American Bar Association
Forum on the Construction Industry
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WHO’S STEERING THE SHIP?:
Construction Administration by Design
Professionals and Agency Construction Managers
(“The Roles of the Design Professional and Construction Manager in
Construction Administration”)
Calfee, Halter & Griswold, LLP
Karl F. Oles
Stoel Rives, LLP
October 25 & 26, 2007
Hyatt Regency Newport Hotel & Spa –
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© 2007 American Bar Association
One key decision in managing the risk of a construction project is choosing someone to represent the owner’s interests during construction. This paper focuses on the options of using a design professional (usually an architect) or using an “agency” construction manager to provide construction administration services.[i] Part One defines terms and explains the services normally provided by architects and “agency” construction managers during the construction phase. Part Two discusses legal issues that can arise from the use of architects and “agency” construction managers. Part Three applies the lessons of Parts One and Two, showing how architects and “agency” construction managers can contribute to—and help resolve—problems when a “perfect storm” strikes a project.
Two attachments follow Part Three. Attachment One is a form of “agency” construction manager agreement that covers a broad spectrum of contracting issues. Attachment Two is a checklist of issues to consider when deciding how to use architects and “agency” construction managers during the construction phase.
Owners have options other than using architects or “agency” construction managers for construction administration. The owner can choose to administer the construction contract entirely with its own forces, retain a general contractor or an “at risk” construction manager, or choose a project delivery system other than design-bid-build. These and other options are outside the scope of this paper. For further information about architects and construction managers, the reader is invited to consult Design Professional and Construction Manager Law, a 2007 publication of the ABA Forum on the Construction Industry.
Note that, for simplicity, this paper sometimes refers to owners, architects, contractors, and construction managers as individuals.
CONSTRUCTION
PHASE RESPONSIBILITIES
A. USING ARCHITECTS AND CONSTRUCTION
MANAGERS DURING THE CONSTRUCTION PHASE
In its simplest form, the traditional “design-bid-build” project delivery system involves three participants: the project owner, the architect, and the general contractor. Sometimes the owner acts as the general contractor, entering into direct contractual relations with the trade contractors. The owner, architect, and contractor all have important roles to play, and all must coordinate their activities to achieve success. Because the owner has direct contractual relations with the architect and contractor (who have no such relations between themselves), the owner typically plays a pivotal role in coordinating the construction phase activities. But coordination on a major project is a complex process, requiring considerable time and expertise, so most owners choose to retain skilled assistance.
1. Design Professional. One common option is for the owner to retain the design professional (usually an architect) who led the project design team to perform certain services during the construction phase. The designer brings the benefit of professional training and experience along with specific familiarity with the owner’s requirements and the project design.
Although the scope of a design professional’s services during construction may vary from project to project, a fairly well understood “normal” range of activities is reflected in standard form agreements, such as those published by the American Institute of Architects (AIA) and the Engineers Joint Contract Documents Committee (the EJCDC is a joint venture of the Associated General Contractors of America and various professional engineering groups).[ii] A broad consensus exists about the standards applicable to “normal” services performed by architects and other design professionals. This consensus is based on a long history of academic degree programs, state licensure requirements, and professional organizations like the AIA (founded in 1857) and the American Society of Civil Engineers (founded in 1852). Also, a considerable body of published case law and legal writing describes and discusses standards of practice for design professionals.
Owners, however, often view the “normal” services as insufficient to fully serve the owners’ interests during the construction phase. Some design professionals respond by offering to provide “extended” services of a “project representative,” sometimes referred to as a “clerk-of-the-works,” to provide additional on‑site services.[iii] Other design professionals will provide additional services or even serve as a construction manager by means of an amendment to the original owner-designer agreement.[iv] A significant number of design professionals, however, object that they are not trained or experienced in such services or that those services are not covered by professional liability (errors and omissions) insurance.
