Written by: Juan J. Miranda

Construction Administration service (“CA”) can be a daunting task for Design Professional particularly on large projects where significant nonconforming work is discovered. The complexity of the CA services often depends on the scale and scope of the project, expected versus actual site conditions, the use the proper means and methods to construct a project as designed, the effectiveness of communication and cooperation between the Design Professional and the general contractor (“GC”), and the ability of the parties to quickly identify and remediate non-conforming work. But disagreements do occur, and Design Professionals can find themselves at odds with positions taken by a GC and its subcontractors regarding conformity of work.   As a practical matter, in order to minimize their own role in delays and increased costs on a project, GCs and/or subcontractors may try to shift responsibility to the Design Professional based their role during CA services.  

On most projects, the Design Professional and the GC will not have contractual privity with one another and will instead contract directly with the Owner of the project. As such, any claims brought by the GC against the Design Professional will generally sound in tort and negligence arising from acts and omissions taking place during the construction of the project and pursuant to the Design Professional’s CA obligations owed to the Owner. Although no contractual privity exists between the Design Professional and GC, contractual provisions contained in the construction contract between the Owner and the GC may nevertheless provide defenses against claims brought by the GC against the Design Professional, particularly claims arising from CA.   

For example, §4.2 of A201-2017, General Conditions of the Contract for Construction, and its predecessors, contains provisions that may shield a Design Professional against claims arising from their CA decisions: 

§ 4.2.6 The Architect will have the authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect will have authority to require inspection or testing of the Work in accordance with Section 13.4.2 and 13.4.3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, suppliers, their agents or employees, or other persons or entities performing portions of the Work. 

 Arguably, §4.2.6 is an exculpatory provision in favor of Design Professionals shielding them from liability arising from CA decisions made in good faith during the project. The theme of shielding the Design Professional from liability arising from decisions made in good faith is further reflected in § 4.2.12, which states in pertinent part: 

§ 4.2.12 . . . When making such interpretations and decisions, the Architect will . . . not be liable for results of interpretations or decisions rendered in good faith.  

 At least two courts in Louisiana have applied these provisions as shields against tort claims brought by contractors against Design Professionals. In Farrell Constr. Co. v. Jefferson Par.,¹ a Design Professional filed a motion for summary judgment and motion in limine seeking, inter alia, to dismiss a general contractor’s claims against the Design Professional arising from CA services. Interpreting §4.2.6, the court held that the provision precluded tort liability on behalf of the Design Professional for acts and omissions which took place during the course of construction but did not bar claims related to the preparation of plans and specifications prior to construction.² 

Likewise, in Patriot Contracting, LLC v. Star Ins. Co.³, an architect moved for partial summary judgment seeking to dismiss a contractor’s claims for professional negligence in administering a construction contract on the basis that a § 4.2.6  and § 4.2.12 in the contract precluded any liability. The court found that the AIA provisions were valid and served to relieve the architect of any duty towards the contractor and limit claims for negligent contract administration.⁴ The court further found that because the clauses refer to duty and liability generally, the clause limits both contractual and delictual duties.⁵ The court granted summary judgment to the extent that the contractor could not recover for acts of contract administration that the architect made in good faith.⁶  

The Farrell and Patriot cases apply § 4.2.6  and § 4.2.12 as they were intended, which is to shield the Design Professional from liability arising from their good faith decisions made pursuant to their CA obligations on the project. In the event of a dispute, Design Professionals should make themselves and the general contractor aware of such provisions in the construction contract to discourage costly litigation. The Design Professional should also maintain thorough records of their decisions making process when administering CA services to further shield against allegations of bad faith decisions. In sum, knowing the ins and outs of the construction contract between the owner and the general contractor can help avoid costly litigation and encourage amicable resolution of disputes arising during construction.