Archive | Advocacy News

Protecting Virginia’s Historic Rehabilitation Tax Credit

On behalf of AIA Virginia, President Nick Vlattas, AIA, attended the Aug. 29 meeting of the Joint Subcommittee to Evaluate Tax Preferences to urge legislators to reject a repeal, sunset or cap to Virginia’s Historic Rehabilitation Tax Credit (HRTC). [Read his public testimony.] He was joined by Vice President of Government Advocacy Tim Colley, AIA, member Kathleen Frazier, AIA, and representatives from dozens of other businesses, homeowners, non-profits, associations, churches, and communities who came from all over the Commonwealth to speak in support of the credit.

During the formal agenda, the committee heard from Kathleen S. Kilpatrick, Hon. AIAVA, who is Curator of the Virginia Capitol & Executive Director of the Virginia Capitol Square Preservation Council. As the director of Virginia Department of Historic Resources (DHR) when the credit was established, she was well prepared to speak about the history and purpose of the program and early amendments.

They also heard an informative report from John Accordino, Ph. D., FAICP, Professor, and Director of VCU’s Center for Urban & Regional Analysis, who presented data on the economic impact of the Virginia HRTC.

Legislative Services staff member, David Rosenberg, gave a summary of other state’s historic tax credit programs.

Julie Langan, from DHR, presented a report on the program itself, calling out a number of successful projects and responding to several inquiries posed during the subcommittee’s meeting in June.

And finally, a staff member from Virginia’s Department of Taxation provided follow-up information to several additional questions that arose during the last meeting.

Unfortunately, the public comment period was limited to 30 minutes, so only a small handful of citizens were able to share their views.

Legislators asked a number of very probing questions, focused on the program’s ROI and the heavy concentration of investment in the Richmond metro area compared to other areas of the state. They also suggested several topics for further study. The subcommittee is reviewing these tax preferences as part of its systematic review of all tax preferences in the Code of Virginia. After its review, the subcommittee will make a recommendation to continue, expand, modify, or eliminate it. Their particularly close scrutiny of the HRTC program (and many others) is likely due to the need to narrow or close a projected 1.5 billion dollar shortfall in the two-year budget.

It is clear we have much more work to do to protect Virginia’s Historic Rehabilitation Tax Credit. Based on their inquiries, we’re working with a coalition to gather data.

Members with insights into how a cap to the credit might impact the program, the profession, or experience working within HTC models in other states (particularly Ohio) are encouraged to contact Rhea George at or (804) 237-1768.

Read the Richmond Times-Dispatch’s analysis for more information (plus a great quote from Kathy Frazier’s remarks before the subcommittee).

AIA Virginia Position
AIA Virginia, a Society of the American Institute of Architects, strongly supports the Virginia’s Historic Rehabilitation Tax Credit as an important tool for economic development and a critical driver in the preservation of Virginia’s rich cultural heritage.

A survey about the HRTC was sent to 2,116 members on Aug. 4, 2016
821 individuals opened the survey message
244 responded

97% support Virginia’s Historic Rehabilitation Tax Credit
(2% have no opinion; >1% do not support)

73% believed that their businesses would be harmed if the credit were eliminated or capped

70% report that they’ve worked on historic tax credit projects


Posted in Advocacy News

Governor McAuliffe Announces Administration Appointments

Commonwealth of Virginia
Office of Governor Terry McAuliffe

July 29, 2016

Office of the Governor
Contact: Christina Nuckols

Secretary of the Commonwealth’s Office
Contact: Denise Burch

Governor McAuliffe Announces Administration Appointments

RICHMOND – Governor Terry McAuliffe announced additional appointments to his Administration today. The appointees will join McAuliffe’s Administration focused on finding common ground with members of both parties on issues that will build a new Virginia economy and create more jobs across the Commonwealth.

Office of the Governor

Robert Mejia, Special Assistant for Intergovernmental Affairs

Robert Mejia has been appointed to the position of Special Assistant for Intergovernmental Affairs. Prior to this position, Robert served as a Governor’s Fellow in the Office of Intergovernmental Affairs in Washington, D.C. Robert graduated with a Bachelor’s of Art in Politics from The Catholic University of America.

