The duty of a design firm is to design in compliance with codes, standards, laws, and regulations that are published and in effect at the time a design firm provides design services. Regardless of whether a contract includes a compliance obligation, the design firm is liable if they do not design a project to conform to the codes and standards as reasonably interpreted by a jurisdiction to apply to the specific project. While failure to design to the standards set by local building codes or applicable national regulations is usually negligence per se (or evidence of negligence), being unable to meet a contractual obligation to design to every code, even if conflicts are apparent, could result in a breach of contract claim.
A reasonable contractual requirement is that the design firm will review the program and other information furnished by the client and review laws, codes, and regulations applicable to the design firm’s services. Anything beyond this is beyond the standard of care for professional services and beyond the scope of professional liability insurance coverage.
There are thousands of laws, codes, regulations, and standards that relate to design and construction; all are subject to change, inconsistency, and interpretation. A design firm is in the position of using care and judgment to determine the applicability of the conflicting laws to the unique design parameters of the project. Sometimes, however, the contract contains absolute language that puts the design firm in the untenable position of needing to comply with differing requirements, or in a situation in which, no matter how reasonable the professional services may be, the contract extends beyond professional services that are reasonable and insurable.
While it is the duty of design firms to design to laws, regulations, and client-mandated standards that are in place at the time of the effective date of the client-design professional agreement, changes after the effective date of the agreement and during the performance of services may be the basis for contract modifications. Such a redesign should be an additional service requiring authorization in advance when the services are necessitated by the enactment or review of codes, laws, or regulations, or by modifications to official interpretations.
Even without any specific contractual requirements, design firms need to be consistent with sound professional practices. A design must incorporate those laws, regulations, codes, and standards that are applicable at the time the design firm provides services. Although it is impossible to design in compliance with every law, rule, regulation, ordinance, code, or standard that might affect the design of a project, a design firm does have a duty to design in compliance with any identified as being applicable to the project. The key is that the determination be made during the design stage; it is appropriate to contractually decide how to handle new laws, reinterpreted codes, or other changed circumstances that occur after design.
Design firms have a duty to be aware of applicable codes, standards, laws, and regulations while providing their services. However, the client should not expect the design firm to remove the client’s risks so that after design services are completed, such as during the construction process, some applicable law may be changed and may require a positive decision on the part of the client to bring a facility into compliance with the change. If applicable laws, regulations, codes, or standards change, and the design firm becomes aware of such change, the firm has a duty to inform the client. If the contract for professional services does not include the services necessary to accommodate the impact of such a change, the client and design firm should restructure the service agreement to allow the design firm to meet the client’s needs.