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Code Talk: Challenges for Architects

Most of the architects I have known are not comfortable with codes. They want to comply with applicable codes, but they find them confusing, tedious, contradictory, or even frightening. Codes are always being revised or superseded. It takes time to determine how a combination of applicable codes can be reasonably applied to a particular building type and scale, and it seems that the codes are changed almost as soon as the architect reaches a level of comfort with the requirements.

One of the reasons that it takes more than a little time to determine the application of codes to a specific project is that codes tend to be dense and voluminous texts that are full of "fine print", numerous exceptions and cross references, and hierarchies that are hard to follow (i.e., "Which article has precedence in this situation?"). Further, the architect is usually charged by statute with the professional responsibility to account for the application of numerous, differing codes - on the same project. In some cases, state or local authorities have adopted parts of different codes that cover similar matters, adding their own hierarchies to interpretation of requirements, and the architects are challenged with having to determine how to resolve gaps and conflicts that have not been addressed by the state or local authorities. Codes that include graphic illustrations of requirements are generally easier for architects to understand, because many - if not most - architects tend to think graphically. In that regard, accessibility guidelines that rely on graphic illustrations have been much easier to follow than text-only codes. Code commentaries or handbooks such as those available from ICC and NFPA can be more useful than the codes themselves due to the use of graphic illustrations. Graphic illustrations can also be enlightening for code writing authorities where the illustrations are intended to cover typical conditions, and the pictures themselves may raise questions that are then considered and addressed by the authorities.

Another challenge for architects is how to satisfy the professional responsibility to apply code requirements in those situations where less than full design services are contracted. If contracted services are limited to preliminary phases of design or other design iterations that exclude detailed drawings and specifications, how should the architect account for code requirements in the preliminary design phases, and how should the architect account for code requirements that would normally be applied to the development of detailed plans and specifications? How should the architect alert the owner (and/or contractor) of the need for the owner or contractor to complete the process of code compliance related to parts of the design that are beyond the architect's contracted scope of services?

I recall the advice or direction of one architect employer to make sure that what you do show on drawings is correct. His comment was not really focused on codes, but it could be applied to the question of code compliance in preliminary design. The code requirements to be considered in preliminary design tend to be large scale matters that would govern detailed development of a design in later phases. For example, a schematic design would consider zoning regulations such as building setbacks and building height and also allowable area and height as established by the applicable building code for the intended building use. That would be an appropriate design phase for consideration and documentation of building code construction type. The preliminary code analysis should reveal any applicable requirement for fire walls to divide the project into 'technically' separate buildings, and appropriate locations for such fire walls could be shown diagrammatically on the preliminary plans together with notation referencing the specific code provisions that would govern development of detailed design in a later phase. If it is not practical to even approximately locate such fire walls diagrammatically, those applicable code requirements should be included in notes that relate to the schematic plans. A similar approach can be followed for other code considerations that relate to the preliminary design, such as wheelchair accessible entrances that will require detailed design (e.g., accessible ramps, railings, door approaches, hardware, etc.) in subsequent design phases. Following this approach, each design phase would include code information appropriate to the phase and an indication of further design that is required in a subsequent phase.

One good reason to develop a comprehensive preliminary design approach to code compliance is to lay the groundwork for subsequent design development and documentation that will be performed by staff in the same office or on the same team. Another, perhaps more significant reason, is that architects are sometimes invited to defend themselves against claims of noncompliance where their services were limited to preliminary design and the code matters in question would customarily be applied to a later design phase (e.g., detailed construction documents). While an argument of exclusion by agreement may be valid, the time and cost to wage the argument after the fact may be a greater problem, especially if the project owner has encountered either an unexpected and costly construction change or post-construction change after the architect was dismissed from the project.

