The construction industry has been moving toward a more collaborative approach to projects for some time now, with owners and designers realizing the benefits of bringing experienced contractors and subcontractors in to consult during the early planning and design stages.
Depending on how each party defines this involvement, the parameters of the relationship can vary from project to project, leaving some contractors to wonder exactly what their roles, responsibilities and liabilities are when they offer design input.
In order to help all parties understand these relationships better, the American Institute of Architects has issued guidance on two collaborative methods: delegated design and design assist.
The AIA, in cooperation with the American Institute of Steel Construction (AISC) interviewed designers and contractors as part of their research for the white paper "Design Collaboration on Construction Projects," in order to put together an industry consensus about what the terms delegated design and design assist mean, according to attorney Michael Koger, director and counsel at the AIA.
"We thought that we could bring enough folks to the table to at least be a bit of a lighthouse," he said.
So what defines these design strategies?
In the design-assist approach, the contractor typically has a contract with the owner to work with the design team, which also has a contract with the owner, to provide input into the project's design at the earliest stages, before the project has been priced out and certainly before a construction team has been awarded a contract. Before the design is set in stone, someone with expertise like a construction manager who has been involved with previous similar projects will be in a position to make constructive suggestions while the design process is still fluid, Koger said.
Other benefits include:
- Better communication between the design and construction teams.
- Early coordination and scheduling, avoiding conflicts and delays down the line.
- Early identification of constructability issues, avoiding change orders and requests for information in later project stages.
- Costs that can be locked in as soon as possible.
While the contractor could have contractual liability in a design-assist relationship, the extent is likely to be outlined in the contract. Ultimately, the design team is responsible for how they incorporate the contractor's input into the official construction documents.
That doesn't mean, however, that a contractor couldn't face legal ramifications around its involvement.
"When an owner experiences a problem after construction and it's a design-related problem," Koger said, "quite often those contractors are brought in as secondarily responsible parties."
Plaintiffs in these cases usually cast a wide net, he said, and just because design-assist contractors are brought into a lawsuit doesn't mean they can't successfully defend themselves against it.
"[Some] contractors that we interviewed were worried — and rightfully worried I think — that if [they are] assisting during design, regardless of who stamps the drawings, [they're] still going to get brought into the lawsuit, at least on the theory that [they] should have been able to catch a problem," Koger said.
Delegated design, he said, is a little "cleaner" when it comes to responsibility.
With this strategy, contractors do not typically provide input into the design based on their own experience and knowledge. They hire a professional designer to fulfill the design responsibilities delegated to it as part of the contractor’s construction contract.
Design in this case is usually delegated to a contractor as part of its scope of work and is typically based on performance criteria and the design concept laid out in the specifications and blueprints, Koger said. Specialty contractors are most likely to be asked to assume responsibility for the design of some portion of the project in this way, particularly given the growing complexity of construction projects, he added.
"[There are] trade contractors who are more knowledgeable about the systems that they are constructing and installing," he said, "so it makes some sense just from an efficiency standpoint to be able to pass down things to specialty contractors who can hire their own design professionals who are specialists in that area."
Contractors who are asked to engage in a delegated design relationship typically include those that specialize in structural steel, fire suppression, HVAC, curtain walls, precast concrete systems and many other trades.
The primary design team is still responsible for verifying that the information that the contractor and its design team provide comply with the overall project and design requirements. In fact, depending on licensing and building code requirements, which vary greatly from jurisdiction to jurisdiction in the U.S., there may be a limit as to exactly which of the primary design team's responsibility can be passed on to the contractor.
Contractors participating in delegated design, Koger said, are usually good about memorializing the agreement in a contract "because of all the responsibility that flows from it." This is not always the case with contractors that offer their input on a design-assist basis.
Contractors, he said, sometimes engage in design-assist activities without a formal agreement, a practice he cautions against because, if a problem arises, it can leave the owner, design team and contractor tussling over the question of who is responsible.
At the very least, a written design-assist agreement should include:
- The owner’s responsibilities to give the designers and contractor accurate and timely information.
- The contractor’s scope of work and the parameters of any warranties or guarantees.
- The timing and format of the information the contractor is to provide.
- How much the contractor will be paid.
- Identification of the parties and their respective responsibilities.
"A lot of times contractors are going to be doing this stuff for free just so that they can hopefully get the work, [so] there's much more likelihood that [they] are going to be doing design assist on a handshake kind of agreement," Koger said. "I hope that [they] would not do that."