by C. Douglas Barnes
In the AIArchitect, January 9, 2009, article by Michael Strogoff, AIA, “Negotiating With a Client's Representative Requires Different Tactics,” he mentioned "government agencies." More and more I have been finding that there is no "negotiating" involved. The architect-owner agreements are part of the request for proposal (RFP) package. We are required to sign an affidavit with our proposal that says that we agreed to all the terms presented in the RFP including an attached contract and ridiculous insurance requirements.
The architect-owner agreement that is part of the package doesn't even define the work that the architect is supposed to complete. Except, it may say something like "provide all required architectural services required to produce the architectural designs for the City of Tulare Fire Station Number 2"; nothing about what the city is supposed to provide and nothing about construction phase services, and so on.
They even have the gall to include a liquidated damages clause that requires the architect to pay several hundred dollars a day if the work is not completed within the arbitrary dates that are included in the RFP.
All of this is written by the city attorney and the city's "risk management" consultant. I have tried writing letters about these matters, both before the proposals are due and before I am asked to sign the contract. I have even included a copy of AIA B-141 with my letter in hopes that they could rewrite their contract to be more reasonable. The city attorney didn't even bother to answer my letter.
A recent school project RFP had 40 architects’ proposals submitted. If I won’t sign their silly contracts, the next firm will.
I blame the AIA for this. The AIA has not kept the legal profession involved in contract development or the legal profession would be more open to using AIA contracts. The legal profession thinks that the architect is simply another tradesman working on government projects. They have completely missed the idea that the architect is supposed to be a representative of the owner and not just a guy producing drawings. The legal profession feels that any thing the architect has to say is about the architect's self interests and has nothing to do with providing good services.
Michael Strogoff, AIA, responds:
Doug—thanks for the letter. Unfortunately, many risk managers and lawyers, in their zeal to protect the interests of public entities, impose extremely unbalanced owner-architect agreements and present them as “take-it-or-leave-it” propositions. The irony is that by imposing such onerous agreements, the most qualified and well-managed architecture firms shy away from submitting proposals and/or entering into agreements with these public agencies and the agencies are then left with lesser qualified firms that provide less risk protection to the agencies, users, and general public.
I do take issue with your suggestion that AIA is to blame for this by not keeping the legal profession involved in contract development, as I believe that the AIA’s work on contract documents and their advocacy on our behalf have been extremely effective. Unfortunately, some “risk” managers and attorneys will always choose to impose unbalanced terms, naively thinking that they will get better results. Yes, we have much more educating to do.
(For some specific suggestions about how to respond to these agencies, watch for an upcoming article, “Follow These Steps When an Owner Presents You with a One-Sided Agreement.”)