Change Orders: Making the Architect's Call on Contractor Claims

When construction contracts are based on drawings and specifications prepared by architects, the need for changes during construction raises questions about the completeness, correctness, and coordination of the architect’s drawings and specifications – in short, questions about the architect’s performance. Of course, change orders may also be precipitated by changes that are beyond the control of the architect, like changes in the project owner’s criteria for the project, or some changes in codes and regulations, or other conditions that were not foreseen or perhaps could not have been foreseen by either the owner or the architect.

Regardless of the actual causes of change orders, architects are commonly judged on the basis of “how many” change orders are executed on their projects. Simply quantifying the number of change orders on a project can be very misleading when it comes to gauging an architect’s performance. Given the possible sources of change orders cited above and also the fact that the architect does not have control over the number of change order requests or claims that a contractor may submit or the number of changes that a project owner may request or direct, it is easy to understand that the quantity of change orders is not an accurate way to measure an architect’s performance. Instead, it may be fairer – though still possibly an oversimplification - to consider the resulting cost of change orders that are related to errors, inconsistencies, and omissions in the drawings and specifications prepared by the architect and to compare the change order costs as a percentage of construction cost to those related to other architects’ drawings and specifications on similar projects that are designed and constructed under similar circumstances (i.e., measuring architects against their peers).

Considering the architect’s decisions in response to contractor claims, the American Institute of Architects (AIA) A-201 General Conditions (2007) include the following provision:

§ 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of, and reasonably inferable from, the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions rendered in good faith.

This requirement for impartiality is also found in AIA standard owner-architect agreements and in various professional regulations and codes of conduct. Yet, given that the architect is typically under contract with the owner and paid by the owner, the architect faces a de facto conflict of interest in evaluating a contractor’s claim for extra cost. Contractor claims are typically related to items of construction that are found to be needed but are not, at least in the contractor’s opinion, apparent on the drawings or in the specifications (“the contract documents”). The challenge for the architect faced with such a claim is to determine whether the needed item is “reasonably inferable” from the contract documents. If the architect determines that the item is required by the contract documents and denies the contractor’s claim, the owner may not have to pay an extra cost for the item, and the owner may be satisfied with the performance of the architect in terms of both the contract documents prepared by the architect and the construction administration services provided by the architect. If, on the other hand, the architect agrees with the contractor’s claim, then the owner may be dissatisfied with the architect on both counts. It takes a different owner attitude to appreciate the integrity that is necessary for the architect to acknowledge an imperfection in the contract documents.

There is no single rule of rightness that applies in every case. Sometimes one party is in the right, and sometimes the other party is in the right, and it is difficult to outline a simple rule for governing these situations beyond the provision of “impartiality” that is established in the General Conditions.

Drawings and specifications may never be perfect, and some would say they never can be perfect. However, drawings and specifications that are complete, consistent, coordinated, and are clear and readable to the extent possible leave less to interpretation; so there is less need for determinations of reasonable inference. With those goals in mind, change orders related strictly to imperfections in drawings and specifications can be minimized.

Another way to consider what is “reasonably inferable” is to ask what a bidder would see (or could reasonably be expected to see) in the contract documents as the basis of a bid (or sub-bid). The question of “inconsistencies” is interesting, because it is not clear that a bidder would actually see inconsistencies in the drawings and specifications that might become apparent to the architect when reviewing a contractor claim. The contractor may have developed a bid based on an interpretation (a complete “picture” of the project, if you will) that considers all of the differing provisions of the drawings and specifications in a consistent way. It is not unusual for the architect to be the one who is befuddled in this responsive review of the drawings and specifications, discovering “inconsistencies” that must now be interpreted in a way that would allow for compliance with a design intent that may not have been clearly conveyed. If it is necessary in the architect’s response to a contractor’s claim to explain numerous contradictions and take exceptions to numerous drawing and specification provisions in order to reach a conclusion that matches the designer’s intent, then the requirement is not reasonably inferable. A less troublesome approach for the architect would be to develop the necessary consistency in the drawings and specifications before they are issued for bidding.