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Best Practices for Review of RFP Language and Supplementary Conditions to OAA 600 and Other Client-Architect Contracts—Excerpt 2

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 one 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 Excerpt 1 in this series, click here.)

2.2       Standard of Care

Like express warranties and guarantees, practices must avoid terms and conditions that increase the standard of care to that which exceeds anything reasonable or what is required by the Architects Act and Regulation 27 and at law. The standard of care does not require performing services perfectly. To determine negligence, performance is measured against what architects practising in the same area, in the same or similar locality, under similar circumstances, would have done in similar situations.

Examples

Example Clause 1:

Without prejudice to any other right or remedy available to the Client, the Architect shall promptly correct, at its sole cost and expense, errors, omissions or deficiencies in the Instruments of Service and services not in accordance with the requirements of this contract.

Implications:

The client expects perfection. The architect must have perfectly complied with the contract requirements or must absorb the entire cost of achieving perfection regardless of any prior acceptance by the client. This standard of care far exceeds anything reasonable, required by the Architects Act and Regulation 27 or at law.

Example Clause 2:

The architect shall perform the basic services for the benefit of the client in accordance with the highest standards of practice observed on successfully completed projects similar to this project designed by the architect and firms of comparable size, experience and…

Implications:

The client wants the highest standard of performance over and above the professional standard of care required at law.

Example Clause 3:

The Architect shall not, through any act or omission, do anything that will result in the Client being considered the "constructor" under occupational health and safety legislation.

Implications:

The architect has no authority to control or direct the client’s actions or to be advised about what the client intends to do. However, if the architect does anything or fails to do anything (e.g. warn the client), and the client becomes the constructor, then the architect may be in breach of the contract. This may apply even if the architect is ill-informed or unaware of the client’s actions.

Example Clause 4:

General Review means review during visits to the Place of the Work (and where applicable, at locations where building components are fabricated for use at the Project site) at intervals appropriate to the stage of the construction that the Architect in its professional discretion, considers necessary to become familiar with the progress and quality of the Work and to determine that the Work is in total conformity with the construction contract documents, and to report, in writing, to the Client, Contractor and chief building official.

Implications:

General Review is defined in Section 1 of the Architects Act and is elaborated on in Practice Tip 5 and Regulatory Notices 6, 7 and 9. The redefinition of the term raises the standard of care to perfection, by requiring the determination of strict, 100 per cent, total conformity by the contractor. This would only begin to be possible if the practice had a full-time representative observe each and every construction worker and manufacturer’s employee every minute of every day they were working on the project, and each batch of every product was fully tested. It is questionable whether any client would be willing to pay for that level of service or inspection and testing; hence, the appropriate language is ‘general conformity’ with the standard of care and the provision of ‘general’ review.