Architects who are Certificate of Practice holders typically fulfil the role of the prime or lead consultant, in addition to that of architectural services provider, on all sizes of project and under all types of project delivery. It remains rare in most areas of practice for the holder to be either a subconsultant or a consultant providing just architectural services, rather than the prime consultant. Holders acting as both architectural service provider and prime consultant is so common that clients, other consultants, and even holders themselves have difficulty separating the tasks typically done by holders as architectural service providers from those done as prime consultants.

This article is not definitive or authoritative. It is an initial response to an increase in the number of projects where holders are not the prime consultant.

The concerns examined in this article generally do not apply where one architectural practice is a subconsultant to another practice.

Situation

1. Since the overwhelming number of projects have a holder as prime, other professionals rarely have an opportunity to gain experience as prime consultant. For projects where a holder is not the prime consultant, the prime is usually an engineering firm. This may occur when the scope of the project is primarily engineering. The holder may be asked to provide a building envelope around new or updated electrical or mechanical equipment or may simply be involved in upgrading existing aspects of a building (e.g. design excellence, interior design, accessibility design, or building code compliance) that accompany the engineering changes.
   
   
2. In any professional services contract, it is important to clearly define the scope of work to be undertaken. When a holder is a subconsultant or simply an architectural services consultant, it is especially important to clearly define not only the scope of work to be undertaken, but also the scope of work that is being excluded from the contract. This is where all the scope of work items relating to the role of the prime consultant should be explicitly listed as not being part of the holder’s scope of work.
   
   
3. If there is a dispute over the scope of work, and the contract for architectural services is silent, the courts are likely to rely on what would be a reasonable expectation on the part of the client. Where there is confusion or a lack of distinction, between the roles of the prime consultant and that of the architectural service provider, the courts are likely to ascribe the role to the architectural service provider; who may then find themselves responsible for the performance of tasks that were not in their fee proposal. Even if such a dispute does not go to court, it is likely to strain the relationship between the parties to the subcontract, and potentially with the client. It is important to manage the expectations of all involved.

Distinction Between Roles of Prime and Architectural Consultants

This is intended to bring some clarification of the differences between the roles of the prime consultant and the architectural service provider. The items below are organized in the order you would find them while reading through the OAA 600-2021 A contract; with additional items not covered by the contract inserted as and where appropriate.

The points below can help structure conversations with the design team, ultimately helping manage expectations around roles and professional obligations, whether you act as the prime consultant or not. While OAA 600 was referenced in developing this article, the scopes of work and concerns identified should be addressed regardless of the form of contract to be used.

Typical items to consider with respect to the role of the holder as Prime Consultant:

• Include the Consultant Coordination of all Consultants engaged by the holder, and those other Consultants engaged by the Client, that are listed in Article A11.2 of OAA 600-2021 A;
• Remember that providing Consultant Coordination, as stated in OAA 600-2021 A, means:

(i)   managing the communications among the Architect and all Consultants listed in Article A11, and with the Client;

(ii) providing direction as necessary to give effect to all design decisions;

(iii) reviewing the services of all Consultants listed in Article A11.1 to assist in identifying conflicts or interferences, and to monitor general compliance with directions

(iv) reviewing the instruments of service and other information provided to the Architect by the Client’s Consultants listed in Article A11.2 to assist in identifying conflicts or interferences, and to monitor general compliance with directions;

• Be the point of contact between the design team and the Client;
• Advise the Client during the design phase and construction contract bidding;
• After obtaining permission, act as the Client’s authorized agent in relation to authorities having jurisdiction;
• Forward all decisions and instructions from the Client to the contractor;
• Advise the Client, in accordance with the Role of the Consultant, in the construction contract;
• Convey instructions/requests from the Client to the Consultants;
• Determine which Consultants to invite to which meetings;
• Record and distribute minutes of meetings;
• Issue a covering document for change documents prepared by the other consultants;
• Compile specification sections and seal pages from all Consultants;
• Provide a project title block to all Consultants;
• Determine which Consultants to invite to field reviews;
• Act as the payment certifier for the construction contract; and
• Manage the post-construction services (e.g. review of close-out documents, record drawings, and warranty period field review) of all consultants.

Typical items to consider with respect to the role of the holder as architectural services consultant:

• Remember the consultant shall coordinate all aspects of its design for the architectural services contract with the services and designs of the Prime Consultant and the services of Other Consultants, and coordinate the work (this does not negate the Prime Consultant’s overall responsibility for coordination)
  or
  The Subconsultant shall coordinate all aspects of its design for the Subcontract Services with the Services and designs of the Prime Consultant and the services of Other Subconsultants, and coordinate the work (this does not negate the Prime Consultant’s overall responsibility for coordination);
• Confirm the Prime Consultant has been engaged to do coordination, and that it is not implicitly being expected of you (Consultant Coordination is not defined in OAA 900-2021, but relies on the definition in the prime contract);
• Copy the Prime Consultant on communications with others on the design team, unless otherwise permitted;
• Communicate with the Client through the Prime Consultant, unless otherwise permitted;
• Communicate with the contractor through the Prime Consultant;
• Receive instructions/ requests from the Client through the Prime Consultant, not from the Client directly (refer any direct Client requests to the Prime Consultant to manage and coordinate);
• Take notes at meetings for the holder’s internal use—they can be used to confirm if the official minutes accurately reflect what took place or in cases when minutes are not issued by the Prime Consultant or contractor;
• Provide architectural change documents to the Prime Consultant for compilation and issuance;
• Be aware of the meetings (including site meetings, project specific field review, and stakeholder meetings) taking place—request to be invited to the appropriate ones, and to not be invited to meetings that are not relevant to your scope of work;
• Provide architectural specification sections and participate in the seals page prepared by the Prime Consultant;
• Use the project title block provided by the Prime Consultant;
• Coordinate timing of site reviews with the Prime Consultant;
• Request updated project schedules as they are revised; and
• Request copies of document sets issued to the Client or authorities having jurisdiction for record purposes.

Conclusion

Problems arise when the expectations of the parties to the contract are not the same, and the differences are unspoken. Many of the steps outlined in this article are about making the expectations explicit so that any differences can be reviewed and resolved in the wording of the contract.

Regardless of your expectations regarding the scope of services, you are committing to providing the services explicitly stated in the contract, and—as courts have found—some services the client may reasonably expect, if they are not explicitly excluded. Ultimately, all services provided must meet the standard of care.

It really is a case of an ounce of prevention being worth a pound of cure.

References

Information for this article was taken from OAA 600-2021 and OAA 900-2021 (contract, guide and appendices). More about this topic may be found in:

Practice Tip PT.15 Consulting Contracts, Managing Changes, Scope Creep

Regulatory Notice RN.01 OAA Professional Seal – Application (Usage)

Pro-Demnity Bulletin “You Have Insurance… But What About The Engineering Consultants?” April 1, 2015