What You Should Know, What to Look For, and What to Be Wary Of
The OAA continues to review RFPs and contracts with the intent of identifying requirements and/or provisions that:
- may be uninsurable;
- require an architect or Licensed Technologist OAA to contract out of their professional obligations as set out in the Architects Act and Regulation 27;
- are a contravention of either piece of legislation; or
- unreasonably increase their obligations beyond those at law.
The following does not constitute legal advice. It is the sixth in a series of excerpts from Practice Tip 39.1 that should assist practices in making a 'go/no go' decision with respect to responding to an RFP or in contract negotiations. Members should familiarize themselves with all of 39.1 and refer to it when reviewing RFPs, and bid and contract documents.
To read previous excerpts in this series, click here.
2. Examples of Specific Contract Language of Concern Examples of Specific Contract Language of Concern
2.7. Specialist consultants
Specialist consultants include land surveyors, and geo-technical or hazardous materials specialist consultants. Typically, they provide information relating to the client’s/owner’s facility or property. The information they provide should be available to all potential consultants at the start of the procurement process. The existing condition of the site and facility makes a difference to the scope and cost of the consultants’ services. There is ample time for the client to investigate such issues before an RFP is issued.
Example Clause 1:
Amend OAA 600 GC 4.3 by deleting everything prior to “:” and replacing with the following:
The Client shall provide information, surveys, reports and services as set out below, where available and up-to-date, the accuracy and completeness of which the Architect shall be entitled to rely upon, unless the Client stipulates otherwise at the time such information, surveys, reports or services are provided to the Architect. The balance of the information, surveys, reports and services shall be provided by the Architect:
This transfers risk for the accuracy and reliability of information relating to what the client/owner owns from client/owner to the architect instead. The scope of work cannot be determined until the client determines if the information is available and up-to-date which will not be until after the contract is signed. Even if the information is available and up-to-date, a simple stipulation by the client means the architect cannot rely on it. If the architect does rely on it, they may end up liable for damage caused by any errors or inaccuracies in the information and any changes required in the construction documents.
Example Clause 2:
The Prime Consultant will be required to carry, but not limited, to the following sub consultants in the proposal fees: Electrical engineering, Mechanical engineering, Civil engineering, Life safety/fire code, Structural engineering, Site surveying, Quantity surveyor/cost control, Interior design, Audio/Visual, Arrange and coordinate the independent inspection and testing, including soil or soil specialist testing.
There is an inappropriate transfer of risk from the client to the architect. If the information provided by the specialist consultants (land surveyor, geotechnical consultant, hazardous materials consultant) is inaccurate or incomplete, it may result in the architect not developing a proper solution, and the architect may have to redesign at no cost to the client and may have to indemnify the client for costs or damages.
Refer to Practice Tip PT.30 “Retention of Specialist Consultants” in order to address this requirement in the most appropriate way. The architect should not accept responsibility for the accuracy or completeness of any services provided by the client’s specialist consultants. Any RFP response should be qualified if accurate or up-to-date information is not available. Any project delays related to obtaining such information should not be the architect’s responsibility.
Note: References to Request for Proposal (RFP) in this document includes Requests for Quotation (RFQ), Requests for Qualifications (RFQ), Requests for Supplier Qualification (RFSQ), Expressions of Interest (EOI), Request for Vendor Qualification (RFVQ), Request for Consultant Services (RFCS), Request for Design Proposal (RFDP), Invitation to Tender (ITT), and other such documents issued to elicit proposals to provide architectural services.