Contractors and Designers: Two Key Parts of the Project Puzzle

While sometimes they work almost as a team, designers and contractors often make for a delicate fit.

By C. Jaye Berger, Esq.

Contractors and design professionals are essential people to have working on any construction job. On some jobs, the architect or interior designer may be instrumental in determining which contractor the client hires to work on the project. Clients tend to rely heavily on advice from such professionals, especially if the design professional and the contractor have worked together before. A contractor and a design professional may even come to the client as almost a team.

However, on most jobs, the design professional has never worked with the contractor before if the client has selected it thanks to a low bid or negotiated price. As with any new relationship, there will be a "getting to know you" period. There may also be tension due to each party establishing respective turfs. Indeed, some contractors complain that the design professional controls everything and that they can never talk to the client. Other clients want to be very involved in talking to both the contractor and the design professional.

A core benchmark is who takes ultimate responsibility for project work. Design professionals who hire the contractor put themselves in an uncomfortable position, because they are then "legally responsible" for the contractor's work, even if they do not actually participate in that work with a hammer and nail. If the job does not turn out the way the client hoped, the client would blame the design professional. While the client has no contractual relationship or "privity of contract" with the contractor, it does not mean that party is "off the hook" if there is a construction problem, however. It only means that the client has to sue the design professional, and the design professional would in turn sue the contractor.

This hiring arrangement can also take some of the edge off the design professional's objectivity in overseeing the work. It is difficult, if not impossible, to criticize the contractor's work when you are the one who hired the firm. It is important for the client to have the benefit of two separate, independent opinions, even if they differ. The contractor should be able to express its opinion when it disagrees with the design professional's approach without regard to who brought it on the job and without fear of being fired. Likewise, if the design professional does not like the contractor's work or even worse, feels the contractor should be fired, he or she should be able to discuss that freely with the client.

The other downside to working with a designer-hired contractor is that, as a matter of law, both the owner and contractor are responsible for the safety of the work crews. If someone gets hurt on the job, the designer may well be viewed as the "contractor" under labor law, even though designers seldom have the appropriate insurance to defend such a lawsuit.

Even when a client hires the contractor and designer independently, other issues can arise. For instance, the most difficult and potentially problematic way for a contractor to begin a project is if the drawings and specifications are not yet complete. There is pressure on the contractor to give a price, even though the firm cannot be certain how to base a price. If the contractor agrees to do the work for a fixed price, but that price does not hold up if the work turns out to be more extensive, it makes for a potentially explosive situation.

A clear way to defuse such problems is by getting the contractor very involved in pre-construction planning and meetings, contributing information about pricing. In that way, the design develops in accordance with the budget that the client has in mind and the contractor knows the price of the contemplated work. This approach also enables the contractor and the designer to become better acquainted and have a better working relationship. The preconstruction work can be under a separate agreement, and once the project has been completely designed, the players can sign a separate contract for the rest of the work.

Once the work begins, any time the contractor has a change order request, at least some part of it will probably also involve work by the design professional. Both the contractor and the design professional need to speak up when this type of situation arises, so that the client knows the entire price of the additional work.

Issues also frequently arise about responsibility for shop drawings and measuring spaces. Sometimes there is a question about who should prepare shop drawings. This should not be the case - it's the design professional's role to review them promptly and turn them around with comments. In any such case, each party should be clear about what it is doing and what it is not doing. No one should ever say, "But I thought you were taking care of that."

Design professionals are well-advised to make themselves available and be present at critical points in the construction lest the client claim there is no evidence of incorrectly installed work. But in the big picture, design professionals and contractors need to be able to work together harmoniously in order for the project to succeed. None of this can happen if the contracts for the work do not spell out each party's responsibilities.