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The OAA continues to review RFPs and contracts with the intent of identifying requirements and/or provisions that:
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 previous excerpts in this series, click here.
2.3 Use of the Words “Ensure”, “Warrant” or “Guaranty”
These words usually mean “make certain” and may create a binding obligation akin to a guaranty. If these words are used inappropriately, the practice may become a guarantor of performance, and such guaranties are not covered under the professional liability insurance “umbrella.”
Example Clause 1: Cost Control: (a) ensure the design of the project does not exceed the approved project budget;
Implication: It is impossible for an architect to guarantee that a design meets a budget. Architects have no control over the costs of labour, materials or equipment, interest rates, foreign exchange rates, supply chain shortages, legislative changes, imposed tariffs, other projects that may go to bid at the same time, catastrophic events, or any of the myriad other factors that determine the bid prices for any project.
Example Clause 2: Referring to the Proponent’s corporate quality control and assurance policy, manuals and systems, describe the approach and methodology proposed to ensure quality of product and outcomes
Implications: Having a quality control and assurance process is good practice. At their best, quality control processes, even ISO-certified ones, result in consistent quality. Nothing in the ISO 9000 series of standards addresses the level of that quality. It is just a system of checks, balances, and procedures aimed at producing a consistent quality. An ISO-certified manufacturer of lower-quality product is going to produce a consistently low-quality product. This clause does nothing to establish a level of quality required even though that was probably the intent.
Example Clause 3: Construction Contract Administration Phase:
(a) provide an appropriate level of site review necessary to ensure the quality specified is obtained with a corresponding inspection report;
(b) ensure that construction site meetings are held and that minutes of meetings are recorded and distributed, along with biweekly progress reports;
(c) supply drawings to the Contractor(s) for recording changes as built; during the progress of the work ensure that the Contractor(s) is keeping as-built drawings up-to-date;
(d) as an agent of the Owner ensure compliance by the Contractor(s) with the requirements of the Occupational Health and Safety Act and its Regulations;
(e) ensure minimal interruption of tenants and building occupants, operations of site systems, security and safety;
(f) direct all concerns related to the Residential Tenancies Act or other applicable legislation, safety, housekeeping, operations and security to the Contractor(s) Site Superintendent and ensure immediate response;
Implications: To ensure something is to offer a guarantee, and guarantees are not insurable. If a claim arises relating to the architect’s failure to ensure that some condition is met, there is no professional liability insurance coverage for that claim.
The use of the word “ensure” is often based on the invalid assumption that architects control or can direct the work of other parties. Architects do not have the authority to force contractors do anything. Architects can determine that work is or is not in accordance with the contract and report conclusions, but ultimately do not have the contractual authority to make the contractor do anything. Similarly, architects cannot force a client or authority having jurisdiction to make a decision in a given time frame.
(a) The use of the word ensure is also often based on an oversimplification of cause and effect, as if periodic site review in and of itself is the sole determinant of construction quality. See item (a) immediately above.
(b) Architects may request or schedule site meetings, but have no means of forcing the other parties to attend nor do they have any control over other factors that may determine whether a meeting takes place or not.
(c) Architects cannot guarantee the as-builts are being kept up-to-date or that all appropriate information is recorded.
(d) Architects are not police to enforce compliance with applicable law. Architects interpret the requirements of the construction contract, not laws applicable to construction operations.
(e) This is the contractor’s responsibility. An architect can only periodically review for compliance by the contractor.
(f) The architect can forward the information, but has no authority over the Site Superintendent nor the priorities assigned to their tasks.
The use of the words “ensure”, “warrant,” and “guaranty” must be avoided in order to preserve PLI coverage. Practices should substitute these words with words that do not create a binding obligation that exceeds what is required at law. In instances where these words are incorporated into the contract there may be no coverage for insurance claims.
In many cases, the word “ensure” can be replaced by “use reasonable efforts,” “will assist in,” “confirm,” “will endeavour to,” or “require.” In other cases, these words can be eliminated by rewording the requirement using active rather than passive voice. For example, replace “Ensure the meeting minutes are recorded” with “Record the meeting minutes.” Often, rewording in active voice helps clarify if the action is being required of the appropriate party.
Professionals (architects, doctors, lawyers, etc.) do not ensure their services, but perform them to meet or exceed the standard of care of their profession.