Legal Issues Unique to the Design-Build Project Delivery Process

Written by Apartment Management Magazine on . Posted in Blog

By Design Everest

DesignBuild

Although design-bid-build has been the traditional method for delivering projects to clients, the popularity of the design-build project delivery method has been growing steadily. The design-build delivery method typically shortens the time needed to complete a project since there is a single entity working on the project, but this also entails that all responsibility for the project is held by a single designer/builder.(1) This leads to a unique set of legal issues that apply to the design-build project delivery method. These legal issues can be categorized under the following six divisions:

• Setting Checks and Balances.
In the design-build model, the design builder does not act like a typical engineer who would act as the client’s consultant. Instead, they are often incentivized to create a design which will value cost and constructability far more than other criteria that an homeowner would value.(1) For this reason, the owner must contractually set up checks and balances, which can be done by addressing performance, payment and regulating other conditions.(2) One way to do this is to develop a detailed specification, sometimes called the Owner’s Project Requirements (OPR), upon which the contract is based.

• Licensing Issues
The practice of professional engineering is heavily regulated with established requirements for the practice. The majority of contractors do not meet all of the requirements and therefore are not licensed as design professionals. For this reason, these services are often subcontracted to a design firm. In many states even this is illegal; a contractor is not able to hold out as performing design services for a design-build project unless they are a licensed design professional. Each state holds different regulations, but this causes legal difficulties in the design-build process.(1)

• Insurance Issues
Typically, they will have insurance for errors and omissions which excludes construction services, and contractors often have liability policies which exclude design services. Design professional policies often have high deductibles while liability policies for contractors have little to no deductible. Since each of the insurance types impact the design-build process differently, it can be very expensive to insure this project delivery method.(1)

• The Designer/ Builder Relationship
Since the design builder may be a single person or a contractor/ designer duo, questions may arise regarding the relationship of the two. The two may form a joint venture, a limited liability partnership, or choose to use another organizational form. The homeowner must understand all legal ramifications of contracting with each of these groups(2)

• The Standard of Care
In a design-build project,the homeowner will typically hold the design-builder to higher standards. An engineer does not ordinarily guarantee a successful outcome for the services they provide, but a contractor is expected to deliver a successful final project.(1) Since a design-builder holds the position of contractor, they are typically held to the stricter standards typical for a contractor for all parts of the project, as all services are addressed in a single contract. Although design-builders may often be held to higher standards, this does not require the design-builder to change their standard of care.(1) This can often lead to homeowners becoming dissatisfied with the standards held by the design-builder working on their home.

• Right to a Change Order
In the traditional project delivery method, the contractor is entitled to a change order if any of the following occur:
The owner changes the scope, interferes or disrupts the project, or impacts the project in any manner.(1)
The conditions of the project change due to unknown obstacles.(1)
Problems in the design are encountered(1)
For the design-build method, all of the above may entitle the design-builder to a change order except for problems in the design.(1) Due to the fact that the design-builder acts as contractor, they are held responsible for both the design and build aspect of the project.

• Ensuring Performance
Typically, a contractor only held responsible for the individual services they provide, and not the success of the project in its entirety.(1) In design-build projects, the design-builder is responsible for the success of the overall project since they are held accountable for the majority of the individual services. For this reason, a performance warranty should be drafted to guarantee the quality and performance of the project for a period of time.(1) This holds the design-builder accountable for the project as a whole.

Sources:

Friedlander, Mark C. “Seven Legal Issues Unique to Design-Build.” Schiff Hardin. N.p., 5 June 2015. Web. 6 Jan. 2017.

McGreevy, Susan Linden, A. Elizabeth Patrick, Jessica D. McKinney, and Norman M. Arnell. “Perplexing Issues in Design-Build Projects.” Probate & Property. N.p., Nov. 2005. Web. 6 Jan. 2017.

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