Construction Law For Design Professionals Construction Managers and Contractors 1st Edition Sweet Solutions Manual

Chapter 10
Section 10.1 addresses the push-pull of a client relationship, in particular with

an unsophisticated client who may rely on the design professional for areas
outside of the designer’s expertise (or insurance coverage). How does one
negotiate setting boundaries with such a client? More than a legal question, this
is a topic for general class discussion about business management.
Chapter 10 is more like a law school textbook, in which the student is expected
to read court cases and then discuss them. Here, the Griswold case (Section
10.2C) and Watson case (Section 10.3B) act as substitutes for the chapter
scenario. Nonetheless, students (especially undergraduates) may not be
prepared for the difficulty of such an assignment.
Some of us find the key to explaining legal opinions is to diagram the parties’
relationships on a blackboard; see Figure 14.2 as an example. (Sometimes the
sheer number of named parties becomes an impediment to understanding the
facts.) Then questions can be used to tease out a deeper understanding of the
court’s decision. For example: Why did this relationship end in litigation? What
are the main issues confronting the court? What is each party’s position? How
did the court rule and why? With this last question the student encounters
(perhaps for the first time) the nature of legal reasoning: not only “what are the
rules,” but also “what are the reasons or public policies underlying these rules”?
The text following the Griswold case offers questions for students to probe.
These are designed not only to promote class discussion, but also to encourage
students to look critically at a judicial decision.
Immediately after these questions, the text refers to a case study of Frank
Lloyd Wright. “Frank Lloyd Wright and the Johnson Building: A Case Study” is
found in Appendix P on the book’s website. It is an extract from a Law Review
article describing a project that did not result in litigation. Nonetheless, we include
it for a number of reasons. We rarely get published material outside of a case
decision which helps us see the background of a transaction. It is especially
interesting when the case study involves Wright, an architect of almost mythic
dimensions and someone with whom the students often identify. But more than
that, the study shows what we always thought to be true, the not uncommon
playing down of costs only to see the costs go up after the project is built. Ask the
students whether Johnson was correct when he said Wright led them along to
get the commission.
There is much to choose from for a discussion of cost predictions. Each

instructor will make his or her own decision as to what to emphasize. However,
we recommend not to pass over 10.2E (disclaimers in AIA and EJCDC contracts)
and 10.2F (recommendations).
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The Watson case addresses the competing claims of contract disclaimer and
client expectations. The court’s message: An architect cannot close his or her
eyes to known or apparent defects, regardless of what the contract purports to
say. An architect while on the job site for one purpose (to verify a contractor’s
payment application, for example) is also there to protect the client’s interests.
The submittals process (Section 10.4) does not implicate the client-design
professional relationship, but it does discuss a key design service.
The chapter ends with ownership of the instruments of service (Section 10.6)
and copyright (Section 10.7). A basic understanding of these concepts is
desirable. The reproduced appendices from the Sturdza case invite class
discussion of originality in design work.
Answers to Chapter Questions
1.) Why should assistance in obtaining financing and economic feasibility studies not be
considered part of basic design services?
a. The professional education and training of a design professional do not
include techniques for obtaining financing for a project. Nor is it likely that
the design professional will be examined on this activity when seeking to
become registered. If the architect should hesitate before making
representations as to the availability of funds, she should certainly avoid
venturing into economic feasibility studies.
2.) What are the two models of cost predictions a design professional can use and how
do they differ?
a. The two methods are the traditional method and refined methods. The
traditional method usually involves the design professional’s using rough
rules of thumb based on projected square or cubic footage, modulated to
some degree by a skillful design professional’s sense of the types of design
choices a particular client will make. The other model is likely to be used by
sophisticated clients who are aware of the difficulties design professionals
have using the traditional method. These clients are likely to engage
someone who can more accurately predict costs as the design evolves.
3.) In the case Griswold and Rauma, Architects, Inc. v. Aesculapius Corp., what were the
four factors that were identified by the court as being relevant to a determination of
what the effect on compensation of an architect or building contractor should be
when the actual or probable cost of construction exceeds an agreed maximum cost
figure?
a. The first factor is whether the agreed maximum cost figure was expressed in
terms of an approximation or estimate rather than a guarantee. The second
factor is whether the excess of the actual or probable cost resulted from
orders by the client to change the plans. The third factor is whether the
client has waived his right to object either by accepting the architect’s
performance without objecting or by failing to make a timely objection to
that performance. The final factor is whether the architect, after receiving
excessive bids, suggested reasonable revisions in plans which would reduce
the probable cost.
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4.) What is the most common basis for waiving a cost condition?
a. The most common basis for excusing the cost condition is the client’s
making excessive changes during the design phase.
5.) What are the five choices an owner has if the lowest bona fide bid or negotiated
price exceeds the budget of the project?
a. The five options are (1) approve an increase in the fixed limit, (2) authorize
rebidding or renegotiating, (3) terminate and pay for work performed and
termination expenses if the project is abandoned, (4) cooperate in project
revision to reduce cost, and (5) implement any other mutually acceptable
alternative.
6.) What changes did the AIA make to the B101-2007 document Section 3.6.2.1, in an
attempt to create a subjective standard in terms of their duty to inspect the work?
a. The first change is that it eliminated the “endeavor to guard” language.
Second, it imposed upon the architect a duty to report to the owner only
“known deviations” from the design requirements and “defects and
deficiencies observed in the Work.”
7.) In the case of Board of Education of the Hudson School District v. Sargent, Webster,
Crenshaw & Folley, what was the primary reason the court ruled the architect
breached their contract?
a. The appellate court entered judgment for the school board, ruling that the
architect breached the contract when she did not inform the owner of a
defect known to the architect from her inspections.
8.) What is the principal purpose of a submittal?
a. The principal purpose of a submittal is to obtain a representation from the
contractor as to how it plans to execute the aspects of the design for which
submittals are required.
9.) How does the Engineers Joint Contracts Documents Committee (EJCDC) Document
E-500 (2008) address the owner’s use of documents generated by the design
professional?
a. According to Paragraph 6.03E grants the owner a “limited license” to use the
documents on the project or for related uses for the owner. Further use or
re-use must include “written verification or adaptation” by the engineer.
Paragraph 6.03F entitles the engineer to further compensation if any re-use
occurs at “rates or in an amount to be agreed upon by Owner and Engineer.”
10.) What does the Copyright Act protect, how does the design professional
protect its copyright, and what conditions will lead a design professional to believe
its copyright has been infringed?
a. The Copyright Act protects against the unauthorized copying of an author’s
work. To protect its copyright, a design professional should register the
plans and specifications with the Copyright Office. A design professional
who views a project being built with a design that is substantially similar to
the design professional’s own design – especially by a developer for whom
the design professional previously had provided the design – will lead the
design professional to believe its copyright has been infringed.
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Chapter 10

Section 10.1 addresses the push-pull of a client relationship, in particular with

There is much to choose from for a discussion of cost predictions. Each

Answers to Chapter Questions

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