If there is anything you should be aware of while working in the A|E industry, is understanding the Standard of Care—what it is, and why it is important.  In simple terms, architects and engineers provide professional services, like lawyers, doctors and accountants.  Their services are not required to be perfect.  Instead, their professional services are measured against others practicing in the same profession, in the same locality and under the same circumstances.  This is called the Standard of Care. 

The importance of understanding this concept stems from the fact that those licensed to practice architecture or engineering, do so by applying their skills and ability to the profession.  It is based upon a learned opinion, and they will apply that skill and ability without neglect of their client, but at no time will that skill and ability imply or warrant a perfect result.  Performing services in accordance with the standard of care determines whether they are performing to a level of legal competence. 

An architect or engineer is not necessarily negligent just because their efforts are unsuccessful or if they make an error that was reasonable under the circumstances.  Architects and engineers must meet two basic criteria: they must deliver the services in their contract, and they must perform those services in accordance with the professional standard of care. The former is fairly straightforward: failure to deliver contractual services is breach of contract. The latter, however, is subject to interpretation.  To determine whether an architect or engineer has been negligent, performance will be measured against what other architects or engineers would typically have done in the same situation. 

Insurers of design professionals and engineers will provide an acceptable standard of care definition:  In providing services under this Agreement, the Consultant shall perform in a manner consistent with the degree of care and skill ordinarily exercised by members of the same profession currently practicing under similar circumstances at the same time and in the same or similar locality.

Below are examples of Standard of Care definitions in industry standard agreements. 

American Institute of Architects: 

The Architect shall perform its services consistent with the professional skill and care ordinarily provided by architects practicing in the same or similar locality under the same or similar circumstances. The Architect shall perform its services as expeditiously as is consistent with such professional skill and care and the orderly progress of the Project.

DBIA:

The “Standard of Care” for all design professional services performed by Design Consultant and its Design Sub-Consultants pursuant to this Agreement shall be limited to the care and skill ordinarily used by members of the design profession practicing under similar conditions at the same time and locality of the Project.

CONCENSUS DOCS 420: 

STANDARD OF CARE Design Professional shall furnish and provide the architectural and engineering Services necessary to design the Project in accordance with Owner’s requirements, as outlined in Owner’s Program and other relevant data defining the Project. The architectural and engineering Services shall be performed in accordance with the standard of professional skill and care required for a project of similar size, location, scope, and complexity.

The definitions above vary based on the authors of the agreement. It is during contract negotiation with the client that particular care is needed to ensure the standard of care is not elevated.  Modifications to these definitions may be required and it is up to the architect or engineer to work with their legal advisors to review and understand what to look for.

Some clients request contractual provisions that require an architect or engineer to perform to the “highest” or “best” standard of care or produce design documents that are “free from defect.”  

These terms are problematic for the following reasons:

• They are inconsistent with the applicable standard of care.

• Professional liability insurance policies do not cover claims and damages if the insured architect or engineer has contractually agreed to an elevated standard of care.

Be aware of documentation included in the contract by reference.  Are marketing proposals utilized?  Do those proposals contain terms that elevate the standard of care?  If so, the standard of care clause in the agreement may need to be modified to account for that potential risk. 

For example: Consultant’s services shall be provided consistent with and limited to the standard of care applicable to such services, which is that Consultant shall provide its services consistent with the professional skill and care ordinarily provided by consultants practicing in the same or similar locality, under the same or similar circumstances.

By stating the professional standard of care, architects and engineers are effectively managing risk and expectations of duties within the degree of care and competence generally expected of a skilled member of the profession.

Want to learn more? Here are some resources!

AIA:  The Standard of Care, Should I Care?

RLB: What is the Standard of Care for an Architect? 

Hoffarch.com: Journal - Volume 28, No. 2 - Standard of Care: Evaluating Professional Conduct

LinkedIn: Architects & Engineers - Contracts (Part 3): Standard of Care and Why You Should Care 

Video by Baker Law, “What is Betterment – The “No Free Lunch” Rule – in Design and Construction,” by Jeremy Baker, 2/26/2021.

NOTE: SDA does not endorse any products or services mentioned, and SDA does not assume responsibility for any circumstances arising out of the interpretation, application, use or misuse of any information presented.  SDA recommends the reader consult the appropriate legal, financial or human resource counsel before implementing information contained herein.