2. Construction Manager. Another option is for the owner to retain a construction manager to perform some or all of the administration services during the construction phase. This option is particularly appropriate in cases in which there is no general contractor and the owner must directly coordinate the work of the trade contractors. A construction manager is a person with experience in construction projects (often as a contractor) who may provide value engineering or constructability analysis during the programming and design phase, and assist the owner with contractor selection, as well as perform administration services during the construction phase. The duties of a construction manager vary from project to project, but generally include clerk-of-the-works duties (facilitating record keeping and paper flow), construction inspection, coordination and surveillance, review of the contractor’s cost and schedule submissions, risk assessment relating to actual and potential problems, and advice to the owner in case of contractor claims. A construction manager distinguishes itself from a clerk-of-the-works by direct responsibility for and involvement in managing the contractor and the project.[v]
Construction management is a relatively new specialty without a long tradition of academic degree programs. Few states currently require specific licensure for construction managers. Professional construction management organizations are of relatively recent origin. (The Construction Management Association of America, which has created a Code of Professional Ethics of the Construction Manager, was founded in 1982.) Little case law exists relating to the standards of practice applicable to construction managers. As a result, successful definition of the construction manager’s scope of work, the standards to be met, and the interaction between the construction manager and the design team and contractor relies heavily on properly drafted contracts.[vi]
Construction managers are divided into two types: (1) “agency” construction managers and (2) “at risk” construction managers. The distinguishing feature is whether the construction manager bears the risk of nonperformance by the contractor(s). If the owner holds the construction contract and the construction manager is retained solely to provide advice and other services, the construction manager is of the “agency” type. If the construction manager holds the construction contract and is responsible for the contractor’s proper performance, the construction manager is described as being “at risk.” This paper focuses on “agency” construction managers.
3. Deciding Whether to Retain a Construction Manager. Even on simple projects, the owner normally retains the architect for some construction phase services, including response to design issues. On more complex projects, particularly if multiple prime contractors are involved, the owner may choose to expand the role of the architect or retain an “agency” construction manager to supplement the architect’s services. Because the scope of services provided by architects and construction managers varies from project to project, and because those services can overlap, the owner’s choice should be made in light of the specific circumstances of each project and the specific expertise of the available personnel. For clarity, this paper will employ a distinction between the “normal” scope of architect services and the “normal” scope of “agency” construction management services.
In general, “normal” architect services during the construction phase are focused on the design. The architect reviews and responds to the contractor’s submittals, which document the conformity of materials and equipment to the design, and to requests for information, which seek to clarify or correct the design. The architect also has a role in writing change orders to describe changes in the scope of the work and in negotiating or determining equitable adjustments to the contractor’s schedule and compensation as a consequence of such changes. The architect visits the project site from time to time, but for limited purposes, such as to assess work progress in connection with the contractor’s monthly invoices and to certify substantial and final completion. The architect is not expected to review the construction in detail, but rather to determine whether or not the work conforms generally to the design. The 1997 AIA contract forms also gave the architect authority to decide certain disputes between contractor and owner, but owners frequently deleted this provision, and the 2007 edition permits the owner and contractor to select someone other than the architect as an “Initial Decision Maker.”
By contrast, a construction manager’s “normal” services include a daily jobsite presence, sometimes with a full-time staff, for the purpose of monitoring the work status and schedule; inspecting the work for defects; ensuring that the contractor, designer, and owner properly coordinate their activities; detecting and responding to risks affecting the work; and helping the owner respond to contractor claims. Construction managers are generally not given authority to interpret the design documents; their role normally is to expedite responses from the design professionals if such questions arise. A construction manager may supplement or even supplant the architect’s role in drafting and negotiating change orders and responding to pay requests.
Perceived advantages of retaining a construction manager include: (1) the construction manager has construction expertise that most architects and owners do not possess in terms of scheduling, means and methods of construction, contractor relations, and current market conditions for skilled labor and scarce materials; (2) retaining a construction manager frees the architect to concentrate on design-related issues; and (3) the construction manager can give the owner an objective opinion when a contractor makes a claim of design defect or delay due to a lack of timeliness by the designer. One obvious disadvantage of retaining a construction manager is that it adds a substantial cost to the project, though this disadvantage may be mitigated by eliminating the general contractor and its markup and by reducing the architect’s construction phase fees. Additionally, the disadvantage should be mitigated because the project should be built more efficiently.
To be fair, it should also be recognized that a construction manager’s opinion may not be completely objective when a contractor claims an adverse impact from the construction manager’s untimeliness or lack of performance. Additionally, if the construction manager does not perform the basic clerical functions of collecting and transmitting paper work, it may actually impede progress on the project instead of facilitating it.
The question in most cases is whether retaining a construction manager will provide benefits that outweigh the added fees. Although this question must be resolved on a project-by-project basis, it may be stated as a general rule that construction managers are more cost effective on large, complex projects and in cases in which the owner lacks construction expertise. Attachment Two at the end of this paper is a checklist of issues to be considered when deciding whether to retain the services of a construction manager for construction administration.
