Category Archives: Design Professionals

California Contractor Tests the Bounds of Job Order Contracting

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Garret Murai | California Construction Law Blog

Most contractors have heard of design-bid-build, design-build, construction manager at risk, and even public private partnerships, various project delivery methods, which, at their heart, focus on balancing the interests of the various parties involved in a construction project, from owners, to design professionals, to contractors. There’s one project delivery method you may not be as familiar with though: Job Order Contracting, also known by its acronym JOC.

JOC contracting is a project delivery method used on public works projects and has been authorized to be used by California K-12 school districts, community colleges, CalState universities, and the Judicial Council of California, which, among other things, is responsible for the construction of California state courts. It is intended to be used on smaller, independent, long-horizon project typically involving maintenance, repair and refurbishment. Think periodic maintenance of facilities.

JOC contracts are administered by public entities issuing a request for proposals. The public entity then awards a JOC contract to the lowest responsible bidder. The lowest responsible bidder then enters into a JOC contract with the public entity. JOC contracts typically have a duration of one (1) year and are limited to a total construction value of $4.9 million increased annually based on the Consumer Price Index. When entering into a JOC contract, a JOC contractor agrees to perform work at prices set forth in a Construction Task Catalog also known as a unit price book which includes current local labor, material and equipment costs. Unit prices are then adjusted by a “bid adjustment factor” based on the JOC contractor’s bid. When work is needed, the public entity will then issue a job order to the JOC contractor.

The next case, Los Angeles Unified School District v. Torres Construction Corp., Case No. B291940 (October 26, 2020), 2nd District Court of Appeal, involved a JOC contract, a JOC contractor who charged rates higher than those specified in the unit price book, and the JOC contractor’s defenses against claims by the public entity that it had overcharged for its work.

The Torres Case

Torres Construction Corp. was awarded a JOC contract by the Los Angeles Unified School District. The JOC contract included a Construction Task Catalog with unit prices as well as general conditions. Under the general conditions, after a job order is issued by LAUSD, Torres and LAUSD were to participate in a “joint scope meeting” from which the parties would develop a detailed scope of work. LAUSD would then issue a request for proposals to Torres who would prepare a “job order proposal” setting forth the cost of performing the work in accordance with the unit prices set forth in the Construction Task Catalog. Once approved, the job order proposal becomes a part of the JOC contract.

Between 2005 and 2008, Torres performed work on five projects under the JOC contract involving the installation of kitchen equipment and electrical upgrades. In 2011, LAUSD audited Torres’ project files as it was permitted to do under the JOC contract. Under the JOC contract, LAUSD was permitted to conduct an audit for period of up to four (4) years from the date a notice of completion was recorded. If the audit revealed overpricing or overcharges in excess of one percent (1%) of the total contract amount, then, an adjustment would be made equal to the overpricing or overcharging and LAUSD would be entitled to be reimbursed for the cost of the audit. The audit performed by LAUSD revealed substantial irregularities in the amounts charged by Torres, specifically, Torres did not supply equipment specified in its job order proposals, did not use pricing in line with unit bid pricing in the Construction Task Catalog, and did not provide the services specified in its job order proposals.

In 2012, LAUSD filed suit against Torres and its performance bond surety Western Surety Company. While the case was pending, LAUSD filed a motion for summary judgment on certain of the job order proposals which it prevailed on. As to other job order proposals, the trial court granted LAUSD’s motion for directed verdict following trial at the close of evidence. And, finally, as to the final job order proposals, the jury found in favor of LAUSD, and the trial court later awarded LAUSD prejudgment interest and attorney’s fees.

Torres appealed.

The Appeal

On appeal to the 2nd District Court of Appeal, Torres made a number of arguments challenging the trial court’s granting of LAUSD’s motion for summary adjudication, LAUSD’s directed verdict, and the jury verdict. Among other things, Torres argued:

  1. The JOC contract, because it required that job order proposals be submitted after-the-fact, was not an enforceable contract but merely an agreement to negotiate.
  2. The JOC statute required that LAUSD obtain an estimate so that it could compare Torres’ job order proposal with the estimate, and because LAUSD failed to obtain an estimate, no contract was formed because LAUSD failed to satisfy a condition precedent to entering into a contract.
  3. By accepting Torres’ job order proposals, LAUSD waived its right to claim that Torres breached the pricing provisions of the JOC contract.

