Client-Favorable Contracts
An institution contemplating the construction of a new facility may be surprised to learn that the client is often the least protected of all the parties in many of the so-called standard contracts (such as those written by the American Institute of Architects) for architectural services and construction. A strong contract for the client will clarify for all the parties exactly what the rights, obligations, and expectations are for the client, architect, and contractor. A strong contract will serve as a useful tool to prevent disputes later, and as a method of resolving those disputes when they arise. Although clients are often inclined to begin a business relationship on a friendly basis by avoiding confrontation, a robust negotiation of contract terms at the outset, led by an expert consultant or an attorney, will yield many benefits in keeping the project on track.
Contracting with Architects
After developing a detailed facility program (see Message-Based Programming) and selecting an architect (see Selecting an Architect), the client will usually be ready to enter into a contract for the design of the facility. The architect will want to limit liability for errors and omissions, to avoid being tied to strict definitions of performance and time, and to have an unfettered right to payment. Most complaints from clients about their contracts with architects involve misunderstandings about deliverables, the right of the architect to fees for additional services, use of the drawings, and project cost overruns.
A prudent client will be aware of a variety of issues not covered in the industry standard contract with architects:
- the responsibilities and rights of all of the parties involved
- the protective role that budgeting and periodic estimating can play
- ways to minimize unanticipated costs from unrequested services
- conditions that should be placed on required payments to the architect
- the need to assure the ability to use the work they have paid for, and not be obligated for additional payments, if the contract is terminated
- the value of requiring professional malpractice insurance
Contracting with Construction Managers
and General Contractors
In negotiating a good contract with general contractors and construction managers, it is essential to understand such issues as:
- What does substantially complete mean? Is it enough to call it beneficial occupancy?
- How can the client protect itself against the filing of mechanics liens?
- Where does the architects responsibility for design end and the contractors responsibility for a finished product begin?
- How can you keep the contractor on schedule?
- Does the client have the right to address offensive or harassing behavior by construction workers?
- When is the contractor entitled to submit a claim for extra money or time?
- In a guaranteed maximum price contract, what costs can the contractor charge to the client and which costs must the contractor absorb as part of its overhead?
- In a guaranteed maximum price contract, under what terms should the contractor be allowed to perform portions of the work itself?
Project Management
A successful project will recognize the crucial and distinct responsibilities of client, architect and contractor. While a design-build approach (putting the contractor in control) can work for projects in which qualitative decisons are unimportant (a warehouse), it hands over decisions that should be made by client and architect to the party whose only concerns are solidity and cost. Similarly, if the client hires an architect before determining precisely the qualitative and quantitative characteristices of what is to be built (including budget), the results are likely to be less than fully satisfactory, and substantially more costly. Once design and construction are under way, there remains a major oversight role for the client at both staff and governing board levels.
Cost Control
Construction costs can be as little as half of total project costs. The costs of facilities can be shaped most effectively at the earliest stages of planning ideally, at the strategic planning level, when the setting of goals may suggest non-facility solutions. By the time an architect is hired, the course is set, and there is relatively little room for maneuver. At this point cost cutting becomes a process of giving up pieces rather than envisioning possibilities, and the result is reduced cost-effectiveness. While construction managers handle large sums, they have even less opportunity to affect the full project budget. As part of a responsible project relationship, a client-favorable contract can provide extraordinary assurance of keeping both architect and contractor on budget.
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