Nov 15, 2016

What's Needed for Close-out of Construction Projects?

The substantial completion and close-out of the construction of a building can be an exciting time for all parties involved with the design and construction of the project. However, the project’s owner and the design professionals must plan and agree, well in advance of the building’s completion, which party is responsible for providing periodic observation of the construction of the structure regarding the building’s compliance with the life safety standards and regulations stipulated in the plans and specifications and previously approved by the fire marshal.

The fire and life safety code provides for certain building requirements for egress and features of fire protection. The certificate of completion issued by the state of Louisiana, Office of State Fire Marshal (the “Fire Marshal Certificate”) requires that the architect, engineer or owner certify under the penalty of perjury that the construction of the building was periodically observed by them or their employees and that the building was completed in accordance with the life safety provisions in the plans and specifications reviewed by the fire marshal. A licensed architect or engineer must sign the certificate when the building is of significant size or complexity, with limited exceptions for exemptions permitting the owner to sign the certificate for single-family houses, farm buildings and other structures of limited scope. Therefore, before construction begins on the building, an owner should consider the scope and extent of observation and construction administration services it needs to be performed by design professionals on the project.

Problems with the Fire Marshal Certificate may arise when an owner requests that the architect or engineer sign the certificate even if the architect or engineer was not present on-site during the construction of the building.  Often, architects and engineers provide only limited design services for a construction project, which could entail simply furnishing a stamped set of plans and specifications for a project. The owner then takes the plans to a contractor to construct the building. In these cases, the design professional who prepared the plans is not typically involved with the construction administration and observation of the project. Design professionals with this limited scope of work should be aware that an owner’s request for the design professional to sign the Fire Marshal Certificate may be outside of the scope of work originally agreed to by the parties.

An owner of a building should not demand or expect its design professional to sign the certificate when the owner is not paying the design professional to provide observations or construction administration services for the project. The best practice is to have the owner and design professional execute a written contract before the design professional begins performance of his or her design services. The written contract should clearly define the design professional’s responsibilities on the project. If the owner and design professional agree that the design professional will perform periodic observation to determine, to the best of his knowledge, information, and belief that the building complies with the fire and life safety code, the contract should specify this obligation and the design professional should be paid accordingly for this service. If the design professional who prepares the plans does not provide any construction administration or observation services, the owner should contract with another licensed architect or engineer to provide periodic observations in order to comply with the requirements of the Fire Marshal Certificate.

On projects of significant size or complexity, the owner and design professionals should consult with an attorney regarding the various responsibilities and obligations of the parties on the project to clearly express the responsibilities and obligations of the parties in a written agreement. This advanced planning is crucial to avoiding any impediments to the efficient close-out of the construction project.

Brian S. Schaps is an associate of specializing in construction litigation, including architect and engineer liability and construction defect.