LEGAL COMMENT
This comment is published as a matter of general information
to all W.A.S.B. members. Individual members when confronted with
u matter of the nature discussed in this comment should consult
local school district counsel.
SUPERVISION OF SCHOOL CONSTRUCTION
PROJECTS BY ARCHITECTS AND ENGINEERS
The contract entered into between the school board
and professional architect (engineer) employed to design
and plan a school construction project generally provides
for "responsible supervision" of the construction project
by the architect. Just what are an architect's (engineer's)
duties to responsibly supervise a school construction project.
Section 101.31 (2) (g) of the statutes enacted by the
1965 legislature (Ch. 570 of the 1965 session laws)
defines "'responsible supervision of construction" as:
"A uofessional service as distinguished ~ro.e
suFerintending of construction and means the
performance of such on the site observations as
may be necessary to determine that the construction is in substantial compliance with the approved drawings, plans and specifications" (Emphasis added)
The above statute appears to be a restatement of the
common or nonstatutory law developed by Court decisions
prior to its enactment.
Supervision as Dist./nquished from Superintending
of Construction
The statute distinguishes between responsible supervision of construction and superintending the construction project. "Responsible supervision" to which the
statute refers means that sort of supervision which is
ordinarily rendered bv competent architects and does not
include day-to-day supervision which, although necessary
to performance of the construction project, is customaril i"
conducted by a superintendent of construction or clerk
of the works. Accordingly, responsible supervision, when
undertaken by the architect, is f~r the purpose of seeing
that plans and specifications are substantially complied
with thereby guarding the public against erection of unsafe and unsanitary public buildings. This t.vpe of si, pervision necessarily presupposes that the dav-tc~-day supervision of the sort required by the superintendent of construction has been provided. The architect, as our
Supreme Court stated in l'Vahlstrom vs. Hill 213 1A/is 533
and
"such supervision of construction means inspection from time to time by the architect to see that
his plans and specifications are complied with."
Substantial Compliance with Plans and Specifications
]'he statute places upen the architect (engineer) who
has contracted to supervise construction, the duty to make
such on-the-site inspections as may be necessary to determine that the construction is in substantial compliance
with the plans and specifications, and, as indicated above,
responsible supervision does not pertain to day-to-day construction methods used by the contractor to achieve the
result so long as the final result contemplated by the
plans and specifications is accomplished.
If the work is carried out in substantial compliance
with the plans and specifications, and if the building
or project is completed so as to be safe and sanitary for
public use, then it may be difllcuh to hold an architect
legally responsible for improper or insufficient supervision
when ahernative (but substantially equivalent) materials
not specified in the plans or specifications are used in
construction and when minor construction defects occur
for which the contractor may be responsible. DeSombre
vs. 8ickel 18 Wis 2d 390; l;tante vs. Jacobs 10 Wis 2d
567;
In the Plante case the court held that substantial compliance with plans and specifications is also required
of the construction contractor, not strict compliance with
every detail of the plans and specifications. The court
said that the test was something less than perfection
unless all details of the plans and specifications are made
the essence of the construction contract.
In the cited DeSombre case the owner was unable to
prove damages in an action against the contractor and
architect though some deviations from the plans and
~pecitlcati~ms were shown.
Since the architect and engineer's duty to responsibly
supervise c~mstruetion does not, under s(andard contract
forms now in use, include the duty to superintend construetion on a c~mtinuous day-t~>day basis hut requires
only such ,)n site observations as are necessary to see that
the'pla.s and specifications are substantially (not wholly)
complied with, school boards contemplating'a contract with
an architect c~r engineer should:
1. seek advice of legal counsel as to the terms to be included in the written agreement, and
2. consider whether the architect or engineer should be
retained to superintend the construction on a conlinuous basis and the additional fee if an}, which is
to he pakt for this additional service.
Any agreement requiring the architect to superintend
congtruction should be specifically set furth in the written
cont ract.
is:
" . • . responsible for seeing that the plans and
specifications are carried out, not for the method
by which the final result is achieved unless the
method adopted is one which will not permit of
the result intended"
If the designing architect or engineer is not employed
to SUlyerintend the construction project on a day-to-day
basis, then the school board could well consider employing
another competent experienced pcrscm to perf, rm this
important function cn behalf of the school district.
June
1967
WISCONSIN SCHOOL BOARD NEWS