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Ten Commandments Of Loss Prevention

The Eighth Commandment: Treat Certifications Like a Bad Neighbor.

Are you required by your Agreement to give the certification requested? If not, try to avoid it.

Does the certification attempt to expand your services beyond those contained in your agreement for services?

Certifications should always be based on "your knowledge, information and belief"; particularly if they involve matters outside of your total control - compliance of construction with plans and specifications; contractor’s entitlement to payment; absence of hazardous materials.

Certifications should always be based on your professional judgment - they should not be language of warranty or guaranty. Even where you have control over the subject matter, i.e. compliance of plans with codes, your statement of compliance should be in terms of "a reasonable and prudent (architect or engineer) rendering services of the type set forth in the agreement exercising usual and customary professional skill and care." Guarantees and warranties are generally not insurable.

Certifications should be accurate and reasonable. Limiting the certification to "your knowledge, information and belief" and to your "professional judgment exercised as reasonable and prudent (architect or engineer) using usual and customary professional skill and care" is not always enough if the subject matter of the certification is outside of your expertise or is overly broad. For example, compliance with "all" codes, statutes and regulations, etc. is not reasonable. You are not likely to be fully aware of all of them, they may not all apply to your services, they may be contradictory. Another example is the absence of hazardous substances at the site (asbestos, urea formaldehyde, pcb’s) or the absence of hazardous substances in the building materials incorporated.

Are you improperly assuming a governmental function? Building code officials may require certification that the structure complies with the building code. It is their duty to make this determination and an effort should be made to avoid this type of certification.

Is your compensation adequate for the risk and for the level of services required?

If possible, the form of certification should be developed during the negotiations for the contract and attached as an exhibit. This is particularly useful with lender certifications.

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