The role of an “agency” construction manager during construction administration must be carefully understood by both the owner and the construction manager if it is to be successful. In particular, a clear dividing line must be drawn between the construction manager’s duties as the owner’s eyes and ears (collecting and reporting information to inform owner decisions) and its authority as the owner’s representative (deciding day-to-day issues to resolve or head off claims). Clarity about this issue will mitigate unwarranted claims based on misperceptions about the construction manager’s ability to bind the owner.
The owner must not abdicate its role in the construction process. The construction manager should not expect to be able to take unilateral action on significant issues, but should act as an adviser, making recommendations to the owner. Above all, the construction manager must maintain a relationship of respect and confidence with all project participants. As a result, an important aspect of the role is to assure a sufficient level of meaningful communication between the owner, the architect, and the contractor so that timely decisions can be made. Similarly, the “agency” construction manager’s relations with the contractor are based on an ability to negotiate with the contractor and to obtain cooperation from the contractor. An “agency” construction manager will have limited success in attempting to coerce the contractor, as the contractor’s reaction will often be either to ignore threats and “end-run” the construction manager by directly communicating with the owner, or to escalate the issues into formal claims with which the owner will become involved.
4. One Firm as Both Design Professional and Construction Manager. Theoretically, an owner could engage a single design professional or construction management firm to fill the roles of both design professional and construction manager during construction administration. As a practical matter, attempts to accomplish this usually manifest themselves as construction management provided by the design professional or by a consultant of the design professional.[vii]
The chief advantage claimed for such an arrangement over using separate firms is that it provides the owner with a single point of responsibility. Legally, this is correct, as the design professional is ultimately responsible for both roles. In practice, the arrangement may not be seamless, particularly when the design professional engages a consultant to fill the role of construction manager. Additionally, this arrangement does not provide a single point of responsibility for the actual construction, because that work is performed by one or more contractors. Most important, a single point of responsibility can work to the detriment of the owner. When a separate design professional and construction manager are engaged, the owner benefits from each serving as a check and balance on the other and from their diversity of backgrounds and experience. Thus the owner will more likely obtain objective advice and recommendations. When the construction manager is contractually obligated to the design professional, disagreement or constructive criticism is less likely.
B. SPECIFIC
CONSTRUCTION PHASE ISSUES
The following sections summarize some common construction phase issues and contrast the roles that architects and construction managers normally play with respect to them.
1. Schedule. Nearly every major construction project involves the performance of numerous tasks by various contractors, subcontractors, and suppliers, along with tasks performed by the owner itself. Some tasks must be completed before others can begin, and some tasks require long lead times for ordering and delivering materials and equipment. The most important tool for analyzing and tracking project tasks is the project schedule. From the owner’s perspective, the project schedule must be created, updated, and enforced.
The architect’s role in creating and updating the schedule is normally limited to reviewing the original schedule and any updated schedules prepared and submitted by the contractor, and providing comments to the owner. On a relatively simple project, or when the owner has expertise to analyze schedule information, the architect’s limited review and advice may be sufficient. In other cases, particularly when there is no general contractor, a construction manager can be a valuable addition to the owner’s team.
A construction manager normally takes an active role in the creation and review of the project schedule. If the construction manager is involved in the design phase, which is common, it usually creates at least an outline schedule before the contractor is chosen. If there is no general contractor, the construction manager takes the lead in outlining and developing the project schedule for the use of the trade contractors. This is an appropriate use of the construction manager’s expertise, though finalization of the schedule should include significant input from the contractor. After all, it is the contractor who will actually perform the work.
For example, some construction managers will attempt to dictate the project schedule to the contractor. The difficulty with such an approach is that it often fails to achieve buy‑in from the contractor. As a result, when delays arise, so do complaints that the schedule was unrealistic from the outset. In contrast, although more difficult to create, a project schedule arrived at with significant input from the contractor is likely to be more realistic. When delays occur, resolving them by adjusting the schedule may be less adversarial if everyone involved feels some responsibility for having created the schedule in the first place.
