Architects & Engineers – Unauthorized Changes to Plans

 

By, Samuel J. Muir*

I. What’s at stake?
Some states recognize the potential problems of changes to design plans without the authorization of the design professional. In those states, there are statutes that relieve the design professional of liability for damages arising from such unauthorized changes.

The potential sources of such unauthorized changes to your plans are many. The client may change the documents, or may simply direct changes to the project while in the field. Similarly, the
contractor may decide to make changes on the jobsite without your or the client’s knowledge. Or, a governing agency or building department may insist changes be made. And the more complicated the project, the greater the potential problems arising from such unauthorized changes. For instance, a
seemingly simple change by a contractor from rolled bolts to cut bolts may completely change a structural calculation if the bolts are numerous enough and important enough to the project.

Statutory protection of design professionals for unauthorized changes is, however, the exception rather than the rule. Without such a statute, or a contract provision that specifically address
this circumstance, you may be required to, at a minimum defend, yourself against charges for losses
that were caused by someone changing your plans without your knowledge or authorization. Worse, you
may be held responsible for those unauthorized changes.

II. Key issues
The key issues related to unauthorized changes to your design plans are self evident. Someone changes your plans without your knowledge and that change subsequently leads to damages to the
client or a third party. As the lead design professional on the project, you can almost guarantee that you will be invited into the conversation about the cause of the damage and be named in any
claim.

If you are not providing construction phase services on a project, the risks associated with unauthorized changes only increase. If the client brings another design professional on for the
construction phase, you can almost guarantee there will be some form of change to your original
plans. In such an event, you can also be assured that if there is a problem with the revised
design, the parties involved in the construction will point to problems with your original designs.

As a design professional, you own the copyright to your plans. As such, you have the exclusive
right to make modifications to your design or to create other versions – called “derivative works” in copyright parlance. Somebody creating a derivative work not only exposes you to liability, but may also violate your copyright and take potential
business and profits from you. Risk Management PLUS+ Online®

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III. Negotiating points
The simplest method to avoid the risks associated with unauthorized changes to your plans is to
include a provision which expressly absolves you of liability for any damages that result from changes to your plans that were not authorized by you in writing. The “in writing” requirement is
very important. Anyone who has been around construction for a period of time has seen how verbal agreements become unclear or forgotten when a potential claim situation arises.

Any provision that absolves you of such liability should contemplate all of the instruments of service you may create including plans, reports, specifications, certifications and change orders.
Also make sure that your provision applies to and lists all of the project participants who may potentially change your plans: the client, contractor, subcontractors, inspectors, governing
agencies, and/or the client’s other consultants.

IV. Risk transfer considerations
Indemnities. Be aware that the potential damages due to unauthorized changes to your plans can
affect more than just the client who hired you. Therefore, your clause regarding unauthorized
changes to plans should include an indemnity
in your favor for any damages, claims, etc. associated with such changes. Hopefully, the party or parties that are giving you an indemnity such as this will actually be around long enough for you
to enforce it should a claim arise well after the project is completed.

Copyrights. To protect the copyright issue addressed above, your contract should indicate that you are the author of your instruments of service and that you retain all rights, including copyrights.
More and more clients (especially developers and public agencies) are requesting that the design professional assign its copyright to the project owner. If you are faced with one of these demands,
make sure that you have a release and an indemnity to protect you from any use of your documents.
After all, if you give up the copyright, the owner can take your plans and reuse them wherever and whenever they want and with the help of any other design professional or contractor.

If you have specific concerns about this issue, consult an attorney that is familiar with the various statutes that pertain to design professionals in your state and with copyright issues.

* Samuel J. Muir is a 1979 graduate of Loyola Law School. He is currently the managing partner of
Collins, Collins, Muir & Stewart, LLP with offices located in South Pasadena and Newport Beach, California. Mr. Muir specializes in the representation of design professionals. His representation
of design professionals encompasses all aspects of their business, including corporate issues, licensing concerns, contract negotiations, insurance considerations and representation in
lawsuits.

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