RPS Publications:

     Design professionals involved in renovation or remodeling projects should prepare themselves in advance to avoid problems down the road. Because invariably design documents will be maintained and made available to subsequent designers, it is important to anticipate the potential pitfalls that may arise as an original and also subsequent designer. Care should be taken in the creation of front-end documents, like proposal letters and contracts, to protect designers from expansive liability.

     As an original designer, at the contract formation stage, the issue of ownership of documents should be addressed. Many A.I.A. and Engineer Joint Contract Documents Committee (EJCDC) form documents address ownership of instruments of service, however, clients often want ownership rights to the professional’s work product.

     When owners wish to maintain control and ownership of instruments of service, design professionals should include language in the contract shifting the risk of reuse of those documents to the owner and away from the original designer. This concern is ever more present in the world of CAD and computer files, which are easily altered or duplicated. In addition, designers should require owners to remove any signatures or professional seals, electronic or otherwise, from documents reused or retransmitted.

     Many times, a renovation or rehabilitation project will involve changes to just a portion of the entire building. Under these circumstances, a designer must make sure the client receives a clear understanding of their scope of work. The designer does not want to assume responsibility for that portion of the building unaffected by the project.

     Typically, under the law, a designer is not responsible for not doing something clearly outside their scope of work for a project. A designer does not become responsible for an entire project when they do not undertake responsibilities for the entire project. So, in order to avoid a claim that the designer was in fact responsible for something beyond what was originally contemplated, it is essential that a clearly communicated scope of work be set out in writing.

     As a “subsequent designer,” on the receiving end of a set documents prepared by another designer, get some understanding of the prior contractual relationship. Of primary concern would be any copyright, trademark or other common law rights maintained by the original designer, if any. Unauthorized reuse of the documents could expose the subsequent designer to liability to the original designer. If there was an assumption of the risk of reuse of the documents by the owner, if there are problems, the owner may only have the “subsequent designer” to hold responsible. This can be addressed in the contract as well, with the owner providing some representation of the accuracy or completeness of the documents.

     Of more particular concern is the exact “use” that can be made of another designer’s work product by a subsequent designer. A licensed professional can only place their signature and seal on a set of documents prepared by them, or prepared under their direct personal supervision. This is to assure that someone takes professional and personal responsibility for the contents of the documents.

     Designers may attach a statement over their signature and personal seal, specifying the particular instruments, or portions thereof, intended to be authenticated by the seal, and disclaiming responsibility for any other part.

     However, Missouri regulations also address the responsibility of “successor licensees” and how they may properly take responsible charge of partially complete, or reused documents. The regulations require the successor licensee to, in essence, perform all professional services, including developing a complete design file with work or design criteria, redoing calculations, performing code research and making all other necessary or appropriate changes to the work. Non-professional services, such as drafting, need not be redone, but must be supported by the successor licensee’s work.

     Use of contractual protections, with knowledge of the state statutory and regulatory framework, will make that next project less daunting.