Architect May Be Final Judge On Appearance Issues
Under Article 2.2.11 of the American Institute of Architects general conditions commonly used in construction contracts, the architect's determination of the artistic effect of the work is final and binding on the parties (owner and contractor) if consistent with the contract documents. Essentially, this means that the architect has the last word about the aesthetic appearance of any part of the work on the project.
Under the same general conditions, the architect's decisions as to all other matters may be appealed through the arbitration process. Therefore, unless that provision is amended or deleted, the owner and contractor agree that the architect will be the final judge of the appearance of the work.
Difficulties over this provision may occur in instances where either the owner or contractor disagrees with the architect's approval or rejection of appearances. If, for example, the architect is dissatisfied with the appearance of a masonry wall he might direct that it be entirely removed and replaced irrespective of the expense involved and of the fact that the wall is otherwise structurally and functionally sound. Unless that decision is contrary to provisions of the contract documents, the wall goes and the contractor or masonry subcontractor would bear the expense of removal and replacement. They may also risk liabilities for resulting de lays.
The majority of court decisions involving enforcement of the artistic effect provision uphold its validity. Courts generally rule that if the parties agreed to be bound by the architect's decision, they are bound.
Some Exception To Architect's Final Authority
The only exception recognized by these courts is where the architect's determination is fraudulent, arbitrary or capricious. For example, if the architect rejects a masonry wall because of a personal vendetta against the masonry contractor or if other architects in the same community unanimously agree that the wall was aesthetically consistent with the contract documents, courts or arbitration panels may decline to enforce the architect's rejection. In that instance, the cost of removal and replacement may have to be shouldered by the architect or the owner.
Court Support For Finality Of Decision
Years ago, the Colorado Supreme Court ruled that if the parties, by contract, had agreed to make someone a final judge of a particular dispute, they are bound by that person's decision, absent fraud, arbitrariness or capriciousness. That case may be called the "pea case" because it involved a contract between a canning company and a pea farmer. The contract there required that the canning company's superintendent determine the fitness of peas grown by the farmer for canning. The superintendent rejected the farmer's peas and he got-well-he went to court. The result was that the canning company won the case and the farmer had to peddle his peas elsewhere.
The cautious contractor seeking to avoid problems under this clause may be well-advised to provide samples for architect approval and retain those samples to avoid later disputes. Otherwise, the contractor may request artistic approval by the architect before completing the particular portion of the work. Owners may likewise experience difficulties with the aesthetic effect clause if they are not satisfied with appearances but their architects are.
Sophisticated architects are not likely to be unreasonable in their approach to the artistic effect question. They risk the possibility that a court may decide that their decision was fraudulent, arbitrary or grossly unreasonable. In that event, the expenses of removal and replacement may come out of their pockets.
The lessons to be learned from this discussion are: (1) parties adopting the AIA General Conditions should be aware of the existence of the artistic effect clause and (2) those same parties should not sow bad peas.