For contactors and design professionals, the principles of design responsibility have undergone significant changes in the last several decades. Long gone are the days when contractors were able to follow clearly delineated lines and point to the architect or engineer of record for all design-related liability. As projects and delivery methods become more complex and design is often completed by multi-discipline design teams, design responsibility has become increasingly complex for architecture, engineering, and construction (AEC) firms.
Delivery Model Evolution
AEC firms have long been familiar with the traditional design-bid-build delivery model, which remains the predominant delivery method in the public arena. In this model, the design firm retained by the public owner has ultimate design responsibility, and the contractor agrees to bid and build in strict conformance with plans and specifications.
From this model was born the Spearin Doctrine. The Spearin Doctrine, established by a 1918 U.S. Supreme Court ruling in United States v. Spearin, holds that if a contractor is required to follow design specifications provided by the owner, the contractor is not responsible for the consequences of defects in those designs. Essentially, the doctrine implies that the owner warrants the adequacy of the provided design documents, and if issues arise due to flaws in those designs, the contractor cannot be held liable.
In the context of design responsibility, the Spearin Doctrine emphasizes the separation of design and construction responsibilities; contractors are responsible for building according to the provided plans, and the liability for design flaws lies with the party who created or provided those designs – typically the owner or the design professionals hired by the owner.
Today’s built environment is much more collaborative. Owners demand that projects are delivered better, faster, and cheaper than ever before. The current macroeconomic environment makes that increasingly difficult. Owner and developer proformas are under stress due to elevated interest rates. Applying further pressure is the cost of raw material, which is elevated due to lasting supply chain challenges and the inflationary environment. Labor is scarce and comes at a premium due to the labor shortage. Quality assurance remains a heightened concern in the industry. These elements are forcing AEC firms to become more agile and collaborative with all project stakeholders to meet client expectations. Various forms of alternative project delivery methods have become prevalent to meet these demands.
Understanding Alternative Delivery Methods
As alternative delivery methods become increasingly prevalent, ownership of design responsibilities is becoming blurry. Design responsibility is trickling down the contracting chain both formally and informally, and it is a common misconception that this “blending” is only happening on true design-build projects.
Design Assist
Tools such as Building Information Modeling (BIM) paved the way for more collaborative building processes and the rise of design assist. Design assist brings key construction trade partners into the design process and promotes practical conversations about constructability and budget concerns much earlier in the building process. The blending of these processes benefits the owner by ensuring that design, budget, constructability, timeline, and other project constraints are all evaluated through design development. Design assist, in addition to traditional value engineering and other more informal contributions, is common on most vertical construction projects and is often overlooked as a shift in design responsibility.
Delegated Design
Design assist opened the door to the development of true delegated design. In this model, design partners outline key “performance” or “output metrics” versus detailed design specifications. From here, design responsibility for these key scopes is placed with the specialty construction partner – often mechanical, electrical, and plumbing (MEP) trades or specialty system subcontractors – to design a system that meets the performance requirements. In this way, formal design and construction responsibility for these key systems shifts to this subcontractor. Under this model, the general contractor or construction manager also – knowingly or unknowingly – assumes vicarious design liability for the scope of their downstream sub, which includes the design responsibility.
Design Build
Lastly is the design build method, which is touted as a streamlined process that fully integrates design and construction responsibilities under one. This can be achieved through contractor-led or engineering-led partnerships, joint ventures, teaming agreements, or in house capabilities. Regardless of structure, clients appreciate the single point of accountability and collaboration among project teams to ensure all project objectives are met.
Strategies for AEC Partners
Regardless of your position in the contracting chain, there are common strategies AEC firms can utilize to manage risk associated with the shifting dynamics of design responsibilities:
Communication
Communication is a critical component to the success of any project, and poor communication is a driver of design-related claims for AEC firms. Effective communication, especially with projects involving alternative delivery methods, aligns expectations among all project stakeholders to avoid misunderstandings that lead to costly delays, rework, and disputes.
Qualified Project Team Members
It is essential to not only refine your client selection, but subcontractor and subconsultant selection process as well. Choosing project partners that have a strong track record and expertise to contribute effectively to the project is crucial. While price is important, selecting a project partner solely based on price – especially one with delegated design responsibility – can be a very costly decision.
Clear Scope
Careful and comprehensive scopes that define the role of each project member help eliminate conflicts and ambiguity for all project team members while promoting better accountability and coordination. This ensures that design intent and construction execution are aligned.
Refined RFI Process
The industry is experiencing a trend of increased claim activity with both design and construction firms related to the RFI (request for information) process. There must be a standardized RFI process understood among all project stakeholders to ensure clarity should future disputes arise.
Contractual Risk Transfer
Many contracts are written with traditional design-bid-build delivery methods in mind. Attention must be given to ensuring that the contract language matches the unique scope of a given project.
Adequate Insurance Risk Transfer
Insurance is a key funding mechanism for project risk, and verification that proper insurance risk transfer is in place for project stakeholders is important to ensure there is funding available should future issues arise.
Our Team Knows Your Risk and Responsibility
So, where does design responsibility reside? It is certainly not as simple as the name on stamped drawings. As the project risk landscape continues to change, our AEC experts at Holmes Murphy can assist in providing resources and training to support your organization’s risk management strategy. Check out our upcoming events!
If you’re ready to learn more, reach out today and let’s get started!