Secretariat of Administration

Taylor Melton, Executive Assistant

Taylor Melton has been appointed to the position of Executive Assistant to the Secretary of Administration. Prior to his appointment, Taylor worked for the Secretary of Administration in various capacities, serving first as an intern, then as a Governor’s Fellow, and most recently as a Special Assistant. Taylor was recently named a Community Leader of the Year by Inspire Virginia, a nonpartisan voter registration group, for his work on Virginia High School Student Registration Week. Taylor graduated with a Bachelor’s of Arts in Political Science from Virginia Commonwealth University.

Secretariat of the Commonwealth

Board Appointments

Board for Architects, Professional Engineers, Land Surveyors, Certified Interior Designers and Landscape Architects

  • Caroline Alexander, IIDA of Alexandria, Senior Project Manager, Cushman Wakefield
  • Robert A. Boynton, FAIA* of Richmond, Principal, Boynton Rothschild Rowland Architects PC
  • Carolyn B. Langelotti, PE* of Midlothian, Partner, Austin Brockenbrough & Associates

Board of Counseling

  • Bev-Freda L. Jackson, PhD, MA of Arlington, Program Manager, Office of Planning Policy and Program Support, Child and Family Services Agency, District of Columbia Government
  • Terry R. Tinsley, PhD, LPC, LMFT, NCC, CSOTP of Gainesville, Director of Clinical Services, Youth For Tomorrow

Board of Funeral Directors and Embalmers

  • Mia F. Mimms, FSL, JD, LLM of Richmond, President, Mimms Funeral Home
  • Connie B. Steele, FSL* of Roanoke, Manager, Serenity Funeral Homes and Cremation Service

Board of the Virginia College Building Authority

  • John G. Dane* of Midlothian, Vice President, Regional Manager, Community Banker’s Bank
  • The Honorable C. Evans Poston Jr. of Norfolk, Commissioner of the Revenue, City of Norfolk

Commonwealth Neurotrauma Initiative Trust Fund Advisory Board

  • Raighne C. Delaney, of Alexandria, Shareholder, Bean, Kinney & Korman, P.C.

Local Government Advisory Committee to the Chesapeake Bay Executive Council

  • The Honorable Andria P. McClellan of Norfolk, Superward 6 Councilwoman, City of Norfolk

Milk Commission

  • Patrick H. Crawford* of Virginia Beach, Territory Sales Representative, Dean Foods, Inc.

Virginia Board of Workforce Development

  • Carrie Roth* of Midlothian, Executive Director, Virginia Biotechnology Research Partnership Authority; President & CEO, Virginia Biotechnology Research Park Corp.

Virginia Foundation for the Humanities and Public Policy

  • Edward A. Mullen, Esq.* of Richmond, Partner, Reed Smith LLP

9-1-1 Services Board

  • Terry Ellis of Sutherland, Vice President of Government Operations, Virginia Cable Telecommunications Association
  • Danny W. Garrison* of South Chesterfield, Director of Communications, Richmond Ambulance Authority

*denotes reappointment


Posted in Advocacy News

Historic Rehabilitation Tax Credit Threatened

Virginia’s Historic Rehabilitation Tax Credit (HRTC) program is currently under review by the General Assembly’s Joint Subcommittee to Evaluate Tax Preferences, and we believe it faces a serious threat.

AIA Virginia strongly supports Virginia’s HRTC and has sent a letter to the Chair urging the committee to reject a repeal, sunset or cap to the credit. We’ve been working actively with a coalition of 12 other organizations to educate legislators on the benefits of the program and will have a presence during the next Committee meeting on Aug. 29. We’ll also be sending action alerts directly to AIA members who are the constituents of committee members. If you’d like to take individual action, you can do so by emailing Consider sharing an HRTC success story, how your firm might be impacted by a repeal or limitation of the credit, or use this sample letter.

The credit was created in 1996 and implemented in 1997 as an incentive to catalyze economic development through the rehabilitation and reuse of the Commonwealth’s rich inventory of historic structures. Since its inception, the credit has been widely used as a redevelopment tool, helping revitalize cities, towns and rural communities all across Virginia.

Not only does the HRTC have a proven track record for stimulating economic growth through private investment, it helps to preserve Virginia’s cultural heritage for future generations. It is exactly the kind of market-based incentive needed to leverage private investment in historic properties. Already, nearly $4 billion in private funds have been invested and at least 31,000 jobs have been created in the Commonwealth as a result of this credit.

