A DESIGN PROFESSIONAL'S DUTIES TO AN OWNER DURING CONSTRUCTION  

After a design professional has entered into a contract with an owner for a construction project, the design professional has certain duties and responsibilities to the owner, which duties and responsibilities may arise under the contract or may be implied by law. The design professional may be called upon to perform such administrative services as acting as the owner's agent, observing or inspecting a contractor's work, reviewing payments to the contractor, or interpreting the owner's contract with a contractor.

A design professional who only prepares plans and specifications for an owner is generally considered to be an independent contractor and not an agent for the owner. However, if the design professional engages in certain administrative services on behalf of the owner, he or she may be deemed to be acting on behalf of the owner. If the design professional is the owner's agent, he or she may bind the owner by his or her acts and conduct. The owner is liable for the negligent acts of the design professional if the negligent acts were job-related.

If the design professional's contract with the owner expressly provides that he or she is the agent of the owner, the design professional has express authority to act on behalf of the owner. If the owner's conduct reasonably leads a third party to believe that the design professional is acting on behalf of the owner, the design professional has apparent authority to act on behalf of the owner. The design professional's authority to act on behalf of the owner will be implied if he or she conveys instructions to a contractor, if he or she rejects the work of the contractor, or if he or she approves minor changes to the work. Even if the design professional does not have express, implied, or apparent authority, the owner will be bound by the design professional's acts if the owner ratified the design professional's conduct.

The design professional may have a duty to observe or to inspect a contractor's work. The design professional normally visits the job site in order to keep the owner advised of the progress and the quality of the work. The design professional has a duty to reject work that does not conform to the plans and specifications. However, the design professional is not normally required to make exhaustive or continuous inspections of the contractor's work. Also, the design professional does not have a duty to control the method or procedures of construction, which duties are solely the duties of the contractor.

The design professional may have a duty to approve, certify, or disapprove payments to the contractor. Prior to issuing certificates for payment, the design professional may review the contractor's request for payment and may inspect the job site to ensure that the request for payment is accurate. The design professional then certifies to the owner that the contractor's work has progressed in accordance with the request for payment.

The design professional may also have a duty to interpret the contract between the contractor and the owner or to arbitrate disputes between the owner and the contractor. If the design professional performs such duties, he or she must exercise the duties in accordance with the custom or trade usage of the construction business. He or she must interpret the contract objectively and not subjectively. He or she must also arbitrate the disputes fairly and impartially.