New York State Education Department (NYSED) is the agency responsible for issuing professional licenses, including licenses to practice architecture in New York State.

To preface, in New York State there are no educational or certification requirements to provide non-professional interior design services. Technically anyone could provide these services.

Various builders and interior designers are under the impression that the "design" in "design-build" stands for interior design services, which is incorrect.

To clarify, the "design" in "design-build" stands for professional design services such as architectural or engineering design. When architectural services are required, they must be provided by an Architect who is licensed and currently registered in New York.

Per the New York State Education Department (NYSED) "Nothing in this guideline shall prohibit a general contractor from providing those services not requiring professional licensure under the Education Law Section 7306."

NYSED clarifies that general contractors are allowed to perform non-professional services such as interior design.

Therefore, a contractor, interior designer, or other unauthorized entity may not advertise that it provides architectural services.

To conclude, the advertising of design-build term implies architectural services are offered. When a contractor or interior designer advertises design-build this offering is considered false advertisement of unauthorized architectural services which may be prosecuted as a Class E felony and Class A misdemeanor in NYS.

Design-build delivery method is not permitted on residential projects in NYS per NYSED rules.

When is Design-Build Allowed?

Design-build delivery method is typically authorized on government-based public projects after being approved by a special review under limited conditions. It is not allowed to be advertised, nor implemented on residential projects in New York state. Per NYSED "design-build has been authorized on certain projects for certain entities under special legislative actions and under specific limited conditions. Questions relating to whether design-build is permitted under such conditions should be reviewed with said legislative actions."

NYSED clarifies that design-build is allowed under special legislative review and on certain projects only.

To clarify, design-build is an acceptable project-delivery method when it is specifically authorized and appropriately structured. It has its own place and should be implemented only under the applicable legal requirements. However, it is not allowed on residential projects in New York City.

Surprisingly, or not, if you're online in New York and Google "renovation" or "remodel", there will be plenty of firms advertising falsely as design-build, with many of them ranking at the first page of Google search.

Firms falsely advertising as design-build ranking on the first page of Google search.

Design-build describes a contractual structure involving the Owner, Architect, and builder. There are different project delivery methods available, each has a specific place and time, when appropriate for a project type in the realm of construction industry at large.

One Contract for Design and Construction

Design-build by definition means that one contract is signed between an Owner on one side, and Architect and builder on the other side. Further, it means that an Architect and a builder offer professional architectural design and construction services under one contract.

Architect Retained or Employed by Contractor

An Architect employed by a contractor's firm cannot qualify the contractor's firm to offer design-build services.

Per New York State Education Department (NYSED) rules:

While there is nothing in Education Law that prohibits an architect from being employed by a general contractor to perform non-professional services, a general contractor may not render, or offer to render, architecture services in New York, typically referred to as "design-build."

NYSED clarifies that general contractors shall not advertise nor perform design-build services.

Architectural Design Services Cannot Be Brokered

NYSED further states "Such services may not be brokered by a third party." When an Architect is employed or retained by a contractor, it is explained "Even though in this scenario the professional services are being provided by a licensee, the services are being passed through an unlicensed corporation creating issues relating to illegal practice as well as unlawful profit sharing and fee splitting."

NYSED clarifies that general contractors may not advertise or render architectural services even if a licensed architect is employed or retained.

The appropriate project delivery method for apartment renovations in NYC is design-bid-build!

An Architect is retained first. After architectural drawings and specifications are prepared, we assist the Owner with the selection of a general contractor and the appropriate form of agreement that Owners shall use to contract with a builder.

This guidance at critical milestones by an Architect is skipped when an Owner prematurely signs a contract with a contractor that falsely advertises as design-build! The Owner is left without the protection. It is an Architect's duty to protect Owners' interests; with false advertising the expected roles of an Architect are disabled.

What is Design-Bid-Build?

This structure implies two separate contracts, one contract between Owner and Architect for design professional services (architectural services) and one contract between Owner and builder for construction.

Design-bid-build project delivery method is legally acceptable for apartment renovations in NYC. It offers a high degree of protection for Owners, assuming standards are followed and implemented, allowing transparency and good practices to be implemented. Read more on design-bid-build and why an Architect shall be retained first.

The Most Crucial Step in Design-Bid-Build

An Architect is retained first.

The Architect advises the Owner from the beginning of the project through completion:

• Programming and budgeting;
• Architectural design;
• Assistance with permitting;
• Assisting with selection of a general contractor;
• Advises on the form of agreement between Owner and a contractor;
• An Architect oversees construction phase.

Most firms that advertise falsely as design-build in NYC are contractors and some interior designers. If such firms indeed contracted with a client for falsely advertised "design-build" services, it would mean that an unauthorized professional architectural design service was provided.

