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THE DANGERS OF DESIGN DELEGATION
Division 9 Conference Call - September 16, 2015
Presented by:
Brian J. Schoolman
Safran Law Offices
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WHAT IS DESIGN DELEGATION?
• “Design Delegation” is the general term (but sometimes it
is a term of art) for flowing responsibility for design of
some aspect of a project to a party other than the
designer of record (architect and/or engineer).
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HOW IS “DESIGN DELEGATION”
IMPLEMENTED?
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EXAMPLES OF DESIGN DELEGATION
• Example 1: A Retaining Wall shown on a drawing, and the
subcontractor is called out to furnish it.
• Who is responsible for “designing” the wall?
• Who is responsible for “engineering” the wall?
• What are the documents that will reflect the division of
responsibilities?
• Frequently, whether explicitly or implicitly, the “design”
responsibility is placed on the sub.
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EXAMPLES OF DESIGN DELEGATION
• Example 2: A Pre-Engineered Metal Building called out in
specifications
• Who is responsible for “designing” the building?
• Who is responsible for “engineering” the building?
• What are the documents that will reflect the division of
responsibilities?
• Often, the lack of “design” shows up not with the
structure itself, but the interior features. For instance,
elements intended to be affixed to the walls, or hung
from the rafters, require engineered solutions.
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EXAMPLES OF DESIGN DELEGATION
• Example 3: An Electrical System is described by a
Performance specification
• Who is responsible for implementing the performance
criteria?
• Who is responsible for evaluating whether the
performance criteria were met?
• What specifies these responsibilities?
• This problem arises most notably with pre-existing
structures, where the renovation doesn’t “fit” what is
remaining.
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EXAMPLES OF DESIGN DELEGATION
• Example 4: When Shop Drawings are the only “design
documents”
• What role are the shop drawings serving?
• What role is the A/E serving by “approving” the shop
drawings?
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EXAMPLES OF DESIGN DELEGATION
• Example 5: Interface between delegated design and
undelegated design
• Who is responsible for the transitions? (from AIA article)
• Where undelegated field-installed insulation and
delegated manufacturer-provided insulation transition
at curtain walls and roof equipment curbs
• Where delegated rain-screen subframing is anchored
through undelegated sheathing and air barriers to
delegated cold-formed wall framing
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EXAMPLES OF DESIGN DELEGATION
• Example 5: Interface between delegated design and
undelegated design
• Who is responsible for the transitions? (from AIA article)
• Where curtain wall, large window walls, or louvers are
anchored through undelegated sheathing and air
barriers to delegated cold-formed framing
• Where seismic guiderail load connections from
elevator systems are anchored to undelegated
reinforced masonry or delegated metal fabrications
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EXAMPLES OF DESIGN DELEGATION
• Example 5: Interface between delegated design and
undelegated design
• Who is responsible for the transitions? (from AIA article)
• Where undelegated foundations support delegated
metal buildings, canopies, or towers
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WHY DOES DESIGN DELEGATION
MATTER?
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WHY DESIGN DELEGATION MATTERS
• In almost all jurisdictions, only a licensed professional is
permitted to perform architectural or engineering design
work. So what does it mean when the potential exists -- or
when the contract demands -- for some element of the
design responsibility to be delegated to a subcontractor?
• Concern: Compliance with licensure laws
• It is unlawful to engage, or assist in the engaging, in
the unlicensed practice of architecture and/or
engineering.
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WHY DESIGN DELEGATION MATTERS
• A specialty subcontractor who takes on design
responsibility, either directly or through a design
subconsultant, not only has the typical risks, but may face
exposures beyond the construction of its scope of work.
• Concern: Liability to others
• Most CGL policies specifically exclude professional
negligence coverage.
• OSHA will seek to determine who is the responsible
party, even on “design” questions.
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WHY DESIGN DELEGATION MATTERS
• Then perhaps the easiest issue to appreciate within the
typical contractor / subcontractor relationship: What
does the sub have to do to comply with the subcontract?.