Typically, the contract documents will require that the construction manager and the contractor create a project schedule in a relatively short period, sometimes as little as 30 days. In some circumstances, the process will commence with each contractor submitting its schedule for incorporation by the construction manager into an overall project schedule. The contractor will then have an opportunity to seek revisions to the overall schedule. In other cases, the construction manager will produce a preliminary project schedule and provide it to the contractor, who will respond with revisions. In yet other cases, particularly in the public sector, the owner will include an initial schedule for the first 30 to 90 days of the project in the bidding or contract documents. The construction manager and the contractor will then follow that initial schedule until they produce a project schedule. However the process is initiated, hammering out a final project schedule often requires a meeting that the construction manager should call and chair. To be effective in this role, the construction manager must be thoroughly familiar with the owner’s requirements, particularly milestone and completion dates. The owner can assist this process by providing as much flexibility as possible. Artificial or unrealistic dates rarely serve the owner well in the long run.
Even if there is a general contractor, the construction manager normally takes an active role in monitoring and updating the schedule. Updating is normal. The original schedule is usually to some extent an outline, with details to be filled in as the job progresses. For example, the original schedule may include an activity for “drywall level 5.” Later, the contractor may refine the schedule by adding more detailed activities (e.g., “stock drywall,” “install drywall,” and “tape” in various subsectors of level 5). The number of activities on the schedule naturally increases over time. In addition, the schedule must adapt to unexpected circumstances and changes to the scope of work. For example, inclement weather may prevent drywall installation in one sector, or the owner may change wall types.
Of course, if there is no general contractor, the construction manager will take the lead in updating the schedule, in consultation with the trade contractors. The construction manager must assure that trade contractors timely deliver schedule updates as required by the contract documents. It will be difficult, if not impossible, for the construction manager to sensibly revise the overall project schedule without timely information from the trade contractors.
Finally, the contractor may be required to certify that each schedule update submitted is reasonable and will be used as the basis of the contractor’s work. Obtaining such a certification, often by means of the contractor’s signature on the update, is the responsibility of the construction manager and can narrow disputes about delays. The contractor must be required to raise any issues about the impact of an update on a timely basis so that the owner can consider measures to mitigate the impact. One means to accomplish this is to provide that the contractor’s signature on an update waives any claims for time extension or additional compensation related to the update. If a contractor is unwilling to sign an update because of a legitimate concern, the construction manager should then assist the owner to address it.
The construction manager should work with the contractor to ensure that the project schedule remains a realistic and useful document. Just as with the original project schedule, adjusting the schedule may be less adversarial if everyone involved feels some responsibility for having updated it. Often the contract documents require that the contractor provide a schedule update for work accomplished in the past week and a “look ahead” estimate of work to be accomplished in the next two weeks at weekly progress meetings. By analyzing this information, comparing it to the existing project schedule, and incorporating it into revisions, the construction manager can keep the owner informed about whether the project is proceeding as anticipated, whether “float” (the amount of time an activity may take without adversely affecting the critical path) is being consumed without work being accomplished, and whether the owner itself is performing in a timely manner.
If a critical delay is anticipated or actually occurs, the construction manager should coordinate with the contractor by suggesting or creating a recovery schedule. Contract language requiring that float be treated as an asset of the project that may be used by agreement of the owner and contractor can facilitate the development of a recovery schedule that protects the interests of all parties. Such a requirement may force a contractor who is responsible for a delay early in the project to implement realistic means to get back on schedule instead of simply ignoring the problem and relying on float. The construction manager must understand the availability of float and of other means to correct for a delay, such as overtime, and advise the owner of the appropriateness of each option. In addition, contract provisions that require a contractor who refuses or fails to agree to a recovery schedule to create one that protects the interests of the owner and any other contractors, can assist the construction manager in motivating a recalcitrant contractor.
The construction manager should be required to keep a daily log showing work accomplished, deliveries made, equipment on‑site, and the presence of appropriate types of labor and numbers of the work force. The owner may need this information later on to analyze and resolve delay claims.
To support the construction manager’s efforts to create, update, and enforce the schedule, the contract documents should provide that no payment will be made to any contractor without an initial or updated project schedule, as applicable. On multiple-contractor projects, such a provision may create peer pressure that the construction manager can use to motivate an intransigent contractor. In addition, the contract documents may provide the owner with discretion to back charge, suspend, or terminate a contractor who fails to comply with the requirement to produce or update the project schedule. The construction manager can provide valuable insight into causes and effects of these alternatives and should submit a recommendation about which is appropriate.
2. Safety. Jobsite safety is critical, not only to prevent injury and death to workers and passersby, but also to avoid costly delays from governmental safety shutdowns to address perceived risks. Industrial safety requirements are subject to federal, state, and local regulation and may be affected by terms in building permits.