As we mentioned earlier "design" refers to architectural and engineering professional design services in design-build. To reiterate it does not refer to interior design services.

Per the New York State Education Department (NYSED), Office of the Professions, under the Professional Practice for Architecture under Practice in Section 8, Appropriate Titles and Professional Designations.

""Architect" is a protected title. Only a person licensed and registered in New York can call himself/herself an architect and offer architecture services in New York. Anyone else using the title "architect" may be prosecuted for committing a Class A misdemeanor and anyone else offering to perform architecture services in this State may be charged with a Class E felony."

NYSED clarifies that general contractors or interior designers advertising falsely as design-build, while offering unauthorized architectural services may be prosecuted for committing Class E felony in NYS.

What this Means for Owners Considering an Apartment Renovation?

What does this robust language mean for the owners of properties that are considering apartment renovation?

In practice, most apartment renovations, including kitchen and bathroom remodels, or even kitchen and bathroom retiling in NYC require an Architect involved and architectural services provided. Which is why it is scary that contractors and interior designers advertise falsely as design-build and mislead the public on what services they are authorized to provide. A glitch to clarify, when a builder suggests to an Owner that they work closely or collaborate with an Architect, or how a builder vetoes/recommends an Architect to support false advertisement of design-build, this talk is not in any capacity valid support of design-build advertisement.

Read more on why an Architect is required for bathroom and kitchen remodels in NYC.

Design-build has become a marketing buzzword and an advertising point for apartment renovations in NYC. As we stated earlier design-build is not an authorized delivery method for residential projects in New York State, it is an unauthorized advertisement, or in other words an illegal offer.

A question is whether a builder's firm that falsely advertises as "design-build" understands what this delivery method means in contractual context for an apartment renovation project in NYC. Ignorance of the law is no excuse and does not excuse anyone from the consequences of misleading the public and engaging in unauthorized activities.

Frequent and False Marketing Terms

Typically seen verbiage includes:

• Design-build;
• One-stop shop;
• One contract;
• We do it all;
• No headaches;
• We coordinate plans and secure approvals;
• We have Architects and Engineers in-house;
• We provide design and permits;
• Only one party involved.

Firms falsely advertising as design-build and using typically seen verbiage associated ranking on the first page of Google search.

This advertising creates a false impression that authorized professional architectural services are offered. Watch out for this!

Many contractors go so far as to advertise on their websites that they have an Architect or an Engineer in-house. As we mentioned an Architect employed by a contractor does not qualify a builder's firm to provide design-build services, and design-build delivery method is not allowed in NYS on residential projects, regardless.

How Design-build False Advertisement is Sold to Owners

Consumers may naturally prefer the apparent simplicity of one contract over two contracts on their renovation project and that false advertisement is exploiting this seemingly logical preference to persuade Owners into a contract, unfortunately under false circumstances.

The false marketing celebrates one contract on an apartment renovation project in NYC under the guise of design-build services. Typically, design-build false advertisement is compared to design-bid-build delivery method that would be an acceptable delivery method for residential projects, indeed. False advertisement elaborates on benefits of one contract on a residential project (which is legally not acceptable) even though it may sound appealing. Contractors get creative and tend to be very loud about falsely advertising design-build and one contract, most times this marketing point becomes their brand identity.

Owners signing a contract with a contractor first lose an opportunity to have an Architect review their contract for construction - which is a tremendous loss and a ticket for uncontrolled delays and additional cost during construction phase. Read more what could be the consequences of retaining a general contractor first.

Owners are not expected to be familiar with construction laws, and the false advertisement may just make sense at first. The appeal of one contract is an attractive offer, yet design-build false advertisement misleads Owners into signing a contract with a builder prematurely. In reality, one contract does not happen as an Architect eventually is engaged on a separate contract, unless unauthorized architectural services are rendered by a builder following false advertisement, which is a more serious violation of governing laws than false advertisement solely. In either case, an Architect is in most cases consulted too late and the damage is already done!

How False Advertisement of Design-Build is Distorting the Industry

To put this phenomenon in context, any entity misrepresenting itself as an Architect and offering or providing architectural services while not authorized to do so deeply distorts the understanding of industry standards in the eyes of the public, including Owners and consumers.

NYSED clarifies consequences on falsely representing as an Architect in NYS. Such entities may be prosecuted under felony Class E charges.

The narrative developed by this false advertisement to clients revolves around how a renovation project could be easily delivered though one point of contact, how confusion and coordination is limited, that the parties contracting with Owners are consolidated in one contract and so on, with an idea to present themselves as only contact needed on a project.

One feature is common across false advertisement, it dismisses the fact that an Architect is needed and failing to clearly identify themselves as builders or interior designers only. Services related to architectural design and approvals that an Architect is authorized to prepare filings for, are presented in an ambiguous manner, often said to be coordinated by the entity that falsely advertises. Again, architectural services cannot be brokered per NYSED rules.

