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Responsibilities of Creativity
Necessity of Disclosure and Informed Consent
Arthur O'Leary, FAIA, MRIAI
 


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Architects and engineers value creativity, originality, and innovation above all other virtues. We fervently strive to be at the cutting edge of design. We consider ourselves to be independent thinkers. We want to be leaders, not followers. Our creativity and ingenuity is rewarded by plaudits as well as envy from our peers and colleagues and sometimes, even praise from our clients.

For innovation to be truly of value, it must be responsible. It should be for the benefit of society and the community in the broad sense as well as advancement of the profession. However, the architect’s immediate and overriding duty is to the client. The client should be helped, certainly not harmed, and should be the primary beneficiary of the architect’s creativity and innovation.

Trail Blazing
Sometimes our novel creative ideas propel us into areas that haven’t been completely explored. We boldly venture into uncharted regions of the unknown, untested, and unfamiliar. We risk the possibility of costly and embarrassing failure when we experiment with unusual forms and arrangements, new materials, daring new uses for old materials, unorthodox procedures, and imaginative techniques. These audacious forays into the unknown often expose us to the possibility of unexpected adverse side effects such as imperfect performance, unusual chemical reactions, dangerous stress concentrations, unforeseen leaking and sagging, excessive cost, or other catastrophic surprises, including at the extreme, collapse, personal injury, and loss of life.

Research and Investigation
Innovation cannot be completely avoided, however. It is necessary to bring new life and progress in design and construction. But, whenever we decide to stray from the worn and familiar path, we are required to do the necessary research, scrutiny, and analysis to assure that we know the characteristics and proper uses of materials and their realistic limitations.

The architect should apply thoughtful reasoning in carefully analyzing the phenomenon or proposed procedure to make sure that no known general principles are being violated. No innovation, no matter how clever, can ever overcome the law of gravity, the shingle principle, capillarity, galvanic corrosion, heat loss, thermal expansion and contraction, or any other of our immutable physical laws and principles. If a new material or process seems to be too good to be true, it probably is.

Innovation with Unfortunate Results
Regrettably, some original ideas do not work as well as we had hoped and expected. Whether we correct the miscalculations during the construction or afterwards, the additional costs will have been entirely unexpected and unaccounted for. Often the repair or reconstruction has to be done on an expensive trial and error basis. In some cases, the idea must be completely abandoned after the expense of inordinate amounts of time, hassle, and money. Very few clients would be favorably disposed to pay for the unbudgeted costs of repairing new construction that fails to live up to expectations.

Disclosure and Informed Consent
Architects know who is going to have to pay for the repairing and reworking of building defects caused by faulty design. It will be the client. Those who intend to use new or untested ideas should, at the very least, talk it over with the client before deciding to proceed. The architect should explain all of the known disadvantages as well as the perceived advantages. If the material or procedure is untested or has not been in existence long enough to have a proven track record, then the client should be made aware of this.

After a complete disclosure of the architect’s intentions, the client should be asked for consent to proceed. Such consent will be worthless, however, even if in writing, in the absence of a complete and honest explanation of the unconventional or innovative proposal. The client must be made aware of all relevant information needed to give informed consent. If, after a reasonable explanation, the client will not give consent, then the innovation should be abandoned.

Written Consent
All risks should be explained in plain understandable language. If the client were agreeable to the architect’s creative proposals, then it would be advisable to obtain the consent in writing. If the client is reluctant or refuses to give written consent before the construction is commenced, then this will give the architect a realistic prediction of the client’s probable attitude if the brilliant idea backfires.

When an innovative design or procedure fails and causes extra expense, many clients would react by stating that they would never have approved the proposal if they had only known all of the realistic facts and risks in advance.

Controlling Subconsultants
Architects’ engineering and other consultants sometimes include the use of innovative concepts, designs, or procedures without mentioning them, assuming that the architect may not be interested in the minor technical details of their arcane engineering specialty. The consultants should be advised that all proposed innovation must be discussed and disclosed to the client. If the client’s consent cannot be obtained, the innovation should not be used.

Warranties
If the new material or process is being offered by a vendor such as a contractor, installer, material supplier, or equipment manufacturer, the architect should ask for written warranties or other assurances of performance. Architects should not be hesitant to ask proposers’ sales representatives for written indemnity and protection from the adverse consequences of using the new product or procedure.

The architect should not presume to judge the adequacy of warranty language, but should advise the client to have it evaluated by legal counsel. Most architectural service agreements provide that the client furnishes all legal services.

Effect of Innovation on Professional Liability Insurance
Architects who are contemplating the use of innovative or nonstandard designs or procedures should review the policy limitations and exceptions that could possibly reduce or eliminate indemnity coverage of errors and omissions.

Other Forms of Innovation
Architects can unintentionally mislead their clients by proposing the use of materials or firms that are not completely familiar to them. Specifiers should not include materials, processes, or equipment in their specifications if they are not aware of all relevant characteristics. Inclusion of a product name in the specifications is tantamount to an unqualified recommendation. The client is justified in assuming that the specifier has properly researched the specified item and concluded that it is appropriate in all material respects for the intended use.

Similarly, architects, when compiling a list of proposed bidders for a project, should realize that the client would rightly assume that each contractor on the list has been deemed suitable. The client’s reasonable assumption would be that the architect has properly investigated each contractor’s experience, qualifications, financial capacity, and reputation, or has had previous satisfactory experience with them. When including unfamiliar or unknown contractors on a list of prospective bidders, the architect should disclose this important information. The client can then decide whether or not to retain the names on the list or to authorize more investigation.

For additional reading on innovation and professional standard of care, refer to “A Guide to Successful Construction - Effective Contract Administration,” Third Revised Edition, by Arthur F. O’Leary, FAIA, MRIAI, published by BNi Publications, Anaheim, California.

* * *
A Guide to Successful Construction — Effective Contract Administration by Arthur F. O’Leary, FAIA, MRIAI and Construction Nightmares, Jobs From Hell & How to Avoid Them, By Arthur F. O’Leary and James Acret, Esq. are available at www.bookworkz.com.


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