In Oregon, as in most states, all drawings and specifications intended for use as construction documents or permit submittals must bear the seal and signature of a registered architect or engineer. By placing the seal on these documents, the design professional certifies that he or she has exercised professional judgment in making decisions as to all matters contained within the documents and that he or she prepared them or directly controlled and supervised their preparation. A design professional who has applied the professional seal to any document cannot later deny responsibility for any part of the work under the seal.
Recently, an Oregon architect discovered how burdensome this can be. The architect was commissioned to design an ice skating facility which required special floor coverings capable of withstanding the constant traffic of skate- wearing users. The architect had no experience with these unique conditions and would normally engage a consultant for this part of the work. Instead, the owner engaged its own ice rink expert to recommend the appropriate flooring materials. The owner then directed the architect to incorporate the expert's recommendations into the construction documents. The architect complied and applied his seal to the final drawings as required by law. The contractor provided and installed the specified products.
Shortly after the facility was opened, the special floor coverings deteriorated and failed. The owner determined that the floor coverings specified in the construction documents were not suited to the task and sued the consultant and the architect for the cost to remove and replace the coverings with appropriate materials. Although the architect had played no part in their selection, he could not avoid responsibility for the choice of materials because he had sealed the documents. This case was settled and the architect escaped liability, but not without incurring defense costs on behalf of himself and his partners. This architect's case highlights the importance of carefully considering each application of the professional seal.
This architect could have avoided inclusion in the owner's claim had he followed some basic rules:
Although much of the law governing architects' and engineers' obligation to seal documents is similar, the scope is slightly different. Architects are required to seal only their working drawings and specifications. Engineers (as well as surveyors and landscape architects) must seal and sign all documents prepared in their professional practice. By definition this includes consultation, investigation, evaluation, and planning work as well as construction documents. Of course, work performed by an architect or engineer, under the supervision of another licensed individual, is exempt from this requirement.
With respect to the architect's obligation to seal and sign certain documents, a discrepancy between Oregon legislation and the rules promulgated by the Board of Architect Examiners presents a dilemma for architects working on exempt projects. Oregon statutes require an architect to stamp and sign documents prepared "in the practice of architecture" only. Exempt projects, including certain residential, agricultural, and small structures, are specifically excluded from "the practice of architecture." The Board of Examiners' regulations ignore the exemption causing registered architects to risk Board enforcement proceedings if they fail to verify such documents.
The nature of a design professional's certification can cause other dilemmas for architects, engineers, and their clients. For instance, if the client terminates the professional before the work is complete, or if a design professional otherwise fails to complete his or her commission, the client faces the prospect of commissioning and paying for the work again. If a responsible design professional leaves the employment of the engineering or architecture firm before the work is done, the firm may lose the commission or be forced to reperform the work. Since the law makes no provision for vouching, checking, or otherwise certifying work performed by others, there is no clearly legal way to finish an incomplete project.
Finally, a client may engage a design professional to modify drawings and specifications that were produced and sealed by another. In such cases, the design professional should take care to avoid certifying the original author's work. Instead, he or she should produce modifications and addenda that are clearly separate from the original work and should certify the work only to the extent of the changes. A design professional should always avoid placing his or her seal on revised drawings prepared by others since it probably violates the law and may create new liability for the original work.
All in all, the requirement of a professional seal ensures that plans and specifications, and other engineering work, are given full scrutiny and attention by qualified professionals. It protects the public from the practice of "rubber-stamping" documents which might be prepared by unqualified and uncertified persons. With these benefits came the side effects of complications and traps for practicing professionals. Failure to comply may subject an architect or engineer to significant civil liability, as well as penalties including fines and suspension. To avoid jeopardizing his or her professional practice, a registered architect or engineers must always exercise care and discretion in the performance of services and should never seal any design document for which he or she is not prepared to be completely responsible.
John H. Baker, is a shareholder in Tarlow, Jordan & Schroder, an Oregon law firm with practice concentrations in Dirt Law - construction, real estate, land development, environmental, creditor' rights, business, and employment and law for business, design and construction companies. Mr. Baker can be reached by calling 1-800-338-2991.
The information in this and all other RISK Administration and Management Company articles is intended for information purposes only and does not constitute legal advice. For legal advice and assistance, please contact competent counsel in the jurisdiction of your professional practice.