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In agreeing to perform inspection services for the Owner during the construction phase of a project, the design professional should be on the lookout for contract language wherein the design professional guarantees the performance of the contractor. Standard language in design professionals’ agreements limit on-site observation duties, rejecting any and all responsibilities for construction means, methods, techniques, sequences or procedures, and for acts or omissions of the contractor. The design professional is on-site to represent the Owner and to determine if the work is being performed in accordance with the contract documents.

The Owner may request that the design professional assure or guarantee that the work is being performed in accordance with the contract documents. By accepting such an obligation, the design professional is assuming the liability of the contractor under the contract and subjecting itself to an uninsured risk. By agreeing to assure the contractor’s performance, the design professional provides the Owner with a guarantee. Thereby the Owner may seek recovery of any damages caused by an error or omission of the contractor from the design professional, and not based on any negligence of the design professional, but solely on the design professional’s agreement to assure the contractor’s work.

The professional liability policy excludes coverage for liabilities of this type assumed under contract. Also, the absence of alleged negligence on the part of the design professional in such a claim would prevent coverage under their professional liability policy. A design professional guaranteeing a contractor’s work would be standing in the shoes of the contractor and responsible for construction services, not professional services performed by a design professional. The professional liability policy does not provide coverage for construction services.

The design professional retained by the Owner to provide inspection services during the construction phase of the project should advise the Owner that his inspection services are to determine the general quality and quantity of the contractor’s work as an endeavor to guard the Owner against defects and deficiencies in the work and are not a guarantee or warranty of the work. A reminder to the Owner that any such guarantee or warranty would not be covered under the design professional’s insurance policy, should provide the necessary impetus to have such language removed from the agreement.

Protect yourself from becoming the contractor’s "insurance company" by recognizing the risk of assuring the contractor’s work will conform to the construction documents and negotiating such language out of your agreement with the Owner.