedures for evaluation. The State Department, for example, appoints a prestigious three-member architectural advisory board that reviews and ranks the list of candidate firms for design of U.S. embassy facilities. Final selection rests with State Department officials, but the advisory board's judgments have weight in that decision, which thereby introduces an element of peer review that may consider how responsibly a firm is known to perform. The state of Pennsylvania has a similar procedure, which uses a five-member selection committee appointed by the state's governor.

The A&E firm's task must be realistic, and this means that agencies need a reasonable construction budget. To help improve early cost-estimating ability and thereby reduce some of the problems that arise during initial appropriation programming, the Air Force has developed its parametric estimating³ program (PEP). The program, which is used to support preparation of authorization requests on Form 1391, has been found to produce more-accurate early cost estimates than other systems, which reduces the probability that established budgets will be found in design stages to be inadequate. The PEP is being considered for adoption throughout the military services. Some agencies have found that involving the design A&E professionals in the

programming phase reduces the chance that disagreements or conflicts will arise in the design phases.

Recognizing that lack of effective communication among all parties to the facility development process and of continuity of staff involvement are sources of perceived problems of A&E responsibility, agencies are experimenting with a variety of specific mechanisms in the design and construction stages of the process. The Army Corps of Engineers, for example, encourages “partnering” on appropriate projects, which brings the designer and constructor together earlier, with agency staff, to form an effective team working toward the common goal of project completion. Other agencies, including Naval Facilities Engineering Command and National Aeronautics and Space Administration, have experimented with similar procedures. Some agencies have been attracted to design –build procurements or indefinite quantity contracts to achieve quick response and personnel continuity.⁴

In many cases, government staff involvement in the design process makes it difficult to distinguish who is responsible for particular problems that occur in the contract drawings and specifications. The A&E professional's certification of a design is meant to indicate that all applicable codes and standards of professional practice have been met, but federal agencies, not

strictly subject to local and state government regulation, may not insist that A&E professionals place their stamp or seal on drawings (i.e., professionally certify their work). In one case cited, agency staff routinely instructed A&E professionals not to stamp their drawings, so that the agency could make changes without (or so these agency staff presumed) totally negating the professional's responsibility for those drawings. A&E professionals should always stamp their drawings.

In general, agency staff devote considerable effort to reviewing drawings and specifications that are submitted at key points in the design development process. In subsequent stages of design, the A &E professional is expected to deal with questions and concerns raised during these reviews. Often, however, these reviews are conducted by agency staff who lack extensive practical experience in facility development. Such reviews tend to focus more on the details of whether the agency's design guidelines have been met than on the functional aspects of the design, where agency experience from older facilities can make the greatest contribution to facility quality. The value of these reviews is dubious, because they do not ensure that users ' needs are being served but add time and cost to the design process.

In addition, reviews conducted at the various stages of the design process are often conducted by different agency personnel. This requires that the project be fully explained at each review. Questions resolved in early reviews may be raised again later. The lack of agency staff continuity is a source of inefficiency for both agencies and their A&E firms.

Some agencies have experimented with permitting the A&E firm to proceed directly from 0 to 100 percent design, without major intermediate reviews, as a means of reducing the disruption and loss of identifiable responsibility that these reviews can cause. However, agency staff must work to maintain regular and effective communication with the design

team in order to avoid the risk of discovering late in the design process that the design team has unwittingly failed to maintain focus on objectives the facility is to meet.

Regardless of their frequency, reviews should be substantive in nature, addressing the facility's likely ability to meet the users' needs. Such reviews must be conducted by adequately experienced staff and should ideally be conducted in similar fashion and by the same staff at each stage in the design process. If experienced agency personnel who are knowledgeable in the practical aspects of facility development 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.

When conflicts do arise, even when agency technical staff feel the A&E firm clearly is at fault, agency representatives claim they find it difficult to take action. The strongest sanction available to the agency is the threat of court action to enforce the responsibilities of the A&E firm, but agency legal staff are often reluctant to go to court because of the expense of litigation and the lack of bases for defining adequate performance. In addition, small A&E firms may carry no professional liability insurance and lack the resources to pay substantial damage awards.

When problems are serious during project development, agencies may, in principle, terminate their contract with the A&E firm. (A&E firms may terminate the contract as well but generally are less inclined to do so.) However, administrative procedures make such terminations time-consuming and costly for the agency. Agency personnel have found that it may take more than half a year to replace an A&E firm whose

performance was unsatisfactory. Agency staff therefore frequently choose to try to carry on with the unsatisfactory firm.

A&E firms wishing to continue in business recognize that failure to fulfill perceived responsibilities can threaten future opportunities for work, and they generally will try to ensure that their clients are satisfied. The Office of Federal Procurement Policy is currently (as of May 1992) circulating for comment a proposed policy statement requiring agencies to consider past performance in contractor selection. ⁵ This policy would apply to all types of government contracting, including selection of A&E firms.

A few agencies have already made efforts to develop comprehensive files on the past performance of A&E firms. The Corps of Engineers and National Aeronautics and Space Administration each have established computer-based data files that include A&E contractors, and the Corps ' system is gaining increasing usage by other agencies in addition to Corps field offices.

One concern about such systems that has been expressed by A&E professionals is that they should have the opportunity to review the record and correct misunderstandings or errors. The proposed policy of the Office of Federal Procurement Policy requires that contractors be provided with copies of rating forms and other related records before they are entered into the database and that contractors be allowed a minimum of 15 days to appeal any rating.

Based on the commentary of government agency staff and their own experience, the members of the study committee concluded that agencies should pursue a broader range of actions for encouraging and supporting responsible performance by A&E firms. Further, agency staff are often too restrained (by both internal agency controls and external forces) in talking action to correct problems when positive action is appropriate.

On the other hand, A&E firms are rightfully concerned that agencies may be prone to make faulty judgments about the degree to which A&E responsibilities are not being met. Changing administration policies and government budgetary deficits have combined over the past several years to reduce staffing levels and increase workloads in many government agencies, and the trend seems likely to continue for at least the next several years. In particular, “procurement specialists” trained primarily in contract negotiation and review rather than design and construction, have been playing increasingly greater roles in facilities development. Many A&E and agency professionals express concern that these specialists have less direct interest in the timely and effective delivery of a quality facility than in conformance to established contractual relationships and regulations that may or may not be accurate and appropriate. On the other hand, many outside observers suggest that few private sector owners have substantial technical staff to work with A&E firms and question whether sizable technical staffs are needed by government agencies.⁶

However, whether it is because of growing workloads or reduced technical sophistication, agencies are likely to find themselves increasingly dependent on the services of A&E firms for procuring needed facilities. More agencies may, of necessity, make increasing use of design–build, public–private ventures,⁷ construction management contracts, or other procurement practices that shift work from agency staff to the other participants in the process. Such growth in the scope of services that A&E firms are asked to provide is likely to increase the perception that such firms are not meeting their responsibilities.

As stated previously, the committee agreed that progress in dealing with purported problems of A&E responsibility will require that both sides work together for change. Chapter 6 explores the key issues to be considered in working for such change and presents the study committee's recommendations for how to improve understanding and management of both A&E and agency responsibilities.