A. JOC Contract: Enforceable Contract or Mere Agreement to Negotiate

As to the first issue, whether the JOC contract was an enforceable contract or merely an agreement to negotiate, the Court of Appeal held that the JOC contract was an enforceable contract not merely an agreement to negotiate, because it contained “every key term of future job orders except one: the Scope of Work for any projects which LAUSD would assign to Torres.”

Further, held the Court of Appeal, as to the one key term not negotiated, the scope of work, a scope of work was ultimately agreed to by the parties after Torres submitted and LAUSD approved Torres’ job order proposals:

LAUSD is not suing on a Scope of Work that never materialized. There is no claim that the required Scope of Work for each job order was not established as required by the General Conditions of the JOCs. Under the General Conditions, once the Scope of Work is properly established, LAUSD issues its RFP, and the contractor is required to respond with a proposal which prices the work using the applicable formulas in the General Conditions. This is arithmetic, not negotiations.

B. LAUSD’s Failure to Obtain an Estimate: Failure to Satisfy a Condition Precedent or Not

Under the JOC statute, “[I]n order to prevent fraud, waste, and abuse,” a K-12 school district using a JOC project delivery method is required to “[p]repare for individual job order developed under a job order contract an independent unified school district estimate.” The estimate it to be “prepared prior to the receipt of the contractor’s offer to perform work” and is supposed to be “compared to the contractor’s proposed price to determine the reasonableness of that price before issuance of any job order.”

According to Torres, the statutory requirement that LAUSD obtain an estimate “prior to” receipt of Torres’ job order proposal was a condition precedent to entering into an enforceable contract, and because LAUSD failed to obtain an estimate “prior to” receipt of Torres job order proposal, the JOC contract was unenforceable.

The Court of Appeal disagreed finding that “[t]here is no language in the statute expressly conditioning a contractor’s duty to prepare a correctly priced proposal on LAUSD obtaining an independent estimate.”

Note: While I don’t necessary disagree with the Court’s conclusion that obtaining an estimate is not a condition precedent, I’m also not quite sure that I see the Court’s logic here, since the condition precedent argued by Torres’ is not its duty to prepare a correctly priced proposal, but rather LAUSD’s duty to obtain an estimate before receipt of Torres’ job order proposal as stated in the JOC statute (i.e., “prior to”).

C. Acceptance of Torres’ Job Order Proposals: Waiver by LAUSD of the Pricing Provisions of the JOC Contract or Not

Finally, Torres argued that by accepting Torres’ job order proposals, LAUSD waived the pricing provisions of the JOC contract even if the pricing contained in the job order proposals were at variance with the pricing provisions of the JOC contract. Again, the Court of Appeal disagreed.

First, the Court of Appeal pointed out, the JOC contract includes an anti-waiver provision which provided that:

No action or failure to act by [LAUSD] shall constitute a waiver of a right, remedy, or duty afforded to [LAUSD] under the Contract Documents, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed to in writing.

Second, the Court of Appeal pointed out, for there to have been a waiver, LAUSD would have had to have waived two rights, the right to have a proposal prepared by Torres in accordance with the JOC contract, and the right to audit Torres’ project files and recover overcharges:

Further, in order for appellants to prevail, LAUSD would have to have waived two rights: 1) the right to have a proposal prepared in accordance with the pricing formulas; and 2) the right to later audit the job order and recover overcharges. Appellants have not pointed to any admissible evidence showing that LAUSD personnel were aware that Torres’s proposals violated the General Conditions pricing formulas or that LAUSD expressly relinquished the right to require those formulas. Appellants point to the conduct of LAUSD personnel in approving and signing the job orders. Even assuming for the sake of argument that signing a job order without checking for pricing conformity could be viewed as conduct inconsistent with an intent to enforce the General Conditions pricing formula and that such waiver was not prohibited by the express terms of the anti-waiver provision, this conduct would only be inconsistent with an intent to enforce the pricing formulas through the job order issuance process. The conduct is not inconsistent with a belief that a subsequent audit could and would make a compliance determination and that any overcharges could be recovered. Thus, for waiver purposes, LAUSD’s conduct is not inconsistent with an intent to enforce the pricing formulas.

Finally, the Court of Appeal held that permitting a waiver would be inconsistent with the JOC process “by removing the requirement that a contractor follow the pricing formulas in the General Conditions in preparing its proposal.”