The architect normally resists any role in the formulation and monitoring of safety procedures. The AIA forms include disclaimers about the architect’s involvement in safety in connection with a general disclaimer about the contractor’s “means and methods.” The architect has no special expertise with respect to workplace safety and naturally wishes to avoid the potentially significant liability that can arise if a worker is injured or killed because of improper safety precautions or procedures, but the disclaimers are not always effective.[viii]
Although construction manager contracts usually disclaim control over safety (and generally over the contractor’s means and methods), in practice it is common for construction managers to get involved with safety issues. Because construction managers have a full-time presence at the project site, they attend contractor safety meetings and are expected to notify the owner of potential project risks, including safety risks. Construction managers also may help owners develop project safety guidelines to which contractors are required to conform.
As a consequence, and despite exculpatory language denying liability for safety, construction managers frequently help coordinate the safety programs of the contractor and subcontractors to reduce inconsistencies, duplications, and omissions among the programs, or to require all persons working at the project site to adhere to an owner safety program. If an emergency arises threatening life or health, the construction manager’s role normally will be to coordinate the owner’s response with the responses of other project participants.
In some instances, the construction manager may provide security for the project site, either directly or by engaging a security firm. Such an arrangement may include additional safety responsibilities, such as facilitating calls to police, fire, or emergency response departments.
3. Changes and Claims. Nearly every construction project involves unexpected conditions, owner changes, and force majeure or other circumstances that give rise to claims by the contractor for adjustments to the schedule or the contract price. When such circumstances arise, the owner needs information right away to understand the situation and to mitigate any problems. To assure that timely information is received, the owner needs someone to see that contractually required procedures for providing information are followed, and that sensible responses are made. In the longer term, the owner probably will also need assistance to analyze and respond to the contractor’s claim for adjustment of the contract terms. When multiple contractors are involved, the construction manager can also provide assurance that claims resulting from the impact of one contractor’s failure on the other contractors are properly addressed.
In general, the architect (or a subconsultant) is in the best position to advise the owner if issues arise relating to the design or the conformity of the work to the design. These issues fundamentally call for architectural judgment, and most states require that licensed professionals render them. Not surprisingly, the AIA form contracts make the architect an active participant in this area. For example, the architect participates in the request for information (RFI) process, which can include challenges to the adequacy of the design; drafts documents describing proposed changes in the scope of work; negotiates change orders; and reviews contractor submittals for conformity to the intent of the design. If a building component fails to perform as expected, or if unexpected subsurface or other physical conditions are discovered, the architect is most likely the best person to investigate and report on necessary changes to the design. Conversely, the architect is the project participant most likely to have a conflict of interest if a claim is made that the design was defective, because the design is primarily the architect’s creation.
The construction manager is not immune from the possibility of a conflict of interest, either because the design may have been altered due to constructability analysis or value engineering provided by the construction manager, or because the claim is based on an allegation relating to the performance of one of the construction manager’s responsibilities, such as coordination of the schedule. A construction manager may, nonetheless, provide valuable assistance in the change and claims processes.
Contract clauses relating to concealed physical conditions, change orders, and claims often have separate procedural requirements. In many cases, the construction manager can assure the owner that the clauses are not being breached or ignored by the contractor and that the owner is not itself breaching the contract by an untimely or insufficient response.
Clauses relating to concealed physical conditions often require that the contractor who encounters them provide notice and then not disturb the conditions until they are inspected. Because construction managers are regularly on‑site, time is saved by having the construction manager receive the notice and disseminate it to the architect and the owner. Depending on the nature of the condition and its effect on the design, the construction manager can either perform the inspection or notify the architect of the need for (and then schedule) the inspection to minimize any related delay. In any event, the construction manager should document the conditions and the contractor’s efforts to preserve them. In fact, the construction manager is in a good position to investigate and document many circumstances that may lead to contractor claims, particularly in cases not directly affecting the design, such as adverse weather, strikes, owner-requested schedule changes, and trade contractor conflicts.
The construction manager also may be given authority to review and negotiate change orders, although the preparation of documents evidencing any changes to the design usually remain the responsibility of the architect. Using its familiarity with the project and the labor and materials markets, the construction manager should assure that contractor proposals for adjustments to the contract price and time comport with market realities and any limitations on recovery imposed by the contract documents. Similarly, if the contract documents permit the owner to require that work be done without a change order and to establish a price for the work, the construction manager should assist the owner to determine an appropriate price.