The credit has statewide impact. Eighty out of 95 counties in Virginia and all 11 metropolitan areas have benefitted from the program through revitalized properties used for a wide variety of purposes. Since its inception, more than 2,375 historic buildings in Virginia have been preserved and put to use. Not only does this mean work for architects and architecture firms, but these projects also generate state and local tax revenue, create jobs, and act as an incredible catalyst for community revitalization.

Other states across the nation look to Virginia as a leader in this arena and the program is working. In 2012, the Joint Legislative Audit and Review Commission’s study on the effectiveness of tax preferences, found that the state tax credit program was only one of two tax preferences that achieves its intended goal.

The HRTC program allows property owners to receive a state tax credit of 25% of eligible expenses for approved rehabilitation work on certified historic structures, provided that the work meets the Secretary of Interior’s Standards for Rehabilitation. The program is managed by Virginia’s Department of Historic Resources.

Posted in Advocacy News, Featured

Building Community in Loudoun County

Alan L. Hansen, FAIA, LEED AP, Director of Architecture at DBI Architects, Inc. in Reston, Virginia, started the Loudoun Design Cabinet as a way to encourage excellence in architecture in Loudoun county. The Design Cabinet is comprised of 15 design professionals, including engineers, architects, planners and designers, who come together in a fusion of creative community problem solving.

For the past 13 years, the Loudoun County Design Cabinet has worked with the Department of Economic Development to resolve community design challenges around Loudoun county. “Loudoun is an exceptional community for business and for living, in part because of the emphasis on and attention to, design excellence,” says Hansen in a recent article in the Loudoun Times-Mirror.

Activities include brainstorming design sessions, design charettes, and an annual design awards program. This year’s “Signatures of Loudoun Design Excellence” awards were given out June 7th during the Board of Supervisors meeting. To view the award-winning projects, click here>>

To read more about the Loudoun County Design Cabinet, click here>>

Posted in Advocacy News, Featured

100% Participation

Damian Seitz, AIA, 2016 President of AIA Hampton Roads, and AIA Virginia director, made an exciting announcement at the June 17th AIA Virginia Board of Directors meeting. 100% of the AIA Hampton Roads board has contributed to the AIA Virginia PAC this year! This is amazing and we are so grateful for the support!

How about your chapter board? We challenge you to get 100% participation from your chapter board by donating at today!

Contribute to the AIA Virginia Political Action Committee


Through the PAC, the membership of AIA Virginia supports candidates who understand the architecture profession. When these candidates win, they bring that understanding to the General Assembly and to your issues. You and your firm benefit.

By speaking with a united voice, architects influence government actions that affect our profession and the quality of life for all Virginians. AIA Virginia uses the collective power of its membership to participate in the legislative and regulatory policy making process.

Through the PAC, the membership of AIA Virginia supports candidates for state office who understand the profession and support its goals.

The AIA Virginia PAC supports candidates without regard to party.


AIA Virginia PAC has options.

• Give online

• Mail your check (payable to AIAVA PAC) to AIA Virginia, 2501 Monument Avenue, Richmond, VA 23220

• Contact Rhea George at (804) 237-1768 to discuss other ways to give or to get involved.

Posted in Advocacy News

Report on State Contracting Released

On June 13, 2016, there was a briefing on the Joint Legislative Audit and Review Commission’s (JLARC) report on the Development and Management of State Contracts. JLARC was directed to evaluate the state’s contracting policies. We watched this study carefully, because recommendations could have come out against Qualifications Based Selection (QBS) or in favor of one of the three procurement methods for capital projects (design-bid-build, design-build, and construction-manager-at-risk) over others. Fortunately, neither of these happened — but we’ll continue to closely monitor how the report’s recommendations get implemented.

Below is a summary of the report and briefing. Download the full report for complete details.

JLARC Briefing

Key Findings: Please note – these findings relate to all state contracting (both goods and services)

  • Little data is available on relevant measures of contract performance;
  • Some state policies can limit agencies ability to pay reasonable prices and avoid poor quality purchases;
  • There is a lack of emphasis on risk management and contract administration in statewide agency policies;
  • Vendors do not have an effective means to report negative contracting experiences.