• Concern: Performance of the subcontract
• Who is responsible between the A/E and the
construction team if delays occur on delegated
elements?
• How do you determine responsibility for changed
conditions, extra work, or interface problems between
delegated and non-delegated elements?
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HOW IS DESIGN RESPONSIBILITY
DELEGATED?
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DELEGATION OF DESIGN CONTRACT FORMS
• “Structural Design Delegation” by David J. Hatem, PC and Matthew P. Tuller,
Esq., Structure magazine, November 2009
• “The proper delegation of design services from the structural engineer of
record to specialty design professionals or to contractors requires an
express statement of the intent of the parties to delegate these
components. The delegation of design components must be done through
the contractual language, specifications, and in compliance with local
regulations.”
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DELEGATION OF DESIGN CONTRACT FORMS
• AIA General Conditions - AIA A201-2007, Section 3.12.10
• The Contractor shall not be required to provide professional services that
constitute the practice of architecture or engineering unless such services
are specifically required by the Contract Documents for a portion of the
work or unless the Contractor needs to provide such services in order to
carry out the Contractor’s responsibilities for construction means, methods,
techniques, sequences and procedures. The Contractor shall not be
required to provide professional services in violation of applicable law. If
professional design services or certifications by a design professional
related to systems, materials or equipment are specifically required of the
Contractor by the Contract Documents, the Owner and the Architect will
specify all performance and design criteria that such services must satisfy....
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DELEGATION OF DESIGN CONTRACT FORMS
• AIA General Conditions - AIA A201-2007, Section 3.12.10
• .... The Contractor shall cause such services or certifications to be provided
by a properly licensed design professional, whose signature and seal shall
appear on all drawings, calculations, specifications, certifications, Shop
Drawings and other submittals prepared by such professional. Shop
Drawings and other submittals related to the Work designed or certified by
such professional, if prepared by others, shall bear such professional’s
written approval when submitted to the Architect. The Owner and the
Architect shall be entitled to rely upon the adequacy, accuracy and
completeness of the services, certifications and approvals performed or
provided by such design professionals, provided the Owner and Architect
have specified to the Contractor all performance and design criteria that
such services must satisfy....
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DELEGATION OF DESIGN CONTRACT FORMS
• AIA General Conditions - AIA A201-2007, Section 3.12.10
• .... Pursuant to this Section 3.12.10, the Architect will review, approve or take
other appropriate action on submittals only for the limited purpose of
checking for conformance with information given and the design concept
expressed in the Contract Documents. The Contractor shall not be
responsible for the adequacy of the performance and design criteria
specified in the Contract Documents.
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DELEGATION OF DESIGN CONTRACT FORMS
• ConsensusDOCS 200 - Agreement and General Conditions between Owner
and Constructor, Section 3.15
• DESIGN DELEGATION. If the Contract Documents specifically require the
Constructor to procure design services, the Owner shall specify all required
performance and design criteria. The Constructor shall not be responsible
for the adequacy of such performance and design criteria. As permitted by
the laws, rules, and regulations in the jurisdiction where the Project is
located, the Constructor shall procure such services and any certifications
necessary to satisfactorily complete the Work from a licensed design
professional. The signature and seal of the Constructor’s design
professional shall appear on all drawings, calculations, specifications,
certifications, shop drawings, and other submittals related to the Work
designed or certified by Constructor’s design professional.
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DELEGATION OF DESIGN CONTRACT FORMS
• EJCDC C-700 - Section 7.19 - Delegation of Professional Design Services
• A. Contractor will not be required to provide professional design services
unless such services are specifically required by the Contract Documents for
a portion of the Work or unless such services are required to carry out
Contractor’s responsibilities for construction means, methods, techniques,
sequences and procedures. Contractor shall not be required to provide
professional services in violation of applicable Laws and Regulations.
