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04/08/2010

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The Owner's representative is not untouchable. They can always be named as a party to the lawsuit which then obligates them to prove they are not liable. (Been there)

In more realistic terms, it could be argued that the OR, in supporting a legitimate issue that the Contractor raises, may be protecting the owner from themselves. The first obligation of an Owner's Representative is to the owner, but that is often best served by being completely fair and honest will all parties.

It depends heavily on the person involved, and their level of expertise in construction. Some less-sophisticated owners will bring on people from within their own ranks (ie, a hospital will have one of their administrators also manage the construction process) and that can present a very difficult situation. A layman often times does not understand the construction process nearly as well as they think that they do. Like the old adage that you can tell a man he is ugly, but you can't tell him that he is a bad driver, you similarly cannot get across to a layman that they don't have a good handle on what is going on without offending him - and once offended, a person is typically much harder to work with. There is also a cultural influence as it relates to construction, and that is the misconception the process must be inherently adversarial. That is, a layman will often think that they are expected - required even -to yell and scream and create problems where none exist in order to prove to their boss that they are doing their job.

That being said, a rational approach to the differing styles of owner's representatives is quite easy to come to, because it is the rational way to deal with any problem on a construction site:

Document everything.

Keep your owner informed as to what is going on in the process.

You may not be able to sue the representative because you have no control over him, but your owner does. If you have informed your owner of what is going on and they do nothing, assuming you've documented that, then you are protected from damages resulting from mismanagement by laying the grounds for claim against your owner.

Any owner in his right mind would remedy the problem as soon as you point it out, so 9 times out of ten your problem is solved. The remaining one time out of ten, you have a bullet-proof case for a delay claim.

I believe the degree of balance depends on how much experience the Rep has had in the role of actually managing the construction process. I'm not saying the experience produces sympathy but practicality.

Owner's Reps are no different from anyone else, some bad some good. It doesn't serve the Owner to have their Representative in a head lock with the GC all the time since nothing will ever get done.
Power should be levied judiciously, nothing replaces knowledge from time in the field and documentation along with keeping ALL comprised of events creates an atmosphere of honesty & integrity which usually makes everyone look good.

As a Certified Commissioning Authority (CxA) we are an owners quality assurance representative and should not have authority over the contractors actions. We verify that the design, submittals, construction and turnover through the first year is meeting the owners requirements. If tehe contractor is not achieving the requirements then the CxA puts this on an issues/benefits log and should NOT be telling the contractor to fix. This should come from the owner. If the CxA is doing this they are not longer representing the owner but are representing themselves and have liability issues. Owners representatives should not be a construction advisor, only a verification mechanism for the owner. No need for balance.

I agree with Pete, experience produces the right balance between being a "contract killer" and being their friend. Fairness is an important soft skill for an OR to possess.

No OR is immune to a lawsuit. A good OR will have the documents necessary to prove their side of the story. I personally have never been sued.

If any of you are interested, I started a group on linked in just for us ORs, it's called "Owner's Representatives" and we have over 100 members in just 1 week. I am allowing only people with actual OR experience, not contractors or designers.

There is a fine line that is too easly crossed by OR's. In my experience most are like project record keeper's. They want all the documentation, qa/qc plans and questions directed at them but are not empowered to direct/answer without checking with owner, architect, engineer, 3 or 4 other consultants and still not giving proper direction. This impacts all parties involved in the project. Then there are OR's whom give direction on changes or questions due to really knowing construction but do not take information upstream to the proper parties and contractors are helped with schedule, changes may not be approved by the owner's. Payment in question.
When dealing with either one of these OR's the contractor's managers must be diligent in documentation and push to get written direction for and from the owner's team.

Being an OR is not a glamorous as it appears.

I act as a OR and believe I am fair and successful. It is not glamorous and not for everyone. I find a lot of people want to become ORs since they have backgrounds in construction projects but don't fully appreciate what the role entails. In addition, I often get called in to take over problem projects, so I get to see what caused the problems. My overriding concerns are always related to scope of the work, cost of the work, schedule, and quality. I always set a goal of achieving 20% negative change orders and finishing early.

With AIA agreements and general conditions in mind, it is important to understand that there are actually two owner representatives on a project.

The first is the person identified in the agreement as the "owner's representative," who is given the full authority (rights and responsibilities) assigned to the owner in the gerneral conditions. This owner representative should not be the architect. If asked to perform this role by the owner, I recommend that architects decline to do so or seek advice from their professional liability insurer before entering any agreement containing such requirements.

The second is the architect, which, as AN owner representative (but not THE owner representative), has limited authority that is described in the general conditions.

Since there is no contractual relationship between the architect and contractor, the contractor's only remedy is through the owner. The owner, in turn, could sue the architect for breach of contract for the architect's failure to perform construction phase services in accordance with the owner-architect agreement.

You don't state what the certification is in your article, but I assume you mean certification of pay applications and/or substantial completion certificates. If denial or delay is based on contractor nonperformance, then the contractor has no recourse. If the architect did not perform the duties assigned to the architect in the timeframes indicated in the contract, then it is an owner breach of contract.

Douglas Wilke PE/RA
I believe in the professionals code of ethics the Professional Engineer and/or the Registered Architect has an oblication to be "Even Handed" in the administration of Construction. Even though he is employed by the owner he should not have a "Bias" that will unequaly address contract documents and correct building practices only in favor of the owner, as unrealistic as this may sound!

Interesting topic, I disagree with David B., I think the architect (not all architects mind you) make great OR’s. I often say to be a good OR you need a degree in architecture or structural engineering, 25 years experience in the field overseeing construction projects and a PhD in psychology.

Other than job site safety issues, an architect is not exposed to any more liability then they already are. In fact, Professional liability carriers agree that errors and omissions are actually reduced when the architect is the OR because problems are discovered in real time with solutions implemented seamlessly into the construction process. The AIA has a document AIA B207-2008 (“On site Project Representation”) with completely works with all the O/A/C documents.

My error, I was referring to Ronald G.'s post not David B's.

As a former executive with and ENR Top 5 CM and now having my own firm as OR, I find that having the point of view of the contractor much more beneficial than that of the A/E. By far, financial and schedule issues are much more easily avoided by understanding the working relationships of the contractor...as they are tasked with managing/spending the bulk of the $$ on the project. This being said, the OR's role is to see that the project is built equitably for all, while maintaining that the owner gets what he is paying for...no more and no less...I would agree that it is not as "glamourous" as some may think, although I learn a great deal on each project. For instance, on a current project ($85M international project). I have been involved with the owner financing side of things, being able to bring together the construction/design aspects with the short term equity/debt and O&M aspects of the project.

It's a great way to be involved in the construction, without alot of the risk/reward aspects of the CM/GC side.

Can someone succinctly define for me the differences between Owners Rep, CM and PM?

Could you please tell me what two recent cases you are refering to? Thanks for this very helpful article.

I have been working on the contractor side for more then 20+ years(Very Large Commercial Construction). Due to the local monopoly of general contracting i am persueing persueing self- employment, as an owners rep, is there an instituion that certifies or makes recommendations on credentials for owners representatives.

Hello,
I am a designer looking for an owners rep in the Fort Lauderdale area for my client.
If you can recommend someone in the area, I would really appreciated it.
The project is commercial- office building.

Thank you,

Olga Markoff

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