The construction manager usually is not retained to render decisions about contractor claim issues. Instead, the construction manager will provide recommendations to the owner about the validity of a claim and the owner’s appropriate response. Most commonly, the owner reserves the construction manager as its record keeper, adviser, and advocate in dispute resolution procedures that may include a structured settlement negotiation process, mediation, a disputes resolution board, arbitration, or litigation. If the contractor is required to submit notices or claim documents as a condition precedent to recovery, the construction manager is best situated to receive and analyze such submissions, calling in assistance from the design professionals as required. A construction manager will not alter the contractual allocation of the risks involved in changes any claims any more than a design professional does. The construction manager, however, should ameliorate the effect of changes and claims by efficiently and effectively processing them.
4. Project Site Management and Payment. On any construction project, it is to the owner’s advantage to keep track of what is going on, both to facilitate planning and payment and to head off potential problems. As noted above, a major distinction between the normal services provided by an architect and by a construction manager is that the former performs periodic site visits and the latter provides daily on‑site staffing.
The construction manager’s on‑site presence makes it much easier for the construction manager to call, conduct, and memorialize progress and other meetings and to maintain current paper and electronic files of correspondence, project documents, and transmission logs. The construction manager can focus discussions on the issues at hand and, depending on its experience, suggest means by which the contractor and subcontractors can stay out of each other’s way or even improve their productivity. Many modern projects require more formal coordination to assure that increasingly complex mechanical systems can fit and be readily installed in limited spaces. In addition to the usual progress meetings, a construction manager can hold “coordination meetings” in which the purpose is to plan the installation of all those important systems. The construction manager’s daily interaction with the contractor facilitates regular follow-up on open questions. The construction manager also can provide an informal claim resolution process to keep minor matters from turning into substantial disputes. Someone must resolve the day-to-day issues, such as who will have first access to a portion of a project; who will control hoists, elevators, or other equipment to be used in common; where materials will be stored; and who will be responsible for cleanup. The construction manager also will assist or coordinate project close-out activities, such as punch-list inspections, commissioning, and the turnover of operation and maintenance manuals and “as built” drawings. In general, courts hold that when an owner has elected a delivery system that does not involve a general contractor, and instead uses multiple prime contractors, the owner has additional responsibility for the coordination of the contractors. Assisting the owner to fulfill this responsibility is central to the role of a construction manager.
The construction manager also can play a significant role in the payment process, assisting or even supplanting the architect’s efforts. The construction manager can review payment requests for completeness and assess whether the amount requested is proportionate to the state of completion of the project. This is an important task because overpaying a contractor not only can create difficulties in obtaining complete performance from that contractor, but also may cause a surety to deny a claim against a performance bond. Because the construction manager is typically on the project site full time, it can often produce a better estimate of project completion than the architect, especially if the construction manager has been tracking actual costs against the project budget. As noted above, one thing that the construction manager may not be able to do as well as the architect is to determine whether the work conforms to the contract documents.
To support the construction manager’s role in the payment request process, the construction contract may provide that the construction manager has authority to withhold amounts requested or assess liquidated damages, or at least to recommend to the owner that such actions be taken.
In some states, construction managers are prohibited from performing any construction work on public projects. In other states, owners may wish to limit work performed by a construction manager to avoid the possibility that the construction manager will file a lien.[ix] In those situations, common facilities may be assigned to a single contractor or distributed among contractors on the basis of the services provided, e.g., the electrical contractor may be required to provide temporary electrical service for the entire project, or the plumbing contractor may be required to provide temporary water for the entire project. When the construction manager is not so constrained, it may make sense for the construction manager to provide some or all common facilities and services, particularly if the various contractors’ schedules are not coextensive. Most often, construction managers will provide meeting space; limited storage of contract documents, submittals, and correspondence; jobsite telephone, facsimile, and electronic mail service; and security. Depending on the owner’s preference, the construction manager also may provide sanitary and eating facilities, select testing laboratories, and manage Web-based project documentation systems.
PART TWO
SOME LEGAL CONSEQUENCES OF USING A DESIGNER
OR CONSTRUCTION MANAGER
A. DOES THE ARCHITECT
OR CONSTRUCTION MANAGER EXPOSE THE OWNER TO LIABILITY?
1. Architect or Construction Manager as Agent. To the extent the architect or construction manager are seen as the owner’s agents, their acts and omissions can be attributed to the owner, exposing the owner to liability. In the construction arena today, it is almost unheard of for either architects or construction managers to be considered the “general agents” of the owner. General agency is a product of a different age, when the world was larger and communications were slow, limited, and expensive.