| Author |
Message |
Anonymous
| | Posted on Friday, August 29, 2003 - 02:40 pm: |    |
Comments, please, regarding authority and duty of architect under AIA contract [please cite documents and articles if possible] regarding large/costly residential project; numerous changes adding wings, courtyards, etc.; owner and architect in gahoots will not "recognize" change orders; work proceeds; builders threatens to stop because of non-payment for changes; owner responds that is a good reason to fire builder; job complete and occupied with a Certificate of Occupancy; Substantial Completion never declared by architect. Builder now suing owner and architect. |
John Regener, AIA, CCS, CCCA, CSI, SCIP
Senior Member
Username: John_regener
Post Number: 102
Registered: 04-2002
| | Posted on Friday, August 29, 2003 - 04:00 pm: | |
Sounds like a typical multi-unit residential project entering the final phase: Litigation.
See CSI Manual of Practice, Contract Administration module for guide to how construction administration, under typical AIA contract documents, should work. It is possible to do these sorts of projects without such problems; I've done them. But because of the high risk associated with residential construction now, I refuse to be involved in any way. |
Jo Drummond
Senior Member
Username: Jo_drummond
Post Number: 70
Registered: 03-2002
| | Posted on Sunday, August 31, 2003 - 02:18 pm: | |
A book could be written around that, as an example of everything not to do. It would take hours which I don't have, to get all the AIA et. al. references, but a few comments:
Contractor should not have proceeded with changes without written authorization. If a drawing, an RFI response or verbal directions were given, and the contractor feels compliance entails extra cost, he is obligated to notify the architect and owner in writing, accompanied by a cost breakdown, with a request for change order. He should not proceed with the work until he has a signed change order in hand. If he does so, he is at risk of not getting paid. (If he is using the rationale of not wanting to delay the job, he is still at risk, and his c.o.r. should state the number of days added, a)because of the change, and b) if the work is delayed while they are haggling about the change.)
If he has done the work, and can convince a court or board of arbitration that he is entitled to payment for it, he might win, probably based on the law of unjust enrichment, but he wouldn't win on contract compliance, at least if AIA documents were used.
Where was the architect in letting things get out of hand this far.
Who filed the C of O?
The architect's best course, it would seem to me is not to file a notice of substantial completion until he is paid and has a hold harmless, prepared by a good attorney, in his possession. I worked for a small, design oriented architect one time, who was pretty casual about these things, and the owner wasn't paying him. The owner conned the architect into signing the notice of substantial completion "so he could move in", and that was the last nickel of fee we ever saw from the owner.
Good luck with it. Occurrences like this are why I stopped doing C.A., after years at it, and years of teaching it. |
DennisHall (Unregistered Guest)
Unregistered guest
| | Posted on Monday, September 01, 2003 - 08:43 am: | |
No book or set of rules can keep bad or stupid people from doing bad and stupid things. |
(Unregistered Guest)
Unregistered guest
| | Posted on Tuesday, September 02, 2003 - 08:59 am: | |
Additionally, for the builder to NOT proceed with changes (because he does not have a signed change order) IS NOT GROUNDS FOR TERMINATION BY THE OWNER. As such, the builder may be entitled to sue for breach of contract, for which the builder could seek damages, attorney's fees, etc.
So, a "whats-wrong-with-this-picture" recap:
Builder should not have proceeded with work without written authorization. Owner can not use threat of termination to coerce exta work out of the builder. Architect is contractually required to be impartial regarding matters involving claims and disputes. If Owner and architect did not want extra work performed (as evidenced or implied by non-payment), they should have said so. Since they didn't, the old "lack-of-objection-is-considered-acceptance" rule kicks in. The Owner clearly benefited from the extra work, knew it was going on, and did nothing to stop it. Therefore, they owe the builder for the costs associated therewith.
Good Luck! |
Lynn Javoroski
Senior Member
Username: Lynn_javoroski
Post Number: 30
Registered: 07-2002
| | Posted on Tuesday, September 02, 2003 - 11:48 am: | |
As a codicil to Dennis' "bad and stupid" comment, remember that nothing is foolproof to a sufficiently talented fool. |
Lynn Javoroski
Senior Member
Username: Lynn_javoroski
Post Number: 31
Registered: 07-2002
| | Posted on Tuesday, September 02, 2003 - 12:15 pm: | |
Re: Article 7, AIA A201
1. Who originated the Change Orders?
2. Who signed them?
3. If the Owner and the Architect were in cahoots, was it Construction Change Directives that were issued?
4. If so, why did the Contractor proceed with the work without some sort of attempt at adjustment?
5. Re: Article 9.8 and 9.9: Who issued the Certificate of Occupancy without a Substantial Completion document?
6. Where does the insurance company weigh in on all this?
7. Where's the paper trail?
Sounds like a whole host of folks weren't playing by the rules. |
Anonymous
| | Posted on Tuesday, September 02, 2003 - 01:40 pm: | |
Lynn-- we get "asked" in very strange situations!
1. There apparently are no Change Orders.
2. N/A
3. No evidence of CCDs, just refusal of both parties to even recognize that Change Order situations existed and should be documented; Architect "rolled over" at Owenr's behest.
4. Have no answer to this question as yet; was threatened with termination at some point.
5. C of O issued by building code agency.
6. Not sure as yet.
7. We'll find out shortly.
Well at least 2 were not and not sure how the third was acting [or why] |
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