The report put forward 30 recommendations:

  • Several are related to creating policies and procedures to increase the effectiveness of contract administration, which they identified as a significant weakness;
  • Several are related to improving the quality of state contracts to reduce risk, add performance and quality measures, and include penalties for vendor non-performance;
  • Several are related to developing mechanisms to collect data on contracts, vendor performance, and procurement methods;
  • Several are related to supplier diversity/SWAM — because this is of interest to a number of firms, the recommendations are regarding: identifying a formula for “fair and reasonable” pricing differences, collecting data on contracts to evaluate the 20% rule, prioritizing “small” and “micro” over women- and minority-owned, and electronic notification of renewal;
  • Several are related to developing a mechanism to identify high-risk/high-value contracts and elevating the level of oversight on these contracts;
  • Several were specific to the procurement of IT;
  • And, finally, several were related to improving the complaint process for vendors.

Two recommendations were specific to the industry.


The Department of General Services should modify the Construction and Professional Services Manual to clarify the requirement that vendor experience with project delivery method, such as construction-manager-at-risk or design-build, be considered by state agencies and higher education institutions when qualifying vendors to compete for construction contracts. The policy should state that agencies shall not automatically disqualify vendors during the Request for Qualifications stage of a procurement because of a lack of direct experience with the specific project delivery method to be used for the project.


The Department of General Services (DGS) should broaden its focus, and the focus of its Procurement Management Reviews, toward ensuring agency compliance with state laws and policies regarding the development and administration of contracts and implementation of best practices for all aspects of contracting, including professional services and construction contracts. The department should collaborate with the Auditor of Public Accounts (APA) to ensure that the elements of its reviews, and the review schedule, do not unnecessarily duplicate the work of APA staff.

APPENDIX E analyzes contracting methods for construction projects.

JLARC interviewed staff at four universities and collected data on 28 recent construction projects completed by Virginia Tech, the University of Virginia, William and Mary, Virginia Commonwealth University, Christopher Newport University, James Madison University, and George Mason University in order to examine the advantages and disadvantages of three procurement methods: design-bid-build, design-build, and construction-manager-at-risk.

According to state policy, methods other than design-bid-build are intended for especially costly projects. Guidelines for the use of the construction-manager-at-risk method states that it should be limited to projects valued more than $10 million.

Institutions were generally satisfied with all three procurement methods. All 28 projects analyzed performed differently than originally expected, regardless of contracting method.

  • Cost overruns occurred for all three types of projects, cost overruns as a percent of the original project cost were highest for design-build projects. The dollar value tended to be highest with CM at risk projects.
  • Schedule delays occurred for all three types of projects, the average length of delays was greatest for design-build projects
  • All three categories of projects experienced change orders.

The report asserts that alternative methods may be beneficial for especially complex or time-sensitive construction projects because of the built-in collaboration between the agency, construction manager, and project design team. It also asserts that a dollar threshold is not the most effective criteria for deciding which method to use because a project’s cost does not necessarily reflect the complexity or time-sensitivity of projects.

The report recommends that DGS be directed to periodically evaluate how projects under each method perform in relation to schedule, budget, and specifications, allowing the Department to compile data on construction project performance and contribute to a greater understanding of the advantages and disadvantages of the different methods.


Recommended Legislative Action

  • Develop criteria for identifying high-risk contracts and implement a process to oversee them.
  • Direct DGS and VITA to develop a centralized approach to tracking contract performance.
  • Direct DGS and VITA to develop a comprehensive training program on effective contract administration.

Recommended Executive Action

  • Develop tools and policies that allow agencies to balance cost with the quality of goods and services purchased.
  • Develop mandatory training on effective risk management.
  • Develop guidelines for assigning staff to administer contracts, particularly those that are high risk or high value.
  • Develop guidelines for monitoring vendor performance, reporting performance problems, and using enforcement measures.
  • Improve awareness of the vendor complaint process and make it easier to use.

Posted in Advocacy News

New Overtime Rules

Will Your Firm Be Affected by the New Overtime Rules?


The day has arrived.  After a long wait, on May 17, 2016, the U.S. Department of Labor (DOL) issued its final rule dealing with overtime exemptions under the Fair Labor Standards Act (FLSA).

