Guest blog post written by J. Scott Shannon, Esq., of Lee/Shoemaker PLLC. Scott Shannon is Senior Counsel at Lee/Shoemaker PLLC, a law firm devoted to the representation of design professionals in DC, Maryland, and Virginia. The content of this article was prepared to educate related to potential risks, but is not intended to be a substitute for professional legal advice.
The Centers for Disease Control and state and local governments have issued social distancing measures to confront the COVID-19 pandemic. For design professionals under contractual obligations to provide design and construction phase services for ongoing projects, the delivery of those services within the structures presented by public health mandates requires due consideration of the standard of care. Project deadlines and financial concerns may distract other stakeholders. Design professionals can see the entirety of projects and are positioned to provide the team leadership for implementing measures to keep the work moving forward while safeguarding the health of everyone involved without intruding into the contractor’s province of site safety and means and methods of construction.
Defining the Standard of Care in Non-Standard Times
Applicable to all design professionals, the bedrock articulation of the standard of care by the AIA is “what a reasonably prudent architect would do in the same general locale, in the same time frame, given the same or similar facts and circumstances.” The design professionals’ legal responsibilities to their clients are examined in light of what a reasonably prudent architect or engineer would have known and done at the time the services were performed.
While The Architect’s Handbook of Professional Practice provides guidance to architects for meeting the standard of care in typical practice under normal circumstances, the current environment is anything but normal. At some point down the road, an owner seeking to recoup additional costs may look to the services provided by the design professionals during this pandemic. The steps taken by architects and engineers to provide ongoing project services while operating under COVID-19 restrictions will define what was reasonable and prudent for determining the applicable standard of care during this time.
Understanding the Standard of Care in Non-Standard Times
Notwithstanding the unusual circumstance in which we currently find ourselves, there are a variety of resources available to architects to understand the standard of care applicable to their services:
- Publications by the AIA and the constituent chapters;
- Webinars addressing how other design professionals are responding to the pandemic; and
- Discussions with other professionals—both internal to your firm and external within your profession—on strategies for keeping projects moving forward under the current circumstances.
Design professionals should be communicating with each other during this public health crisis to assess the protective measures being taken within the construction industry, maximizing the tools available to continue providing professional services and working towards a consensus on reasonable and prudent responses of general applicability.
When presented with a unique challenge such as the ongoing social distancing and travel restriction mandates, the prudent design professional may want to consider gauging how others are addressing the challenges presented by the situation (without disclosing any confidential information, of course), documenting those discussions (in your internal records), and incorporating what is working for others into your approach. Consulting with other design professionals on particular challenges will go far towards defining the standard of care that will be applied should questions arise as to whether the design services provided during this period were reasonable and prudent. Conveying those measures to your client owners and contractors for implementation on the projects will go far towards fulfilling your standard of care obligations.
Providing Services in Accordance with the Standard of Care in Non-Standard Times
Daily life has been disrupted by COVID-19 for several weeks already, and will continue for an indeterminate time into the future with the potential for repeat occurrences at least through the end of 2020. Work on projects continues at varying levels and will need to resume at normal levels when this public health emergency ends. The prudent design professional should give thought to the following:
- Whether your design development process has been affected by the pandemic?
- Whether your QA/QC processes have been affected by the pandemic?
- Whether your ability to perform normal site visits have been affected by the pandemic?
- Whether your review of applications for payment have been affected by the pandemic?
Open channels of communication with the owner and/or the contractor is critical to identify where risks may be created by the “new normal” and how those risks might be appropriately addressed. In short, proactive planning and communication may help to avoid claims that a design professional failed to meet the applicable standard of care during these uncertain times. These efforts should all contribute to achieving a successful project that weathers the exigencies of this COVID-19 crisis while meeting the standard of care required by these non-standard times.
The standard of care is a variable concept dependent upon the design professional’s and project’s location, the time when the project is being designed and built, and the particular circumstances of the project. As technologies evolve, materials science advances, zoning and building laws are amended, the design professional is required to keep current to meet the standard of care. Of equal importance are disruptive occurrences impacting how design services are provided, such as the current COVID-19 pandemic, the influences of which will be long-standing and likely incorporated into how the standard of care is defined going forward. The prudent design professional will rise to meet the current COVID-19 crisis, to provide deliverables that continue to meet the changing standard.
Victor will be hosting a webinar featuring Jonathan Shoemaker, of Lee/Shoemaker. He will address the impacts of the pandemic on design professionals while using industry standard documents as a foundation.
Don’t Just Flatten – Get Ahead of the Curve in Risk Management
Wednesday, May 27, 2020
1:00 – 2:30 pm EDT