First, owners must know who the specifiers are before this question can be answered. Trust and confidence is an underlying core principle of the fiduciary duty licensed learned professionals (architects and engineers) owe to owners. As a licensed architect, I owe this duty to owners, and because I own Conspectus, the same duty attaches to my business.
For my entire career as a specifier, I have operated in a closet. I am completely isolated from the owner and even from most of the design team. Literally, my only project contact is with the project architect and project manager. I know this is not true for other architect’s consultants that attend regular design meetings and owner-contractor meetings. I find myself totally reliant on the project architect and project manager for all information relating to the project. And I am trusting that the comments and the questions I pose to them are discussed with the owner to ensure the answers meet the owner’s project requirements. Experience, however, tells me this assumption is not true.
Example 1: When drafting project specifications, I embed comments and questions directly in the specifications. I approach the specs by making the best decision I can, based on experience and the project information I have at the time. If another decision might be possible, I ask the architect to confirm the decision I made. I also explain what the other options could be and why I made the choice I did. I submit the draft spec. Because of the yellow and pink shading, the questions and comments are obvious to draw attention to the fact the specs are a draft, not completed. Shortly after I hit SEND, I can expect a response. “What are all these questions? I can’t submit the specs like this. Delete them and resubmit.” We never delete them; we only hide them. So now the architect has a record with all our questions and one without. Only the one without the questions is shared with the owner. Without the questions, the spec looks complete, decisions made. Yet, perhaps, the owner may have an opinion or preference about a question he will never see. And the entire team will lose an opportunity to learn more about what the owner wants. By removing the questions, the architect failed to protect the owner’s decision making capability.
Example 2: I work with an architectural firm which is a sustainable design advocate. The firm has a policy that every project will be designed sustainably, regardless if the project is registered with any formal program. They asked us to include sustainability requirements into their specs. Because many requirements were global, applying to all spec sections, I suggested creating a Division 01 section to collect all the requirements. “No,” I was told. “That will draw the owner’s attention to the sustainable requirements.” Instead, they insisted on the requirements being added to every spec section, essentially, covertly without any hint the requirements were for sustainability purposes. In fact, specific submittals to confirm compliance are not permitted. So the architect, by policy, imposes their preferences on their owners, presumably without their owner’s knowledge. The architect failed to provide full disclosure and possible conflicts of interest to the owner.
Example 3: An architect client came to me two weeks before a project was scheduled for bid issue. She was uncomfortable with the status of the spec she wrote. So she asked me to review the building envelope spec sections, only, and to make comments so she could compete the spec. She also asked for help with several new spec sections that would be needed. By telephone conversation to gather some background information and to gain some insight about the project before starting the review, I discovered some interesting facts. The spec was “written” in five hours and issued with the DD documents. The architect admitted she copied sections from other similar projects and assembled them into the book for this project. She reused some of our previous work. The spec was not updated after the DD issue. I took this project on, mostly out of curiosity. Thirty sections and more than 200 substantial comments later, I knew why she was uncomfortable. The previous projects were located in Climate Zone 4. This new one was in Climate Zone 5. Neither the spec nor the drawings included a vapor barrier that is required for Zone 5. This single comment had significant ripple effect on both the specs and the drawings for code compliance. The project completion was delayed one month due to VE. The architect finally asked to review the comments with me, the day before the new bid issue. I spent the final day writing new sections and correcting a few of the architect’s specs. Of course there was no time for review and coordination. The architect failed to inform the owner that the specs could not be properly completed for the original DD issue. The ripple effect caused additional failures – pricing and Value Engineering (VE) based on incorrect specifications, and final bid issue drawings and specs that are most likely still uncoordinated.
These examples are not isolated instances. They are common. Each example demonstrates multiple fiduciary duty failures, including lack of full disclosure, misuse of instruments of service, and failure to protect the owner’s decision making capability. Each failure puts me, personally as a licensed architect, and Conspectus at risk. As specifier, I cannot manage the risk the architect creates for me. Without direct access to the owner, I must resort to self-preservation techniques for my protection and hope the architect acts ethically.
This is now. The future must be different! Fiduciary duty will ensure that I come out of the closet.
The relationship between Owner, Architect, and Specifier must change. The specifier will be contracted to the architect or directly with the owner. Regardless, the specifier’s fiduciary duty will be to the owner. The architect cannot prevent nor circumvent that relationship, especially when the specifier is a licensed professional. So specifiers must have direct access to the owner to bring the total value of specifications services, including the skepticism of questioning the design to help find the optimal solution meeting the owner’s needs.
The black box activity used to create project documentation must end. Make the process transparent to minimize waste and rework and provide exceptional value to the owner. Document the owner’s project requirements. Dynamically adjust the requirements when necessary as design progresses. Give the owner the ability to proactively engage in the process and contribute his expertise directly. Record decisions and the owner’s informed consent as they occur. Monitor critical decisions through checklists to ensure decisions occur at an appropriate time and in an appropriate order.
Relegating specifications to a de minimus activity started in Design Development or Construction Documents phase must be abolished. Specifications are more than the documents in Division 01-49 as defined by The Construction Specifications Institute (CSI). Specifications include all the non-graphic project documentation. Specifiers must be engaged early to collect, analyze, organize, and document project requirements that define the problem that design must solve. Once documented, continuously test the design for compliance rather than waiting for prescribed milestones and backtracking as a result.
Value Engineering, as a scope and quality reactive cost‑cutting exercise, must stop. Specifiers must work in tandem with estimators to develop viable options to meet the owner’s requirements. Every requirement the specifier writes affects the project cost, sequence, and schedule. Documenting basic system descriptions early allows estimators the opportunity to analyze the impact. Armed with data, owners can make informed decisions considering quality, durability, performance, cost, sequence, and schedule rather than cost alone.
Conspectus developed ConspectusCloud as a new tool to implement a new process. We understand the importance and the transformative nature of fiduciary duty. Three years ago, we began developing our tool to improve project documentation and provide active engagement by the entire team – owners, architects, contractors, subcontractors, manufacturers, product representatives, literally everyone. As a result, we will deliver the complete project record – owner’s project requirements, performance criteria, design criteria, systems descriptions, and construction specifications to aid the owner’s construction, commissioning, and building operations. The entire process will be recorded, with complete audit trail where nothing and no one will hide. Our tool will allow us to analyze the data, to learn, and to continuously improve the industry with each completed project.
Risk, uncertainty, waste, and rework – all will be reduced. Owners will benefit!
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This was first presented October 4, 2018 Construct2018 in Long Beach, CA as my portion of a panel discussion titled A New Regime – Fiduciary Duty for Licensed Design Professionals. The other panelists were Ujjval Vyas, Ph.D., J.D. of Alberti Group and Frederick Butters, Esq, FAIA of Frederick F. Butters, PLLC.