With ADA, It’s ‘Buyer Beware’

Avoiding problems with new construction means asking the right questions of architects and contractors

By Joan W. Stein  

Building owners and facility executives rely on the guidance and knowledge of architects and contractors when buildings are being constructed or renovated. Confidence in the architect’s or contractor’s ability to meet all applicable codes and regulations is usually a given. Just to be safe, of course, contracts include the clause “must comply with all applicable codes and regulations” to be sure all the bases are covered.

Since passage of the Americans with Disabilities Act (ADA) in 1990 and the implementation of Americans with Disabilities Act Accessibility Guidelines, or ADAAG, some building owners and facility executives have inserted specific references to nondiscrimination and compliance with the ADA into contract language. On the surface, this seems to offer all the protection needed. ADA is a federal law; it’s easy to assume that all architects and contractors must comply with it and fully understand it. But in real life, things aren’t so simple. Consider incidents like these:

  • The design professional submits plans for the renovation or construction to the appropriate regulatory agency for approval. Municipal, city or state officials review the plans and refuse to approve them because of noncompliant items under ADA, including significant elements of the project (entrances, interior access, rest rooms, etc.). The impact on the project timeline and budget is substantial.
  • The designer gets approval of the plans, which were designed in accordance with ADA. However, due to contractor errors or omissions related to ADA, the occupancy permit is denied following on-site review. Once again, the impact on the project timeline and budget is substantial.
  • Either the architect or contractor makes errors related to ADA requirements, but the errors are not caught at either the plan review or the on-site inspection. The project is completed on time and within budget. But within 10 days, the ADA complaints begin: parking problems, stairs at entrances, doorways and, often, bathrooms. At first, the response to those complaints is that they can’t be valid. How could a new building be completed if it did not follow “code”?

Not a Code

One problem with that response is ADA is not a building code; it is a civil rights law. Although much of it is predicated on ANSI and other building code formats, the reality is that complaints of noncompliance can be initiated solely on the perception of discrimination. But most ADA complaints aren’t just a matter of perception; they involve failure to meet the requirements spelled out in ADAAG.

Whose responsibility is it to meet those requirements? Ultimately, responsibility falls to the building owner. Other construction professionals may also be liable, but that doesn’t mean the building owner has no responsibility. To be an informed buyer of architecture and contracting services, the best approach to take is “buyer beware.”

Qualification Questions

It’s worth investing some time upfront to be sure that the project expected is actually the project delivered. Here are questions to ask architects and contractors; many apply to product manufacturers and representatives as well:

  • Is the firm knowledgeable in the various disability-related laws and requirements pertinent to the project?
  • What is the firm’s design philosophy, particularly on accessibility and universal design?
  • What sets this firm apart from the rest?
  • Does the firm involve people with disabilities in the design process?
  • How disruptive will construction be to persons with disabilities?
  • If the scope of the project changes later, will there be additional fees? How will these fees be justified?
  • Does the firm have a list of past client references for similar accessibility projects that can be contacted?

The same approach applies to evaluations of product maintenance and warranties:

  • What is covered under the product warranty?
  • Does it include parts and labor or just parts?
  • How long is the warranty in effect?
  • Are there extended warranties that may be purchased?
  • What is the typical demand-response for repairs?
  • Does the vendor keep parts for the product?
  • How long does it take for the parts to come in?
  • What if parts are no longer available for the product?
  • If the product is a lift, can it be operated manually in the event of a power failure or low battery?
  • Do manufacturers offer training in the installation and servicing of this equipment?

For purposes of ADA compliance, the facility executive must make sure that the building owner’s interests are being protected. Doing that means asking the tough questions and digging for answers. Make sure design and construction professionals include “errors and omissions” in their liability coverage. If a complaint is made against the owner or management of the building, be prepared with the documentation of the process used to ensure ADA compliance.

Joan W. Stein is president and CEO of Accessibility Development Associates Inc. in Pittsburgh, and Carol Cocuzzi is vice president of design consulting services for that firm.

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  posted on 1/1/2003   Article Use Policy

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