There were some changes from the DOL’s initial proposed rule, but the outcome and impact on many businesses will largely be the same.  Effective Dec. 1, 2016, the minimum salary threshold to qualify for the FLSA overtime exemptions is increasing from $455/week (approximately $23,660/year) to $913/week (approximately $47,476/year).  Employers may initially be relieved that this figure is not the $50,000+ salary threshold previously suggested by the DOL, but they should be aware that the final rule does retain a controversial concept from the proposed rule.  Specifically, there will be automatic increases to the salary basis requirement every three (3) years, beginning on January 1, 2020.  The increase will be tied to the 40th percentile of full-time salaried workers in the lowest-wage Census region.  The DOL estimates that in 2020, the salary basis requirement will increase to just over $51,000.  The DOL will give employers 150-days’ notice before any automatic increase becomes effective.

Other key points from the new rule include:

  • Increasing the minimum salary threshold to qualify as a “Highly Compensated Employee” (HCE) from $100,000 to $134,000 annually.  Under the automatic increases, the DOL estimates that this HCE salary requirement will be over $147,000 in 2020.
  • The rule allows up to 10% of the salary threshold for non-HCE employees to be met by including non-discretionary bonuses, incentive pay or commissions, if paid at least quarterly.
  • There are no changes to the “Duties Test” for white collar exemptions.

Again, with an effective date of December 1, 2016, employers have just over five (5) months to get their policies and payment systems in order.

The DOL’s summary page can be found here.

The complete final rule can be found here.

Reprinted with permission from Williams Mullen. If you have any questions concerning the requirements of the final rule, you may contact any of the Labor & Employment attorneys at Williams Mullen. 

Here’s an additional article from Architectural Record.

Posted in Advocacy News

Liability for the Project Design

Two Cases in 2015 to Note

By Robert K. Cox
reprinted with permission from Williams Mullen Construction Industry News; Spring 2016 issue

The “Spearin Doctrine” and the implied warranty of project design, contract terms disclaiming the adequacy of the project design and clauses calling for the contractor to review the design for errors and omissions; the common thread is who will be liable for the costs and delay from defective design documents?

If you are an owner, engineer or contractor, you should take note of two rulings in 2015 on the issue of liability for project design: one, a federal court decision from Virginia finding the project owner’s contract terms were insufficient to disclaim the owner’s liability for defective design documents; and the second case, a Pennsylvania state court decision that the project architect could be liable to a project subcontractor for negligently including faulty information in the architect’s design documents.


In Costello Construction Co. of Maryland, Inc. v. City of Charlottesville, 97 F. Supp. 3d 819 (W.D. Va. 2015), the defendant project owner, the City of Charlottesville, had contracted the plaintiff Costello Construction Co. to construct a new fire station for the City. Upon substantially completing construction, the contractor Costello filed a complaint in the U.S. District Court for the Western District of Virginia that included a claim for damages against the City for allegedly providing faulty plans and specifications to bid and construct the fire station. The contractor claimed the City, as the supplier of the design documents, impliedly warranted the adequacy of those design documents under the Spearin Doctrine; and the City breached that warranty by issuing design documents with purported errors and omissions.

The City defended with a motion to dismiss the contractor’s complaint, arguing that the terms of the parties’ contract provided that the construction documents were “complete and sufficient for bidding, negotiating, costing, pricing and construction of the Project,” and that the contractor had agreed to those terms. The City argued further that the contractor did not comply with the contract terms imposing on the contractor a “… continuing duty to review and evaluate the Construction Documents,” and to notify the City of problems the contractor discovered in the construction documents.

In its ruling, the federal court noted that a Virginia state court had already ruled that a public works owner could disclaim the implied warranty of the Spearin Doctrine with express contract language. The contract language addressed in that state court case required the contractor to “verify all … details shown on the drawings” and to “notify [the engineer] of all errors, omissions, conflicts, and discrepancies.”

In the Costello case, however, the federal court ruled the contract language did not amount to an express warranty by which the contractor affirmatively accepted the burden of any defects in the City’s design documents. Consequently, the federal court rejected the City’s reliance on its contract language as a defense. The litigation ultimately settled.

Whether the federal court came to the correct conclusion on the parties’ contract terms can be hotly debated. For this article, the significance is that, while a public works owner can disclaim the implied warranty of design adequacy under the Spearin Doctrine, the disclaiming owner must do so with express contract language that leaves no doubt the risk of design defects is shifted to the construction contractor.


Under current Pennsylvania law, an architect can be liable to a contractor or subcontractor for negligent misrepresentation claims when it is proven that the architect included faulty information in the project’s design documents. This liability is from the 2005 Pennsylvania Supreme Court decision in Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 866 A.2d 270 (2005).

