Even if you are the preeminent firm in the country in the design of sports stadiums, museums, airports, etc., it would be unwise to agree to provide services as defined in a recently reviewed contract:
The Construction Documents and all other services provided by Architect under this Agreement shall be free from defects when measured against the highest standards of architectural and engineering practice at the time of approval of the construction documents by Owner.
Clients are sometimes confused about the standard of care applicable to the services of design professionals. While it is not unreasonable for a client who selects a design professional on the basis of a special expertise or demonstrated competence to judge that design professional against other design professionals with similar expertise, the standard must be something that is attainable. It’s impossible to provide a set of documents that are “free from defects” or to meet “the highest standards of practice.” Design professionals can avoid the problem of unfulfilled expectations by carefully crafting contract language that reflects a standard of care applicable to the type of project. For instance, if a firm holds itself out as having an expertise in a specific project type, the applicable standard of care may be that of a similar subset of firms with the same expertise.
When clients seek to change the standard of care, a discussion with the client is essential to examine the practicality of a modified performance measure. If the client selects and compensates a design professional for special skills, experience, or talent, the definitional uncertainty of “highest” should be replaced with a measurable standard of care based on the qualifications used to select the design professional.
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