Certifying As-built or Record Drawings

Monday, February 12, 2007

Architects should use caution when giving record drawings to clients and when creating “as-built” drawings. Examples of provisional language that might be used to mitigate the risk involved with “as- built” drawings are included.
“AS-BUILT” VERSUS “RECORD DRAWINGS”
From time to time, a client may ask the design team to modify construction documents—plans and specifications—to reflect the condition of the building “as-built.” An architect assumes a substantial risk in preparing such “as-built” documents.

CONSULT YOUR ATTORNEY
The information herein should not be regarded as a substitute for legal advice. Readers are strongly advised to consult an attorney for advice regarding any matter related to contract provisions.

SUMMARY
Architects should use caution when giving record drawings to clients and when creating “as-built” drawings. Examples of provisional language that might be used to mitigate the risk involved with “as- built” drawings are included.
“AS-BUILT” VERSUS “RECORD DRAWINGS”
From time to time, a client may ask the design team to modify construction documents—plans and specifications—to reflect the condition of the building “as-built.” An architect assumes a substantial risk in preparing such “as-built” documents. Subsequent owners of the property have a right to rely on the information in a record document whether or not they were properly advised of the understanding between the original owner and the architect regarding the document’s completeness and accuracy.
The term “as-built drawing” logically can be inferred to mean that the document depicts the actual physical condition of the constructed facility. The phrase “record drawing” is a more accurate term for post-construction documents because there is no such thing as an “as-built” drawing; drawings intended to document construction are based largely on information supplied by the contractor and others upon completion of the work and only partly on the architect’s observation and documentation of the actual construction.
When record drawings are compiled for a client, they are intended to conform only to the information furnished by the contractor to the architect and thus only show the reported location of the actual work.

MATCH RISK AND RESPONSIBILITY
Because record drawings are based to a large extent on information provided by others, and finish materials conceal much of the information depicted, it is not reasonable to expect an architect to verify and certify the information the drawings contain. To do so, the architect either would have to observe construction continuously, full-time, throughout the construction phase or perform destructive investigations and testing after completion. The cost of such services would be prohibitive—no client would agree to pay for them. Therefore, it is neither practical nor ethical for an architect to attest to the accuracy of record documents or the accuracy of future design documents prepared on the basis of the information they contain.
The client may want the construction contractor, who is responsible for the information, to certify its appropriate level of accuracy. Unless the architect is the leader of a design-build venture, such verification cannot be the architect’s duty, and therefore the accuracy of the documents should not be the architect’s risk.

PRUDENT CONTRACT PROVISIONS
To help minimize the likelihood of a misunderstanding or future claim concerning record documents, it may be useful to insert into the owner-architect agreement (or to use as the basis of a separate agreement for additional services to compile record documents) a provision that acknowledges the true nature of record documents. Such a provision might read as follows:
Upon completion of the work, the Architect shall compile for and deliver to the Owner a set of record documents conforming to information furnished to the Architect by construction contractors. This set of documents shall consist of record specifications and record drawings showing the reported location of work. Since record drawings are based on information provided by others, the Architect shall have no responsibility for the accuracy of the information contained in such record documents.


INDEMNIFICATION: PARTIAL PROTECTION
If a client demands a set of “as-built” documents
during initial contract negotiations, or later as an
additional service, the architect should consider
negotiating a provision in the agreement with the
client stating that the client will defend the architect
against any claims that are due to a mistake in the
information the construction contractor has given the
architect. Such a provision also should indemnify the
architect for any costs, losses, or damages caused
by such claims. The architect should be mindful,
however, that an agreement by the owner to defend
and indemnify the architect against claims by third
parties is only as good as the client’s continued
existence as a legal entity with sufficient financial
means to satisfy any claim or judgment and the cost
of damages incurred by the architect.

PUT OTHERS ON NOTICE
To help guard against the risk posed by the use of
record documents by third parties such as
subsequent owners, it would be prudent to include
on every page of record specifications or drawings a
disclaimer concerning the limits of accuracy of the
documents. Such a disclaimer might read as follows:
This record drawing [or record specification] has
been prepared, in part, based upon information
furnished by others. While this information is
believed to be reliable, the Architect assumes no
responsibility for the accuracy of this record drawing
[or record specification] or for any errors or
omissions that may have been incorporated into it as
a result of incorrect information provided to the
Architect. Those relying on this record document are
advised to obtain independent verification of its
accuracy.
While the term “record drawings” is preferred to the
older term—“as-built” documents—use of the older,
less accurate term is still common. If the term cannot
be avoided, it should be explicitly defined as noted
above to refer to documents prepared by the
architect based on information received from others.

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