Are clients asking you to contractually agree to design to address COVID-19 air quality concerns?
We asked 220 individuals from architect & engineering firms and an overwhelming majority (75%) answered that they are not being asked to design to Covid-19 air quality standards.
Tips for addressing covid air quality design requests:
Don’t over promise or inadvertently elevate the standard of care by agreeing to onerous contract language.
- Watch for contract language like “eliminate” air quality concerns.
- Designing with Covid in mind is a new area and is difficult to define since it is an evolving issue.
- Ask the client to articulate what they mean very clearly. Air quality standards should be customary published standards, keeping in mind that those standards may change in the future.
- Carefully dissect the contract language (and RFP if it will be incorporated by reference into your contract) and think about how the language could be construed against you.
- Don’t promise to achieve something that can’t be defined properly in the first place.
For additional best practice during the pre-contract phase for Architects & Engineer insurance risks from part 1 of our 6 part webinar series, read our top 5 tips:
1. Evaluate the client
- Prudent client selection is a critical component to a successful project so evaluate the client carefully, especially if it’s a new client for your firm.
- You want to have a good understanding of the client's experience and the prior projects (successful and problematic) they have been involved in.
- Think about who the client is (is it one person, group such as a school board or HOA, company, community groups, government entity) and if there is potential for third party liability.
- Evaluate who is involved in each stage of a project. Client selection is important because all stages of a project may become relevant if an issue arises during the project.
- If there was a previous issue when you worked with the client, review the ultimate outcome and the process of issue resolution.
2. Review the scope of the project
- Be honest in your evaluation as to whether this project is a stretch for your firm’s capabilities or right in your wheelhouse.
- Think about your experience successfully dealing with the client type. For example public entities (as compared to private clients) are commonly stewards of public resources so will be driving terms and conditions that may be beyond what you are expecting if you haven't worked with public entities in the past.
3. Assess the RFP
- Make sure the client is not trying to raise the standard of care, including guarantee to meet a deadline regardless of intervening delaying factors beyond your reasonable control.
- Check the contract carefully. Proceed cautiously if the client wants to incorporate the RFP into the contract in an attempt to include onerous guarantee language that inappropriately elevates the standard of care.
- Think of the RFP as a client wish list. The RFP includes desires, expectations and wishes for the project that may go beyond the coverage provided by your professional liability insurance policy.
- Be careful about including an RFP into the contract as it could directly conflict with (and prevail over) language in your contract.
- Try to meet with the client to discuss problematic language so that the client maintains realistic expectations.
4. Inspect the budget
- If the RFP states that the budget is "very important" clarify in the contract that you cannot ensure the budget is met and you can only exercise the standard of care since you could be found in breach of the contract if you agree to meet the budget and then budget is not met.
- Determine whether the client's quality expectations match the budget. This is a good opportunity to educate the client and manage expectations.
- In general, remember the tone of the relationship is being set at this stage of the project, so avoid making promises since guarantees set expectations that are not realistic and may inappropriately heighten the standard of care.
5. Document communications in writing
- Express views and address concerns to those preparing the proposal.
- During some RFPs there is a question and answer period so use this opportunity to communicate concerns about client expectations that raise a red flag.
- If you have a persistent client who expects you to meet unrealistic goals, the client, may still press you to overperform in spite of language so familiarize yourself with the team involved in the project to establish good lines of communication as the project proceeds.
- The people you deal with in the beginning of a project may not be those involved in the middle or at the time of a claim. So now is the time to make clear in writing what you are responsible for and what you aren’t.
- Words are important as they could get twisted if a claim arises. If you agree that the schedule is “vitally important” and didn’t stick to the time frame, you could be found in breach of contract depending on the interpretation of the contract language.
For more tips around the pre-contract phase of a project, our Beazley brokers and insureds can listen to the full webinar or view our slide presentation by using their log in credentials to access the A&E risk management portal: www.beazley.com/aeriskinfo