Major Publications Not Helping

Design-build is a widely misinterpreted term in New York City in relation to residential renovations. Even major publishing and marketing platforms in the industry unfortunately do not help correct this bad trend instead they support the promotion of firms that falsely advertise as design-build, maybe due to not being informed properly themselves neither; such platforms are Houzz, Architectural Digest and others. We did our homework and notified them of irregularities related to design-build terminology associated with firms that they award or include in their favorite lists, we are curious if any change would occur next.

Both Architectural Digest and Houzz specialize on residential projects to inform the public, yet their platforms promote firms that advertise falsely as design-build.

If you review selected contractors' firms in the article published in Architectural Digest, you will find that many of them advertise unauthorized design-build services on residential projects in NYC.

High Price for Retaining a Builder First

Eventually, an Architect is engaged on the project with a separate contract, so it isn't really one-stop shop in any capacity as advertised by contractors.

At this point a builder may have provided an Owner an agreement that is unfavorable and then signed. For example, construction schedule not provided, not addressing delays by a contractor, not defining contractor's responsibility during construction phase, unfavorable front loaded payment schedule to a builder, inaccurate construction cost estimates, etc.

We will dive into this topic in our second article related to design-build.

Retaining an Architect later in the process is not good practice. On the contrary, good practice is having an Architect protect Owners' interests from the very start of renovating an apartment in NYC. Various complications may and most likely will arise from signing a contract with a builder prior an Architect develops drawings and without an Architect assisting with selecting a builder process. Think of an Architect as your advisor when it comes to design and construction. It is not wise entering into construction contracts worth tens or hundreds of thousands of dollars on your own with a builder.

Typically, a false offer is sold and a promise that an Architect would be coordinated by a contractor or an interior designer. Let's be clear, an Architect is a separate entity, with a separate set of liabilities, separate scope of responsibilities, with a separate contract with the Owner.

Side Effects of False Design-Build Advertisement

As a side effect, some contractors tend to develop relationships with architects that may not employ the level of care to their practice and are susceptible to contractors' influences on their decision making. Such architects are typically leveraged by the fact that the firms falsely advertising as design-build secure clients by advertising falsely and consequently suggest to an Architect to "close their eyes" as needed and on the basis of recommending an Architect on a project.

Such contractors tend to feel empowered during construction phase, dismiss the requested protocols, do not install work per issued drawings, and the list goes on. Over time, same companies grow into midsize firms with thirty employees or more, and false advertisement is no longer an isolated case, but rather a pandemic and it's slowly but surely becoming the mainstream and distorting the reality and understanding of how apartment renovations in NYC shall be delivered.

Our office has contacted the Attorney General, NYSED and the Mayor's Office on the issue at hand and notified several publications to curtail their support of the unlawful advertisement of firms they promote on their platforms. We will continue our efforts to bring awareness of false advertisement.

This dynamic or better to call it pandemic of false advertisement on apartment renovations in NYC is scary and dangerous. Life safety issues arise when a contractor pretends to be an Architect or influences an Architect on the account of recommendation. Architecture services outcomes should not be leveraged or influenced by anyone.

The builder says they have a licensed architect they work with or employed by them. Does that make the firm design-build?

No. Architectural services can only be provided by a licensed Architect directly contracting with an Owner.

Can a general contractor employ a licensed Architect?

A contractor may employ an Architect to perform nonprofessional services, in other words a contractor's firm having a licensed architect as an employee doesn't qualify the firm to provide architectural services.

Is a builder offering design-build permitted for New York City apartment renovations?

No. Design-build is not allowed in New York State or New York City on residential projects.

Can there only be one contract signed for my New York City apartment renovation?

No. At a minimum a contract with a builder and a contract with an Architect is needed, assuming there is architectural scope of work. Read more when a permit and an Architect involved is needed.

Can a contractor retain an Architect on behalf of an Owner?

No, a builder may not retain an Architect and then pass the architectural services through their company to the owner.

Who should pay the Architect?

The Owner should pay the Architect directly for professional architectural services.

The Architect's compensation should not be concealed inside the contractor's construction price, marked up by the contractor, or passed through an unauthorized company.

Can a contractor coordinate with an Architect?

Yes. Architects and builders regularly coordinate during estimating, preconstruction, permitting, submittal review, construction, inspections, and project closeout.

Coordination is not the same as offering, controlling, or brokering architectural services. The Architect must maintain independent professional judgment and a direct relationship with the Owner.

Can a contractor or interior designer prepare floor plan layouts?

No, only an Architect may provide floor plan layouts.

Can an interior designer advertise design-build services?

No. An interior designer may provide non-professional interior design services, such as decorative selections.

An interior designer or interior design company may not offer architectural services or pass an Architect's services through to the client.