In 2015, an intermediate Pennsylvania appellate court addressed whether there must be an explicit negligent misrepresentation of a specific fact, or whether the design itself is a representation that, if followed, the project could be constructed. In Gongloff Contracting, L.L.C. v. L. Robert Kimball & Associates, Architects and Engineers, Inc., 119 A.3d 1070 (Pa. Super. 2015), the plaintiff structural steel erector, a project subcontractor, sued the defendant architect alleging that the original roof design for the convocation center was inadequate to bear construction and in-situ loads, resulting in significant costs to the steel erector as it attempted to comply with the architect’s design. Ultimately, the architect acknowledged that the as-designed, long span trusses for the roof system were inadequate to accommodate construction loads and changes to the design were issued during construction.

The lower trial court, the initial forum, dismissed the steel erector’s claims against the architect, ruling the steel erector had failed to demonstrate that the architect had expressly or impliedly represented that the structure could safely sustain all required construction and in-situ loads. The intermediate appellate court reversed the ruling. After examining Pennsylvania law, the appellate court wrote:

“The design itself can be construed as a representation by the architect that the plans and specifications, if followed, will result in a successful project. If, however, construction in accordance with the design is either impossible or increases the contractor’s costs beyond those anticipated because of defects or false information included in the design, the specter of liability is raised against the design professional.” 119 A.3d at 1078.

The appellate court cautioned, however, that in order to avoid dismissal, it was not enough to simply claim negligent misrepresentation by faulty design; the steel erector still had to allege facts of some specificity substantiating its claim of faulty design. The court found the steel erector had made sufficient factual allegations and reversed the lower court ruling. The cost of defective design documents can be high, and the delay in correcting them can be lengthy. Consequently, liability for project design errors and omissions will continue to evolve as those who now bear the risk seek to shift that liability, and those who bear the cost and delay seek to assure their recovery.

Posted in Advocacy News

General Assembly Wrap-Up

Dear AIA Virginia Members,

I’m writing with good news about our advocacy efforts!  We chalked up some big wins this year.

Puts contract negotiation in the negotiation stage for public work

WHY IT MATTERS: Firms were increasingly being required by public bodies to accept terms and conditions when submitting responses to RFPs. Often these T&C were uninsurable, but when objections were raised, firms were being ranked lower. Not only does this have a negative impact on QBS, but it puts both the firms and public bodies at risk. Firms were sometimes taking a gamble by accepting the work when they really needed it, and public bodies thought they had coverage where they didn’t.

Amended to protect the Health, Safety and Welfare of the public

WHY IT MATTERS: Inspired by a national movement to reduce the number of licensed professions, this bill didn’t adequately address HSW concerns in its original form. We worked with a number of other professions to amend it to beef up protections for the public.

Increases transparency so we know what A/E services are being sold by state agencies to other state agencies

WHY IT MATTERS: If state agencies are going to compete with private architecture firms, the information ought to be publically available.

This bill would have allowed local public bodies to purchase the intellectual property or other work of a design build team.

Seems ok at first glance, right? But looking deeper, there were no provisions to address liability issues, price negotiations, and a host of other matters. We worked hard with the sponsor to find solutions, but in the end we couldn’t support this legislation — and our voice made a difference. We’ve offered to work with the sponsor to help craft a good piece of legislation to benefit all for the coming session. We’ll keep you posted.

There were many other bills on our radar. Some we monitored, some we requested technical amendments, and some we laid low on and let others do the heavy lifting. All in all, it was a great year in the legislature — and we’re looking forward to another one next year. The work doesn’t end with the close of the session, though. We’re already beginning to strategize for next year and continuing the work with our partners, allies, and opponents to build coalitions and find compromises.

I hope you’ll join me in thanking Kenney Payne, AIA; Lynden Garland, AIA; and Robert Burns, AIA who gave countless hours in support of our efforts. In addition, our friends with ACEC Virginia and Greater Washington, the AIA Virginia Government Affairs Committee, and our legislative counsel with Williams Mullen were invaluable.

As always, if you’d like to get involved email me at or give me a call at (804) 237-1768.

