John P. Ahlers | Ahlers Cressman & Sleight | October 31, 2019
“Design-Assist” is one of the recent cost-saving trends being touted for construction projects and, in particular, construction projects utilizing alternative procurement methods. If an internet search for the term, “design-assist” is made, the result will be numerous construction industry articles and white papers lauding “design-assist” as a recent cost-saving trend in construction procurement. From a legal perspective, however, the term “design-assist” is notably absent from court opinions and most state licensing laws. With the exception of the ConsensusDocs, few standard form contracts even include the term “design-assist” in their text.
The ConsensusDocs agreement provides examples of the Constructor’s obligations to perform “assisting activities” (the term “design-assist” is not used) and states that, notwithstanding the performance of such “assisting activities” by the Constructor, the responsibility of the design remains with the Designer unless otherwise stated in the Contract:
- Article 4.5 DESIGN PROFESSIONAL’S RESPONSIBIITIES The Designer shall furnish or provide all design and engineering services necessary to design the Project in accordance with the Owner’s objectives … the Designer shall draw upon the assistance of Constructor and others in developing the design, but the Designer shall retain overall responsibility for all design decisions….
- Article 4.6 CONSTRUCTOR’S RESPONSIBILITIES [T]he Constructor shall assist the Designer in the development of the Project Plan and Project Design but shall not provide professional services which constitute the practice of architecture or engineering unless the Constructor needs to provide such services in order to carry out its responsibilities … or unless specifically called for by the Contract Documents.
- Article 6.3.3 INTEGRATED DESIGN PRINCIPLES In order to achieve the Project objectives, the design process must occur in a collaborative manner, informed by the free-flow of accurate information concerning program, quality, cost, and schedule. While retaining overall responsibility for the Project design, the Designer must work collaboratively with the other members of the IPD Team, drawing on their respective expertise in order to achieve the Project objectives.[2]
- Design-assist contracting is a construction management method to improve quality and maintain cost. It is most commonly used when a specialty trade, fabrication, or building method requires a unique solution or set of trade skills. Design-assist contracting is best suited for design building or construction management at risk (CM@R) projects in which the architect and owner work with trades people, manufacturers, and subcontractors to develop a budget and project schedule for a unique solution, material, or construction application, such as reproducing historic windows or finishing plaster walls.[3]
Thus, without an accepted definition, the term “design-assist” is open to multiple interpretations and expectations within the industry. Allocation of design responsibility is a significant risk and hence, the use of undefined terms, such as the use of “design-assist” in contract documents creates unintended consequences for the participants in Design-Build, GCCM, Engineer-Procure-Construct (EPC) contracts where the term “design-assist” is used.
The term “assist” means to “give help to; aid.”[4] Clearly, design-assist does not encompass all design responsibilities on a given project. The demarcation as to when contractors, in assisting with design services “cross the line” and enter into professional territory is fuzzy. If a contractor is deemed to cross the threshold into professional territory, there are significant additional risks to the contractor:
- A contractor may likely be held to a higher standard than that which governs design professionals;
- A contractor will not, as a matter of public policy, be permitted to limit its liability for negligent acts because it is now subject to claims based on professional liability as well as contractual liability;
- A contractor risks criminal liability for unlicensed practice of engineering or architecture if performing professional services rather than working as a contractor; and
- Pursuant to the “professional acts” exclusion, coverage for professional liability is generally excluded under commercial general liability or other commercial liability policies.
Then the issue becomes how best to limit the liability of a contractor if the owner insists on using the term “design-assist.” If “design-assist” is going to be used in a contract, it should be defined, the scope of the Contractor should be clarified, and, if possible, the Contractor’s liability should be limited. For example,
Define/Defining the Contractor’s design-assist role:
- Using an electrical subcontractor as an example, the Contractor shall review the electrical design documents and specifications for any errors, inconsistencies, or omissions;
- Review of the electrical design documents and specifications for clarity and constructability to reduce the risk of field conflicts and changes to the Work;
- Coordination with the Design Professionals to identify routing and eliminate conflicts among the Work of other trades;
- Alternatively, if it is desired that the Subcontractor is responsible for the design, the Contract should clearly so state the responsibility that the Subcontractor is able to price its work accordingly.
The Subcontractor shall be responsible for addressing any questions which arise as to the interpretation of the design and as to the fulfillment of the Subcontract Agreement.
Clarify:
Another way to limit the design-assist obligations is to clarify specifically what the Subcontractor or Contractor’s role is as follows:
- The recommendations and advice of Contractor concerning modifications and alternatives shall be subject to review and approval of the Engineer.
Limit:
Finally, the Contractor should limit its liability for its role in the design. A suggestion:
- It is expressly recognized that Contractor is neither acting in the capacity of a licensed design professional nor assuming any design liability in its review of the design or collaboration on the constructability.
[1] This blog article is based on the Journal of American College of Construction Lawyers, Vol. 11, #1 Winter 2017, Joel D. Heusinger, “Ambiguity Breeds Conflict: The Importance of Defining ‘Design-Assist’ in the Construction Industry.”
[2] ConsensusDocs 300, Standard Multi-Party Integrated Project Delivery (IPD) Agreement (emphasis added).
[3] “The Basics of Design-Assist Contracting,” David Hart, AIA Best Practice (October 2007).
[4] New World Dictionary of American English, 83 (3d College Ed. 1991).