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This is the first in a six-part series on this blog addressing design professionals’ scopes of services, comprised of: (a) Part 1 – Key Concepts and Source Documents; (b) Part 2 – Elements of Design Professionals’ Scopes of Services; (c) Part 3 – Limitations: Introduction and Essentials; (d) Part 4 – Limitations: Construction Documents; (e) Part 5 – Limitations: Permitting and Disagreements; and (f) Part 6 – Elevated Standard of Care, construction Cost Estimates, and Phased Authorizations. |
Certain professionals, such as physicians and attorneys, have a fiduciary responsibility for their clients, meaning they are responsible to act only in the best interest of their client. Indeed, the Latin word, “fiduciary” means “trust”. Therefore, one does not typically see lawyers and doctors retained via a written contract. Many statutory and ethical obligations apply to the services of attorneys and physicians.
In contrast, design professionals, such as architects, engineers, and geologists, do not customarily have a fiduciary responsibility to their clients and are typically retained under a written contract. The myriad of services and approaches available for addressing an engineering or architecture assignment often necessitate a written contract. All too often, however, design professionals and their clients devote inadequate attention to the scopes and contractual terms under which design professionals are retained.
Design professionals’ contracts commonly include a written agreement or set of contractual terms and conditions, a written scope of services, and, sometimes, other exhibits, such as an exhibit setting forth the design professional’s compensation method and amount. While all elements of the professional services contract likely have equal weight and standing, often the greatest effort and attention is focused on developing the scope of services. This blog post presents advice for developing scopes of services that benefit both the design professional and its client.
Key Concepts for Scopes of Services
Scopes of services list the actions required of the design professional for its client. They range from brief and general to detailed and specific. Disagreements between design professionals and their clients often center around the scope of services. Therefore, a detailed, clear scope for the services needed by the client is both a tool to foster a positive relationship between the client and design professional and is important for both parties’ risk management.
The scope of services should be appropriate for the assignment and its risk. In general, the design professional’s scope should address:
- The design professional’s required services.
- Potentially related services not included (often termed, “additional services”).
- Time allowed for performance of the services.
- Specific deliverables, such as reports, calculations to be furnished, models, drawings, specifications, meeting minutes, written recommendations, and others. The form of each deliverable should be indicated, such as paper or electronic copies and, if electronic, the required file type and delivery method.
- Other information, discussed below in detail.
An appropriate scope of services is essential for expressly setting forth the client’s goals for retaining the design professional; documenting the detailed basis of the design professional’s compensation by the client; indicating the extent of the facilities evaluated or physical improvements to be designed; placing limits on the extent of the design professional’s services to control “scope creep” (no scope should be “unlimited”); and establish the basis for amendments, if any, for changes.
The scope of services should be developed before pricing the services. Optimally, the client should review and comment on the draft scope before the design professional’s proposed compensation is determined. When the budget for the services is established, the design professional’s project team should use the scope as a checklist to ensure all services are properly priced.
Source Documents
When developing a new scope of services, avoid starting from a blank page. Source documents may include a detailed scope of services from another, similar project or the model scope of services in widely used standard agreement forms for design professional services. Regardless of the source document, it is always necessary to carefully review the source language and edit it for the current project. Skimping on this to save time during proposal and scope development may cost either the design professional or its client dearly after the contract is signed and it is revealed the scope is not appropriate for the assignment.
Among the best source documents are the example scopes of services included in widely used, model agreements for design professional services, including the following by the American Institute of Architects (AIA):
- B101—2017, Standard Form of Agreement between Owner and Architect, Articles 2-4.
- B201—2017, Standard Form of Architect's Services: Design and Construction Contract Administration.
- C401—2017, Standard Form of Agreement between Architect and Consultant, Sections 2-4
- B133—2019, Standard Form of Agreement Between Owner and Architect, Construction Manager as Constructor Edition, Sections 2-4.
- B143—2014 (2024), Standard Form of Agreement between Design-Builder and Architect, Sections 2-4.
- And many others.
The Engineers Joint Contract Documents Committee (EJCDC) publishes the following model, detailed scopes of services:
- E-500—2020, Agreement between Owner and Engineer for Professional Services, Exhibit A.
- E-570—2020, Agreement between Engineer and Subconsultant for Professional Services, Exhibit A.
- CMA-500—2021, Agreement between Owner and Engineer for Professional Services When Owner Retains a Construction Manager as Advisor, Exhibit A.
- CMAR-500—2023, Agreement between Owner and Engineer for Professional Services When Owner Retains a Construction Manager at Risk, Exhibit A.
- D-500—2016 (2023), Agreement between Owner and Owner’s Consultant for Design-Build Project, Exhibit A.
- D-505—2016 (2023), Agreement between Design-Builder and Engineer for Professional Services, Exhibit A.
- And many others.
Other model scopes are included in the standard design professional contracts of the Design-Build Institute of America (DBIA) and the Associated General Contractors of America (AGC) ConsensusDocs.
Regardless of whether the design professional’s scope of services is in a proposal, presented in a letter, part of the agreement language (as in AIA agreements), or an exhibit to the agreement (as in EJCDC documents), they should be clear, concise, complete, correct, and coordinated with other elements of the design professional’s contract and the design professional’s third-party obligations in any associated construction documents or agreements with others retained by the design professional’s client, such as an owner-hired construction manager as advisor (CMa).
Conclusions
Because design professionals can be engaged to provide such a wide range of services over many technical specialties for which standard prescribed methodology may not always exist, , they are normally retained under a written contract that includes a reasonably detailed scope of services. A clear, appropriate scope of services benefits both parties to the design professional contract. The scope of services for a project should be reasonable and developed from appropriate source documents, including standard design professional services contract language by AIA and EJCDC.
Forthcoming installments in this series include: Part 2 – Elements of Design Professionals’ Scopes of Services; Part 3 – Limitations: Introduction and Essentials; Part 4 – Limitations: Construction Documents; Part 5 – Limitations: Permitting and Disagreements; and Part 6 – Elevated Standard of Care, construction Cost Estimates, and Phased Authorizations.
Acknowledgments: The author gratefully acknowledges the assistance of Bruce Firkins, PE, PLS, of Bolton & Menk, Inc., in Minneapolis, MN. Mr. Firkins is the chair of EJCDC’s Engineering (E-Series) Subcommittee and kindly reviewed and commented on drafts of this article..
Copyright 2023 by Kevin O’Beirne
The content of this blog post is by the author alone and should not be attributed to any other individual or entity.
The author of this blog post is not an attorney and nothing in this blog post constitutes legal advice. Readers in need of legal advice should consult with a qualified, experienced attorney.
Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 35 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the engineering specifications manager for a global engineering and architecture design firm. He has been a member of various CSI national committees and is the certification chair of CSI’s Buffalo-Western New York Chapter. He is an ACEC voting delegate in the Engineers Joint Contract Documents Committee (EJCDC) and lives and works in the Buffalo NY area.
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