The Owners' Manual | Issue 14 | Fall/Winter 2018

If you flip through the agreement that you receive from your client, you may notice that it states we will perform in a manner that is consistent with a “highly sophisticated design professional firm” or we will provide the “highest quality services”. You may think to yourself, that description fits BL and myself perfectly! Naturally, we stand out from all other design firms. Unfortunately, we cannot say this in our contracts. To align our promise to perform with established law, we can agree to an objective standard to exercise that degree of care and skill ordinarily practiced under similar circumstances by design professionals providing similar services. This promise differs from a typical guarantee of a contractor or a provider of a product that the work or product will be free from defects within a one-year period. It is also different than a subjective standard of performance “to the satisfaction of” the client. If we set the bar too high for ourselves and contract for a higher level of care, we risk exposure on many different levels. • With our professional liability coverage : If we agree to a higher standard of care than that which design professionals are normally held to, we risk having our professional liability company not cover us because we have, by contract, assumed additional liability for which we are not normally responsible. • In our payment terms :A client may try to set terms where it can withhold payments for work that it deems deficient or defective. If a payment dispute arises, this makes the client the sole determiner as to whether we deserve payment.This is especially dangerous if we promise perfection or remarkable services. • Breach of contract: Because our designs are unique to the site involved, each project is not tested over and over, as a product is, to ensure it is free from defects. If a problem arises where there is a defect in our work, we should only promise to minimize the consequences. Also, if we promise exceptional work, our client may turn around and demand upgrades or enhancements that go beyond what would typically be expected from us. You may feel sheepish in approaching a client with a marked-up agreement that crosses off superlatives that relate to our work. A little client education, though, can help them understand why we view such promises to be potential deal breakers.

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