1. Standard of Professional Conduct
Donohue & Associates (“Consultant”) shall perform its services in a professional, objective, independent, and ethical manner, exercising the degree of care, skill, diligence, and professional judgment ordinarily exercised by qualified construction and project management consultants performing similar services under similar circumstances.
Consultant shall endeavor to perform its services consistent with the applicable contract documents, approved plans and specifications, applicable laws and building codes, manufacturers’ published installation requirements and technical instructions, recognized industry standards, and generally accepted construction and project management practices, as applicable to Consultant’s scope of services.
2. Independent Professional Judgment
Consultant is retained to provide independent professional advice, observations, evaluations, recommendations, and management services. Nothing in this Agreement shall require Consultant to alter, suppress, withhold, misrepresent, or compromise its professional opinions, findings, observations, or recommendations at the request of the Client, contractor, subcontractor, supplier, design professional, project manager, or any other person or entity.
Consultant shall not be required to approve, endorse, recommend, certify, or otherwise represent as acceptable any work, material, installation, procedure, condition, documentation, or course of action that Consultant reasonably believes is materially inconsistent with applicable project requirements, manufacturers’ published requirements, applicable codes or laws, recognized industry standards, or generally accepted professional practices.
3. Duty to Identify and Report Material Concerns
If Consultant becomes aware of a condition or practice that Consultant reasonably believes may materially affect construction quality, building performance, safety, cost, schedule, regulatory compliance, warranty coverage, durability, or the Client’s interests, Consultant may promptly advise the Client and, when appropriate and authorized, other responsible project participants.
Consultant shall be entitled to document such concerns through written correspondence, reports, photographs, meeting minutes, field observations, notices, memoranda, or other appropriate project records.
Consultant’s identification or documentation of a concern shall not, by itself, constitute an assumption of responsibility for the contractor’s work, construction means and methods, site safety, design responsibilities, or any other responsibility not expressly assigned to Consultant under this Agreement.
4. Nonconforming or Defective Work
Consultant shall not knowingly recommend acceptance of work that Consultant reasonably believes contains material defects or material deviations from applicable contract requirements, approved plans and specifications, manufacturers’ published requirements, or other applicable standards.
When Consultant identifies suspected defective or nonconforming work, Consultant may recommend investigation, testing, evaluation, corrective work, replacement, consultation with the applicable manufacturer or design professional, or other measures reasonably appropriate under the circumstances.
Final authority to accept or reject work shall remain with the party possessing such authority under the applicable construction contracts and project documents.
5. Professional Disagreement and Client Decisions
The parties acknowledge that legitimate professional disagreements may arise concerning construction methods, materials, sequencing, quality, cost, scheduling, interpretation of project requirements, or other project matters.
Consultant shall communicate its recommendations and the basis for material concerns in a professional manner. The Client retains the right to make business and project decisions within the Client’s authority, including decisions contrary to Consultant’s recommendations.
If the Client elects not to follow a material recommendation of Consultant, Consultant may document its recommendation, the reasonably foreseeable consequences identified by Consultant, and the Client’s decision.
Consultant shall not be responsible for damages, defects, failures, delays, increased costs, loss of warranty protection, or other consequences to the extent caused by a decision, action, or omission contrary to Consultant’s documented recommendation, except to the extent caused by Consultant’s own negligence, willful misconduct, or breach of this Agreement.
6. No Requirement to Participate in Improper Conduct
Consultant shall not be required to participate in, approve, conceal, facilitate, or make representations concerning conduct that Consultant reasonably believes would be unlawful, fraudulent, materially unsafe, materially deceptive, or professionally improper.
Consultant may refuse any instruction that would require Consultant to make a statement, certification, approval, representation, or project record that Consultant reasonably believes is materially inaccurate or misleading.
Such refusal, when made reasonably and in good faith, shall not constitute a breach of this Agreement.
7. Escalation of Material Professional Concerns
When a material professional disagreement cannot be resolved through ordinary project communications, Consultant may provide written notice to the Client describing:
- the condition or issue in dispute;
- Consultant’s professional recommendation;
- the applicable specification, manufacturer requirement, contract requirement, code provision, industry standard, or other basis for the recommendation, when reasonably identifiable;
- the reasonably foreseeable consequences of proceeding contrary to Consultant’s recommendation; and
- any corrective action or alternative approach Consultant recommends.
The parties shall make a good-faith effort to resolve the matter promptly so as to minimize unnecessary disruption to the Project.
8. Suspension or Withdrawal for Professional Cause
If Consultant reasonably determines that continued performance would require Consultant to materially compromise its professional judgment, participate in unlawful or materially improper conduct, make materially inaccurate or misleading representations, or knowingly endorse work that Consultant reasonably believes presents a material safety or compliance concern, Consultant may, after providing reasonable written notice when circumstances permit:
- decline to participate in the disputed activity;
- suspend the affected portion of its services until the matter is resolved; or
- terminate its services under this Agreement if the matter cannot reasonably be resolved.
Where an immediate and material threat to health, safety, or property exists, Consultant may take such action within its contractual authority as Consultant reasonably determines appropriate without awaiting expiration of any otherwise applicable notice period.
Consultant shall reasonably cooperate in an orderly transition of its services following withdrawal, subject to payment of amounts properly due under this Agreement and Consultant’s continuing obligations concerning confidentiality and project records.
9. Conflicts of Interest and Undisclosed Benefits
Consultant shall disclose any material financial or business interest known to Consultant that could reasonably impair Consultant’s objectivity concerning the Project.
Consultant shall not knowingly accept undisclosed commissions, kickbacks, referral payments, or other financial benefits from contractors, subcontractors, suppliers, manufacturers, or other project participants in exchange for recommending or approving their products or services.
10. Limits of Consultant’s Responsibility
Consultant’s review, observation, inspection, recommendation, reporting, or identification of deficiencies shall not relieve contractors, subcontractors, design professionals, manufacturers, suppliers, or other project participants of their respective contractual, statutory, or professional responsibilities.
Unless expressly stated otherwise in this Agreement, Consultant does not control and shall not be responsible for construction means, methods, techniques, sequences, procedures, site safety programs, or the acts or omissions of contractors, subcontractors, design professionals, suppliers, or other independent parties.
Consultant does not warrant or guarantee the work of any contractor or other project participant.
11. Good-Faith Professional Communications
Consultant shall be entitled to communicate good-faith professional observations, concerns, recommendations, and findings concerning the Project to the Client and, when authorized or reasonably necessary within Consultant’s contractual responsibilities, to appropriate project participants.
Good-faith professional reporting of suspected deficiencies, nonconforming work, safety concerns, manufacturer-requirement deviations, or other material project concerns shall not constitute insubordination, interference with the Project, or a breach of Consultant’s duties merely because another project participant disagrees with Consultant’s professional opinion.
12. Preservation of Professional Integrity
The parties acknowledge that Consultant’s professional reputation, independence, and integrity are fundamental to the services being provided under this Agreement. Accordingly, neither party shall require Consultant to place its name, approval, certification, endorsement, or professional reputation behind a representation, condition, installation, procedure, or completed work that Consultant does not reasonably believe, based upon the information available to Consultant, to be accurate, appropriate, or professionally supportable.