Standard of Care

Standard of Care

Defect and delay claims comprise the majority of construction litigation. These claims are never straightforward, and often very complicated and difficult to quantify, especially without the aid of an expert. However, an even more complex task resides in negotiating Standard of Care claims, which pertain to both building and design industry professionals.
Invariably, construction disputes tend to focus on the ‘work proper,’ and don’t consider the value of General Requirements or General Conditions toward a given claim. I believe this is owing to the general inability of GCs and CMs to accurately represent such costs with any acceptable degree of exactitude, and the owners being unaware of their intrinsic value. In my work as an expert witness for construction damage litigation, I sometimes suggest the quantifying of the value of General Conditions and General Requirements for contract disputes, where standard of care comes into question. After all, if GC/GRs are 5-10% of the contract value, does it not behoove one to examine the true nature of such costs?
Standard of Care measures are often thought of as a tacit component of the 5-10% mark-up contractors charge for General Conditions. General Conditions are not the same as overhead costs, for which a contractor must also carry a percentage. The architect friendly AIA 201 General Conditions of the Contract for Construction, iterates those provisions -which will include indirect, or ‘soft-costs,’ necessary to prosecute the project, but the document is sometimes ambiguous. It behooves one to keep this in mind when a claim involves an architect under an AIA contract.
Design industry professionals Standard of Care claims would seem easier to pin down, because they pertain to a relatively singular, well defined process: to provide constructible drawings. A contractor’s Standard of Care is well defined in AIA A201. A contractor’s standard of care pertains to a much broader scope of services, and for that reason is more difficult to define.
For example, if a contractor maintains a messy jobsite, he is delivering a poor standard of care as pertains to General Conditions, yet because “messy” is subjective, and because General Conditions are seldom itemized down to each activity, such a claim defies monetization. Yet, if a contractor categorically fails to deliver on all or most general condition requirements, a compelling argument can be made using the contractor’s fixed percentage general conditions as a cost-basis.
The challenge in proving standard of care claims against design professionals is the determination of the percentage completed, or rather the overall constructability and integrity of designs, which is always a bone of contention. This is because of the multitude of terms used by design professionals to define their sketch and drawing issues. Graham has reviewed thousands of drawings in his career – far more drawings and projects than any single architect could boast. This experience gives him prowess in accurately assessing drawing completion status.