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Part 1 – Avoiding Unnecessary Owner/Developer Liability – The Role of the Owner’s Representative

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During construction, walking the line between ensuring the Owner’s best interests are met  and allowing the construction professionals – the architects, engineers, general contractors, subcontractors, planning consultants – to do their job can be a tightrope act for any Owner’s Representative in a construction project.  After all, an experienced OR may be tasked with spearheading almost every aspect of the development process, from property acquisition and approvals through construction to marketing and sales. However, when it comes to actual design and construction, it is important that an OR know where his/her role ends and the roles and responsibility of those construction professionals begins.

The River Should be Wide, Not Necessarily Deep

Because the OR may be involved in so many different aspects of a construction project, the highest and best use of the OR should be to decide what is needed to get the project moving and and then get those balls rolling.  Haven’t acquired the property?  The OR can get the agents, planners and consultants necessary to purchase the property and garner appropriate governmental approvals.  Is there need for design?  A good OR can find or may have recommendations for the necessary architects and engineers that can
capture the Owner’s vision.  Once the project is ready for construction, the OR can act as the liason between the General Contractor and the Owner on budgetary issues and construction updates and should have a firm understanding of the construction budget and schedule.  During construction, the OR should schedule and be involved in weekly construction meetings with the Owner and General Contractor to discuss progress, budget and any issues that need to be addressed.  However, Owners and their representatives should take care not to over-involve themselves in the means and methods of construction.  Doing so opens the Owner to potential liability in a construction defect action for their involvement in decisions that unwittingly resulted in problems on site.

Knowing Your Place

The General Contractor is responsible for means and methods of construction, as well as supervising the work of its subcontractors.  Likewise, each architect, engineer and subcontractor is responsible for creating a product that is code compliant and meets the standard in their industry for design or construction.  By inserting himself into the design process or directing construction means and methods, the OR may create Owner liability for any future design or construction defects discovered.  To avoid this potential liability, a more “hands-off” approach by the OR is advisable and the OR’s focus should turn to vision and budget.  Does the design reflect the Owner’s vision?  If so, engineering and architectural details are the purview of the designers.  Consistency or inconsistency between structural and architectural drawings should be determined and resolved by the designers and the General Contractor.  Is construction on time and within budget?  If so, means and methods are for the construction professionals and ensuring compliance with the plans and specifications is the responsibility of the General Contractor.  As an OR, your river should be wide, not necessarily deep.

Stay Tuned for Part 2 – Avoiding Unnecessary Owner/Developer Liability – Value Engineering and the Owner’s Representative