My best,
Rhea George, Managing Director
AIA Virginia

PS: We won’t have these kinds of successes without your support. Give today at

Posted in Advocacy News

One Size Does Not Fit All

It is as if every client an A/E has ever worked for attended the exact same seminar where they were given a “one size fits all” contract that works whether they are buying pencils or hiring an A/E  – all while avoiding or limiting the need to negotiate any of the terms and conditions.

It is a disturbing trend and requires an A/E to do their homework, pay attention, and try to mitigate the potential damage before it can be used against them in a court of law.

We are talking about owner-generated contracts that call you anything but an Architect or Engineer.   They may have called you any of the following:

  • Contractor
  • Consultant
  • Vendor
  • Bidder
  • Supplier
  • Offeror

So what is the harm in calling you a Contractor or another term, as long as you have an agreement, can perform your duties, and get paid?   The potential danger lurks in the rest of the contract where the use of any of these terms carries with it obligations that are not typical duties or responsibilities you have, are required to have, and worst of all – most likely are not covered under your professional liability insurance policy.

For example, if the contract refers to you as a Vendor, there is a good chance you must submit a bid and/or bid bond, provide unit prices, hold your pricing, provide a performance bond, obtain all approvals and permits necessary, submit product data, deliver FOB, install your “product,” agree to a retainage and/or liquidated damages, provide a warranty, guarantee performance, or replace said “product” at no additional cost.  This may be suitable for a copier, but not for professional services.

Perhaps you are called a Contractor, which may suffice during the design portion of your project, but what happens when you go to construction?  How are you differentiated from the Contractor?  When using the same term to describe two different parties – well, let’s just say it can become complicated.

Are you beginning to see the potential problems the use of such terms could cause?  So, what can you do about it?  Consider some of the solutions provided in XL Group’s Contract eGuide for owner-generated contracts:

  1. If your contract uses a term other than architect or engineer (the following example assumes “Contractor” is used), consider adding the following or similar language:

Wherever used herein, the term [Contractor] shall mean [insert your firm name], a professional corporation rendering professional [architectural][engineering] services. The term [Contractor] does not imply that [insert your firm name] is engaged in providing construction contracting work and all of its associated activities, nor is [insert your firm name] responsible in any way for the construction means, methods, procedures, testing, inspections, techniques or sequences nor for any aspect of job site safety. These duties are and shall remain the sole responsibility of the construction General Contractor.[1]

  1. If your contract uses terms such as “certify,” “guarantee,” and/or “warrant,” consider adding the following or similar language:

As used herein, the words certify or certification represents a statement of the [Architect’s][Engineer’s] opinion, based on his or her observation of conditions at that time, to the best of the [Architect’s][Engineer’s] professional knowledge, information and belief at that time. Such statement of opinion does not constitute a warranty or guarantee, either express or implied. It is understood that the [Architect’s][Engineer’s] certification shall not relieve the Owner or the Owner’s contractors of any responsibility or obligation they may have by industry custom or under any contract.[2]

  1. If your contract includes terms normally associated with the Bidding & Negotiation or Procurement Phase (e.g., anything to do with bidding and performance bonds), try to get them all deleted. Explain how your contract should be specific to the services you are performing, and not be a “boiler plate” that includes terms that would only cause confusion should an issue arise.  Failing that, consider adding the following or similar language:

Wherever used herein, terms associated with the actual bidding or procurement of a product and not a service, and terms associated with the actual warranties or guarantees associated with a product and not a service, shall not apply to this Agreement since [insert your firm name] is a professional corporation rendering professional [architectural][engineering] services and does not provide a product that is bid, procured, or warranted.

  1. It is crucial that your legal counsel and insurance agent review any contract, contract terms, and/or insurance coverage that give you concern.

Words to the wise:

Try to avoid language that calls you something you are not.  If it is not possible to change their language, insist on adding this sample language or something similar.

article submitted by Kenneth Payne, Jr., AIA, LEED AP BD+C, Vice President of Quality Control, Risk Management, and Training at Moseley Architects. Contact Kenney at 

[1] XL Group’s Contract eGuide for Design Professionals contract clause, “Contractual Reference to the Consultant.”
[2] XL Group’s Contract eGuide for Design Professionals contract clause, “Definitions.”

Posted in Advocacy News


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Virginia Accord

  • The Virginia Accord

    Bringing together the planning and design disciplines to examine two key themes critical to the future — job creation and environmental sustainability — on Sept. 19-20, 2014 at the Virginia Accord.