This is the first in a continuing series of articles addressing issues facing public owners in construction projects. Each month a different topic will be addressed regarding a different phase in the construction process and/or important issues arising during one or more of those phases. This article addresses selecting a design professional for your project. Suggestions for future article topics can be sent through the link at the end of this article.

A successful construction project begins with a successful design. Indeed, the role of the design professional in a construction project is critical to a project that satisfies the needs of the owner. Consequently, the choice of the design professional is one of the most important choices to be made during a construction project, as it will ultimately influence every facet of the project.

In public procurement, an owner is limited in its ability to select its contractors due to the requirements of public bidding. However, design professionals, due to the nature of the services they provide, fall outside of these requirements, thereby allowing owners considerable flexibility in their selection. A public owner is not required to solicit bids or proposals from design professionals, or select the design professional that is the least expensive. Rather, the public owner has the freedom of choosing the design professional that best meets the needs and objectives of the owner, and the project at hand.

It is advisable to consider proposals from numerous designers, and to have formal presentations of their abilities and concepts for the project. The individuals who would be assigned to the project team (including designers and contract administrators) should be part of the presentation, so that the owner can assess whether an appropriate working chemistry is attainable with the specific individuals that will be involved in the project. As the design professional will ultimately shepherd the project from concept through construction, a strong working relationship with effective levels of communication is vital.

Prior to settling on a particular firm, the owner should discuss any specific project and/or contractual requirements that are nonnegotiable. For example, if the owner will require the architect or engineer to be present at every project meeting, and at every meeting of any specially formed committees (such as building committees), that should be discussed early on in the courting stage. This will eliminate having the need to negotiate for these items after a particular designer has been settled upon.

It has become the industry norm to use form contracts during construction projects. Perhaps the most popular of the forms used are those prepared by the American Institute of Architects. While form documents can provide a solid contractual foundation for construction projects, they are intended to be, and should be, modified to meet the particular needs of each project. Moreover, these form documents tend to protect the interests of the profession that has produced them, and consequently, additional safeguards for the protection of the owner should be incorporated. An owner should establish during the design professional review process whether the design professionals under consideration will insist upon using their own form agreement, or whether the owner will have one prepared through its counsel. Any form agreement that is being proposed should be produced in advance of any final selection, so that the design professional's expectations regarding the contractual relationship are understood prior to committing to any particular designer. Moreover, any agreement should be reviewed and revised by the owner's Solicitor or Special Counsel to ensure that the owner's needs and desires for the project are protected. A rule of thumb for negotiations is this – regardless of what was discussed or promised during the presentation, proposal or negotiations, if it is not in the contract, it generally is not part of the deal.

The selection of a design professional cannot guarantee, under any set of circumstances, a perfect project. However, careful selection of the design professional, and appropriate negotiation of the contract terms, can provide a solid foundation for a successful project.

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Mr. Winfield is the Administrative Chair of Rhoads & Sinon LLP’s Construction Law Group. If you have questions regarding a planned or existing public project, or have suggestions for future article topics, you may reach Mr. Winfield at (717) 237-6703, or by e-mail at mwinfield@rhoads-sinon.com.