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DELEGATION OF DESIGN CONTRACT FORMS
• EJCDC C-700 - Section 7.19 - Delegation of Professional Design Services
• B. If professional design services or certifications by a design professional
related to systems, materials, or equipment are specifically required of
Contractor by the Contract Documents, Owner and Engineer will specify all
performance and design criteria that such services must satisfy. Contractor
shall cause such services or certifications to be provided by a properly
licensed professional, whose signature and seal shall appear on all
drawings, calculations, specifications, certifications, and other submittals
prepared by such professional. Shop Drawings and other submittals related
to the Work designed or certified by such professional, if prepared by
others, shall bear such professional’s written approval when submitted to
Engineer.
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DELEGATION OF DESIGN CONTRACT FORMS
• EJCDC C-700 - Section 7.19 - Delegation of Professional Design Services
• C. Owner and Engineer shall be entitled to rely upon the adequacy,
accuracy, and completeness of the services, certifications, or approvals
performed by such design professionals, provided Owner and Engineer
have specified to Contractor all performance and design criteria that such
services must satisfy.
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DELEGATION OF DESIGN CONTRACT FORMS
• EJCDC C-700 - Section 7.19 - Delegation of Professional Design Services
• D. Pursuant to this paragraph, Engineer’s review and approval of design
calculations and design drawings will be only for the limited purpose of
checking for conformance with performance and design criteria given and
the design concept expressed in the Contract Documents. Engineer’s review
and approval of Shop Drawings and other submittals (except design
calculations and design drawings) will be only for the purpose stated in
Paragraph 7.16.D.1.
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DELEGATION OF DESIGN CONTRACT FORMS
• EJCDC C-700 - Section 7.19 - Delegation of Professional Design Services
• E. Contractor shall not be responsible for the adequacy of the performance
or design criteria specified by Owner or Engineer.
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DELEGATION OF DESIGN DEVELOPING ISSUES
• Integrated Project Delivery / Building Information Modeling
• An IPD program is thought of as “collaborative design” because the owner,
the contractor(s), and the designer(s) work together during the
programming and design stages with the goal of minimizing certain types of
conflicts and inefficiencies.
• BIM involves use of modeling -- often through computer representations --
to present objects and attributes in conjunction. Multiple parties have the
opportunity to input and influence the modeling.
•
Who is the “designer” if the structural design software makes changes in
response to inputs from non-licensed parties?
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DELEGATION OF DESIGN DEVELOPING ISSUES
• Generally specified building products
• There is a long history of “delegating” secondary structural items such as
stairs, handrails, davits, and elevator support rails and beams
• More recently, there has been a greater move to delegating the design for
primary structural elements also, including light gage trusses, wood trusses,
structural precast concrete panels, post-tension concrete members, metal
deck, and structural steel connections
•
“Delegated Design” - Structure magazine, Sept. 2013, by CASE Guidelines
Committee
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DELEGATION OF DESIGN DEVELOPING ISSUES
• Performance-Based Specifications
• One commentator describes the difference between “design” specifications
and “performance” specifications this way: The design is what the owner
and design professional is responsible for, and the performance is what the
contractor is obligated to fulfill.
• The advantage, but also the risk, of performance specifications -- as
compared to prescriptive specifications -- is that it gives the contractor
flexibility in not only the means and methods, but also materials and
sometimes even “design.”
• The contractor, and more often the sub, is obligated to be sure to “conform”
to the performance criteria and the design intent.
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RISK MANAGEMENT FOR
DESIGN DELEGATION
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RISK MANAGEMENT
• Subs need to pay attention to the design documents
before they even bid on a job.
• Review the contract and subcontract carefully if their
scope does or may include delegated design elements.
• Make sure they are insured for all risks they are assuming.
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QUESTIONS?
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Contact information:
[email protected]
Website:
www.safranlaw.com
www.safranlaw.com/safranlawblog
Twitter:
@safranlaw
@safranlawBJS
Phone:
(919) 828-1396 / (800) 326-3372
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