Delegated Design In A Design-Bid-Build Project Delivery Approach The Professional Liability Conundrum

• Jurisdiction: United States,Federal
• Law Firm: Ankura Consulting Group LLC
• Subject Matter: Real Estate and Construction, Construction & Planning
• Author: David A. Pogorilich and Eric Brodfuehrer
• Published date: 07 August 2023

The inclusion of "Delegated Design" scopes of work into the construction documents of a construction project blurs the roles of the design professional of record (DPR) and the constructor. The role of the DPR is to design and detail the project to define the expected configuration and quality of the completed project. The role of the constructor is to construct the project and be able to rely on the accuracy of the design developed by the DPR. Delegated design is the act of the DPR relinquishing design responsibility to the constructor for one or more specialty scopes of the work for the construction of a project. The conundrum that is created is the inability to allocate the design responsibility of the delegated design scope of work and the performance of the design. Case studies of projects where the delegated design scopes of work were found to be defective in their design have determined that the DPR is not responsible for that scope of work despite their primary role as the designer.

The Process

The Design-Bid-Build project delivery approach is the manner in which design and construction projects have been traditionally executed. The Design-Bid-Build project delivery approach is explicitly intended to advance a construction project in a sequential manner. The Design-Bid-Build project delivery approach is intended to fully complete one phase of the design and construction project before another is initiated. The DPR is traditionally an architect or engineer retained by the owner to lead the design and technical detailing phase of a project and they assume full responsibility for the health, safety, and welfare of the public who occupy the project. The sequence begins with the DPR developing the construction documents consisting of drawings and specifications that define the scope of the work required to construct the project. The construction documents are then issued to constructors to provide a price to build the project as described in the construction documents. The bids, as well as the qualifications of the constructors, are reviewed by the owner and a constructor is selected often with the assistance of the DPR.

Under the Design-Bid-Build project delivery approach, the DPR is wholly responsible for the suitability of the intended purpose and accuracy of the design work defined in the construction documents and for the overall coordination of all aspects of the project. However, the resolution of disputes regarding the ownership and liability for defective designs that have developed from a scope of work that was delegated has been inconsistent in determining professional liability.¹

Why is Design Delegated?

There are several reasons a DPR may choose to delegate a scope of work to the constructor. The construction design environment has evolved into various highly scientific and specialized sub-components that include multiple variables. The DPR is designated to integrate all of the components into a single set of construction documents. As the diversity of programmatic functions required of a project grows and the innovative use of new materials has become more prevalent, it has become increasingly difficult for the DPR to be the traditional "master builder" of the past and assume general responsibility for the entirety of the project.

The manufacturers of construction materials continue developing new products that attempt to improve the ability to meet increased and evolving performance criteria. Construction assemblies have become increasingly complex and often include more material components than ever before. In turn, the number of transitions and interfaces between the...