By: James W. Walker, Esq.
No design professional is perfect all the time and no set of construction documents is 100% “complete.” Often omitted items are caught and corrected before any harm occurs. Sometimes omissions from construction documents do cause the owner to spend “extra” money or cause the contractor to lose time, or both. What is the design professional’s monetary responsibility?
In most jurisdictions, the standard of care for design professionals is to perform services with the same degree of care and skill as “those ordinarily skilled in the business,” i.e., your contemporaries. Unless the contract says otherwise (and it shouldn’t!), the architect does not promise a perfect plan. The cases emphasize that the owner does not ordinarily bargain for infallibility in the performance of design services.
So, this begs an interesting question: When something that should be in the drawings is omitted, what is the design professional’s monetary responsibility? Here are some points to keep in mind when the owner asks you for money to purchase and install an omitted element of construction:
- The “Betterment” principle. Suppose the CD’s show a light fixture but omit wiring and a switch. The contractor’s price does not include the cost of the wiring, the switch or the labor to install either. Naturally, the Owner has always wanted a switch, so the contractor issues a change order to install the switch and wire it to the light. Should the design professional pay 100% of the change order? Of course not! The Owner received something of value in the change order — a switch and wiring – that was not included in the GC’s bid. Had the plans included these items, the bid would have been correspondingly higher, and the Owner would have paid more. Should the design professional pay for any of the change order? That’s a bit more complicated …
- The “Out-of-Sequence” principle. Suppose in our example the omission of a switch is not discovered until after the electrician has demobilized following rough-in and drywall has been installed. Now the work required to install and wire the switch includes remobilizing the electrician, tearing out and replacing some drywall. The cost of the switch and wiring have not changed, so the Owner still pays for that, but labor and material costs are higher now because the work is done out of sequence. The Owner gets no value from that portion of the change that is the added cost of out of sequence work, so that portion of the change order is the design professional’s responsibility, unless …
- The “You Didn’t Bargain for Perfection” principle. Suppose in our example the change order for the “switch and wire” job is $5000 and of that, $2500 represents the out of sequence cost. Suppose also that the GMP to construct the project is $5 million. Whether we look at the total cost of the change or just the out of sequence added cost, this is a miniscule fraction of the job cost and should be within the expected range of added costs given the less than perfect standard, unless …
- The “Death by a Thousand Cuts” scenario. Suppose in our example, the switch and wiring change order is one of 315 distinct change orders on the job related to omissions from the plans with an aggregate total cost of $300,000 and aggregate “out of sequence” costs of $200,000. Now the added costs are a more sizeable percentage of total job costs – 4%to 6% depending on what counts. Suppose the industry’s track record shows that, on average, jobs of this type and delivery method typically experience change orders in the range of 2% to 3% of the cost of construction. Does that provide an allowance of sorts? Does the design professional pay for all errors and omissions from dollar one, or just for the compensable costs in excess of the tolerance threshold. The case law is clear as mud on this point, but your contract needn’t be.
- How about Changes Originating from the Owner or the Authority Having Jurisdiction? Suppose in our example 212 of the 315 “omission” change orders are either Owner initiated or required by the AHJ. Does that mean the design professional can disregard those costs when determining whether the level of imperfection in his services is tolerable? With respect to Owner initiated changes, the answer should be yes, but again there is very little case law backing this up. With respect to AHJ related changes, the picture is even murkier. There is certainly an expectation that the design professional is well versed in code requirements and preferences in the jurisdictions in which he practices, but every design professional knows that sometimes there is just no predicting who will review the plans or what will be required. What if the design professional took some chances on what would get through plan review in order to save the Owner money if successful? Again, muddy. Again, these things can be addressed in your contract.
- What about Fast track or Design-Build projects? Suppose in our example the project was fast tracked, or design-build. Does that affect the tolerable error rate? The answer is definitively … maybe! The notion of a financial error rate reflecting the expected level of imperfection in design services is not well developed in the courts. However, there is no reason the chosen style of project delivery may also not have a higher or lower error rate associated with it. Like so many things in this area, it depends on the industry’s experience, and data of this sort is scarce. It is certainly worth considering the complexity and speed of the project when assessing the tolerance for imperfection.
Practice Pointers
- Consider including terms in your contract with the owner that specifically address the issues described above so that you aren’t left guessing what your exposure might be.
- As with most relationships in life, effective communication from the outset helps. Be honest with your client about the fact that, as human beings, design professionals are allowed to be imperfect and, most importantly, the effort to be as close to perfect as possible adds huge costs to design services. One way design services remain affordable is not having senior principles quadruple check every detail on every sheet. While such a practice might cut down on errors, it is expensive.
- Remind your client that you are not a contractor; you are a design professional. The services of each are priced and performed in very different ways. Encourage the Owner to budget for changes or include contingencies.
- Stay closely involved in the change order process. Keep a record of the genesis of each change and recommend/require the contractor to provide back up. Do not let the Owner just roll over on changes that are not really changes just to keep the job moving. Remember, it is neither an error nor an omission if the item that is the subject of a change order was reasonably inferable from the plans and specs. Our light switch example could fall into this category.
- If you discover a mistake, act promptly! Mistakes only get more expensive as construction proceeds, while a mistake corrected immediately after bid negotiation usually has no cost for which the design professional would be responsible.
Check, Please… was originally published November 14, 2025 by O’Hagan Myer Design Professionals Newsletter. https://ohaganmeyer.com/2025/11/14/design-professionals-newsletter-4th-edition/ . Shared with permission.
James W. Walker is an AV® rated trial lawyer who has tried over two hundred civil cases to verdict in the federal and state courts in Virginia and the District of Columbia. Mr. Walker’s practice focuses on complex and high stakes civil litigation, including defense of professional malpractice lawsuits against design professionals, accountants and lawyers, as well as construction defects, business torts, contract disputes, product liability, toxic torts, and catastrophic injury/wrongful death matters. Mr. Walker’s practice also includes representation of regulated professionals before licensing and disciplinary boards, in contract negotiations, risk management counseling, and frequent seminars and classes to regulated professionals regarding the risk management and the intersection of the law, insurance coverage, and professional services.
Mr. Walker is admitted in the state and federal courts in Virginia and the District of Columbia. He is an active member of the Virginia State Bar, The District of Columbia Bar Association, The Virginia Association of Defense Attorneys, and the Defense Research Institute.