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;
• contravene either piece of legislation; or
• unreasonably increase their obligations beyond those at law.

The following, which does not constitute legal advice, is the final instalment in a series of 15 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

• 2.15.Additional Miscellaneous language/requirements that gives rise to concern

Where there is little understanding of the role of the architect or for the purpose of transferring additional responsibility and/or liability to the architect the architect’s various roles or tasks may be described differently.

Examples

Example Clause:

Use of the words: “inspect”, “supervise”, “recommend”, “obtain”, “secure”, “direct”, “approve”

Implications:

The use of these words may serve to increase the standard of care or otherwise expose the architect to inappropriate liability. Inspection is a higher standard than review. Architects do not supervise the construction work. With all the complexities of Contract A/Contract B, architects should not recommend to whom to award the contract. To do so implies a legal determination of substantial compliance. Such determination should be left to a lawyer.

Architects can “assist in” or “submit for”, but cannot “obtain” or “secure approvals”. The issuance of an approval is at the discretion of the authority having jurisdiction over which the architect has no control. Architects do not direct the work on site. There are many things which architects do not approve, but rather review, such as shop drawings. In general, independent testing and inspection companies inspect, contractors supervise, and architects review.

Example Clause:

Use of the words: “contractor”, “proponent”, “respondent”, “prime consultant”, “goods/services”, “provider” and “vendor”, “this trade” in relation to the architect

Implications:

The use of these terms may indicate that the RFP and the contract were not written specifically for the provision of architectural services, but are generic procurement documents. The inconsistent use of these terms indicates a poorly edited document cobbled together from a variety of sources. In either case, beware of provisions suitable for the purchase of construction services, or commodity items such as paper towels, but inappropriate for the provision of professional services. Beware of inconsistencies, incompatibilities and contradictions in the terms and conditions and near duplicate clauses in different parts of the documents.