By Andrew D. Mendelson, FAIA, Senior Vice President and Chief Risk Management Officer of Berkley Design Professional
August 9, 2022
The extent of a design professional’s duty to perform project evaluation through site observation should be defined in its professional services agreement (contract). Under the standard AIA Owner-Architect agreement, the frequency and intent of project evaluation is defined as follows:
AIA B101™-2017, §126.96.36.199
The Architect shall visit the site at intervals appropriate to the stage of construction, or as otherwise required in Section 4.2.3, to become generally familiar with the progress and quality of the portion of the Work completed, and to determine, in general, if the Work observed is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents.
Furthermore, these observation duties are limited: However, the Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work.
The architect has a duty to provide progress updates to the owner and report known deviations from the Contract Documents or the construction schedule, as well as defects and deficiencies observed in the Work:
On the basis of the site visits, the Architect shall keep the Owner reasonably informed about the progress and quality of the portion of the Work completed, and promptly report to the Owner (1) known deviations from the Contract Documents, (2) known deviations from the most recent construction schedule submitted by the Contractor, and (3) defects and deficiencies observed in the Work.
Use of Project Webcams
We regularly caution insureds to be careful with the number and type of project photos taken during site visits. More is not necessarily better. Progress images should be limited to the view of the construction component that is the subject of the site observation. Avoid capturing wide-angle views that may inadvertently record aspects of construction that are beyond the focus of your visit.
But what are the implications to you as a design professional if the owner or contractor places a webcam on the project site providing a 24/7 video feed of construction progress available to project team members? Can the presence of such a video feed imply expanded duties of architects and engineers for site observation?
Because of the potential risk, we advise you to specifically disclaim any expanded duty in this regard. We recommend that you add the following clause to your professional services agreement if such video technology will or may be utilized on the project. (The design professional is identified as “Architect” in this model language.)
Disclaimer of Duty to Review Supplementary Video Information
The Parties agree and understand that, during the course of the construction of the Work, the Owner, Contractor, or other Project participants may choose to, at their own expense and initiative, make use of supplemental video imagery and information sourced from devices such as project webcams, Unmanned Aerial Vehicles, including but not limited to drones, and/or other videography equipment, in order to obtain visual information and documentation regarding the state of the progress and/or quality of the Work (collectively “Supplementary Video Information”).
Notwithstanding the foregoing, the Parties expressly agree and acknowledge the following:
1. Since Supplementary Video Information encompasses only certain limited visual information and provides neither complete nor comprehensive visual information/measurements/dimensions, nor any tactile, auditory, or olfactory feedback whatsoever, such Supplementary Video Information shall not be used as a substitute for or required supplement to Architect’s Construction Phase services as defined in Section __, herein, but rather may, to the extent provided and made available to Architect in a reasonably timely, legible, and complete fashion, supplement the other data and information obtained by Architect pursuant to Architect’s Construction Phase Services as defined in Section __, herein.
2. Architect shall have no obligation to conduct a comprehensive or continuous review of any Supplementary Video Information, but rather may, at its sole discretion, choose to review such Supplementary Video Information, or any portion thereof, in connection with the performance of its Construction Phase Services on the Project.
3. Architect’s receipt of any Supplementary Video Information shall not in any way change the provisions of Sections __ and __, herein, to the effect that Architect’s observation of the Work shall be limited to becoming generally familiar with the progress and quality of the Work and to determine, in general, if the Work observed appears to be in general conformance with the Contract Documents based upon the Architect’s site visits of the Project during construction pursuant to this Agreement, and that Architect shall not be required to make continuous or exhaustive on-site inspections of any kind with respect to the quality, quantity, or progress of the Work and, under no circumstances shall Architect have any responsibility with respect to the Contractor’s construction means, methods, techniques, sequences, or procedures with respect to the Work or any portion or part thereof.
Andrew D. Mendelson, FAIA, is Senior Vice President and Chief Risk Management Officer of Berkley Design Professional, a division of Berkley Alliance Managers which is a member company of W. R. Berkley Corporation that provides professional liability insurance to design and construction professionals.
Risk management resources for design professionals can be found here. Andrew may be contacted at email@example.com.
Information provided by Berkley Design Professional is for general interest and risk management purposes only and should not be construed as legal advice nor confirmation of insurance coverage. As laws regarding the use and enforceability of the information contained herein will vary depending upon jurisdiction, the user of the information should consult with an attorney experienced in the laws and regulations of the appropriate jurisdiction for the full legal implications of the information.
Practice management recommendations should be carefully reviewed and adapted for the particular project requirements, firm standards and protocols established by the design professional.
Products and services are provided by one or more insurance company subsidiaries of W. R. Berkley Corporation. Not all products and services are available in every jurisdiction, and the precise coverage afforded by any insurer is subject to the actual terms and conditions of the policies as issued.