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Though the contract language may have been complex, the judge determined that the requirement to use steel ducts in this particular scenario was indeed documented in the construction contract. As a result, the contractor was found responsible for shouldering the extra cost of the remediation work. This case and others like it represent how contractors can be held liable, even if the delegator of the work approves the design. The bottom line for any project is that it must meet code requirements and all contract documents are to be read in conjunction with one another, not as independent / unrelated pieces, it is a tacit requirement that the complete assembly is engineered to meet the requisite loading criteria.
Industry Intel
The use of delegated design in construction, where a project’s design professional of record (DPR) assigns responsibility for a specific part of the design to the contractor, is on the rise throughout the industry. They are communication, communication and more communication that is clear, concise and non-compromising. The first step is the proper delegation of design responsibility and a well-defined scope of services within the SEOR’s initial engagement on the project. The Owner and the SEOR need to agree to what will be designed by the SEOR and what aspects of the project will be designed by SSEs. It continues with concept development, the preparation of the specifications and construction documents, and is followed by pre-bid and pre-construction conferences.
AWCI's Construction Dimensions Magazine
Government in 1980.[1] Mercury was contracted to build two barracks in Fort McClellan, Alabama. Mercury designed and built the ducts using fiberglass in areas above fire-resistant ceilings, but the Government contended that the ducts were required to be sheet metal in order to meet fire safety requirements. All this raises the question of who is responsible when there is a delegated design dispute or claim related to issues like design gaps, compliance, or performance. Kevin O’Beirne, PE, FCSI, CCS, CCCA is a professional engineer licensed in NY and PA with over 30 years of experience designing and constructing water and wastewater infrastructure for public and private clients. He is the engineering specifications manager for a global engineering and architecture design firm.
The Difference Between Delegated Design and Design Assist
As noted in Practice Tip – PT.37 Delegated Design and Shop Drawings, in most cases, it should only be the engineered aspects of the design which are delegated. The increasing complexity of design, however, can introduce uncertainties as to what is acceptable to be delegated and where one party’s responsibility ends and another’s begins. This feature is a part of "The Dotted Line" series, which takes an in-depth look at the complex legal landscape of the construction industry. If you would like to get the Lerch Bates team started on one of your projects, please click the button below to begin the process. Today we are going to talk about delegated design, and to a lesser degree, or maybe just on the periphery because I don’t know how we could avoid it, Design Assist, as well as the Spearin Doctrine.
Regardless, so went the debate, with the suggestion that if no engineer would sign off on the complete assembly a guardrail might need to be implemented. A large institutional project included guardrails comprised of miscellaneous metal posts with glass panels and wooden top rails. The roles of the architect, engineer, contractor, construction manager, trade contractors and suppliers should start to be defined as early as Design Development phase in accordance with what the overall intent to be established by the construction documents will dictate.
When considering the merits of delegated design versus design assist, it’s essential to weigh both the positive and negative aspects of each approach. Delegated design can expedite project timelines by leveraging the contractor’s expertise and streamlining decision-making processes. However, it also poses challenges such as potential miscommunication and increased liability for the contractor. Design assist, on the other hand, offers a comprehensive approach to addressing constructability issues and refining design details, enhancing the overall quality of the project. Yet, it may require additional time and resources to integrate specialized consultants into the project team.
Protection from design-related issues
Delegated Design is a useful means for the DPOR to make use of the economies offered by contractors and vendors for systems and elements where required performance can be defined and cost the primary basis of selection. On most construction projects, there are numerous examples of items where opportunities exist to economize by using proprietary system and coordinating the design with contractor means and methods without diminishing value of the project to the end user. The DPOR’s design effort may be reduced, but not eliminated by delegating design; the DPOR must still understand the demands for the delegated system, specify its performance, provide adequate basis of design information to the designer.
The DPOR must also review the design for contract conformance and integration with the work overall. It is crucial for the DPOR to understand how the delegated system needs to perform and what constraints are to be imposed on it. Performance specifications are different from the prescriptive specifications that are typically issued in construction documents when the work is completely designed. From the performance specifications, the contractor’s designer should be able to quickly and accurately understand what the delegated system needs to do and how it fits into the project as a whole. These requirements typically include the design loading and allowable response (deflection, etc.) of the system, design codes and standards (especially project-specific standards) and perhaps interfaces with other work.
In the design-assist process, a consultant specializing in the specific trade or system (such as building envelopes) is brought into the team. This consultant assists the DOR (aka Architect) in staying ahead of potential constructability issues and identifies key interfacing design details early on. By early on, I mean hopefully in schematic design phase to inform building envelope best practices. The design-assist contract is typically carried by the Architect, as opposed to the Delegated-Design contract that is held by the General Contractor or Subcontractor.
The owner, contractor, subcontractor and design team will all benefit from a non-controversial attitude with appreciation and acceptance of each other’s knowledge, expertise and experience. Design Assist is a collaborative process where the contractor joins the design team early in the project to provide input, expertise, and cost-related insights. In this approach, contractors’ perspectives are considered during the design phase, allowing them to offer valuable feedback on constructability, materials, and methods.
However, the process is not complete until the SSE’s submittals have been reviewed by the SEOR to confirm that the SSE’s interpretation of the design criteria is appropriate and acceptable, and the totality of the work is coordinated and complete. The purpose of delegated design is to improve the performance and economy of delegated systems. In my experience, both as a consultant for owners and design professionals, and as a specialty engineer preparing delegated design submittals, I have seen that the delegated design process can actually increase risk.
The goal is to enhance the design’s feasibility, cost-efficiency, and functionality, while still maintaining the architect’s creative vision. Owners are focused on the budget, schedule and increasingly on maintenance and operations. Having contractors participate in design decisions gives them a better understanding of the project and its goals, reducing the risk of a rocky construction process with schedule delays and cost overruns. Delegated design, though, shouldn't be confused with the methods a contractor uses to perform its work. As long as a contractor meets the requirements laid out in the plans and specifications — and as long as the contract doesn't state otherwise — then the construction company can use the building practices it deems necessary. This includes design changes incidental to the work such as moving a door frame a few inches.
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