Conclusion

So, there you have it. A broad overview of the JOC project delivery method, which, unlike other kinds of project delivery methods, essentially includes two different proposal mechanisms, one when a contractor bids on a request for proposals, and another when a JOC contractor bids on a specific project, and one Appellate Court’s view of the application of contractual principals to that project delivery method.

Two Wrongs Don’t Make a Right: Unlicensed Contractors Can Pursue Designers for Negligence

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Anna-Bryce Hobson and Brian M. Rowlson | Buildsmart

The North Carolina Court of Appeals recently determined that a builder who fails to comply with state licensing requirements may still pursue a negligence claim against design professionals. In Wright Construction Services, Inc. v. The Hard Art Studio, PLLC, the owner contracted with architecture firm Olive Architecture to develop plans for a mixed-use complex in Raleigh, North Carolina. Olive, in turn, contracted with Collins Structural Consulting and Scott A. Collins (the “Collins defendants”) to provide structural engineering work.

The owner directed Olive to solicit bids for the project, and Wright Construction Services, Inc. submitted a bid for the work. In its initial call with the owner, Wright explained that it could timely complete the work but did not yet have a general contracting license. Despite Wright not having its license, the owner still engaged Wright as the general contractor. Wright obtained a North Carolina unlimited general contracting license a few months later.

The project ultimately experienced a host of delays stemming from problems with the drawings and “issues obtaining constructible designs.” The owner terminated Olive and hired the Hard Art Studio, PLLC. Once on the project, Hard “acknowledged numerous design issues that would prevent [Wright] from completing construction” and recommended that work stop until the design issues were resolved. The owner instead terminated Wright for failure to complete its work on time.

Wright brought suit against Hard, the Collins defendants, and other designers on the project (collectively the “defendants”) for breach of their professional duties of care as architects and engineers. The defendants argued that Wright’s claims were barred by Wright’s own failure to obtain the necessary general contracting license before bidding on the project in violation of N.C. Gen. Stat §§ 87-1 et seq. The defendant-designers contended that Wright’s failure to timely obtain a license barred its ability to pursue claims for negligent design services because “contracts entered into by unlicensed construction contractors, in violation [of [a] licensing statute], [are] unenforceable by [the unlicensed] contractor.”

Wright countered that its suit was not based on the parties’ contract; rather, it was based on the defendants’ professional negligence. Regardless of its failure to have the necessary license at the time of contracting, Wright argued that architects and engineers are still required to uphold their professional duty to provide constructible designs that will ensure the “parties who reasonably rely on their work, [including their peers and their clients,] will not be injured.” In other words, engineers and architects are expected to exercise due care because their clients and peers on a project rely on a designer’s knowledge and expertise, and a failure to exercise such care amounts to negligence regardless of a party’s licensure status.

On appeal, the court determined that two wrongs don’t make a right when it comes to both a contractor and a design professional compromising the integrity of a single construction project. The court pointed out that construction projects have multiple participants, each of whom owe differing responsibilities to each other and their clients. For example, when an engineer or architect fails to ensure that the “parties who reasonably rely on their work will not be injured,” they breach their duty and should be held responsible for damages stemming from their failed professional performance. Likewise, contractors have a responsibility to obtain the proper license before bidding a project to ensure they are authorized to perform the work. If a contractor doesn’t obtain the necessary license it, too, should be held responsible. But should Wright, who violated a statute meant to “protect the public from incompetent builders,” still be able to pursue claims against the defendants for their own violation of laws also meant to protect the public from negligent design work?

The court ultimately found that the “licensure defense” raised by the defendants did not apply to the negligence claims brought against them by Wright. Why? Because “[a]pplying the license defense to these types of . . . claims would undermine [the purpose of the defense itself] – it would shield architects and engineers from responsibility for their failures to exercise due care” all because the contractor similarly failed to comply with its own statutory duty to the public. In the end, the public gains nothing from barring these types of direct claims as between contractors and design professionals. The court did emphasize that its narrow decision only addressed claims brought by unlicensed contractors based on a designer’s negligence.

This case emphasizes three key takeaways for contractors and designers:

  1. Contractors should ensure they comply with state licensing laws before bidding a project.
  2. Designers should note when contractors performing work on their projects obtain the necessary licenses. It could be useful information down the road.
  3. In some states, a contractor’s failure to obtain a license does not bar it from bringing negligence claims against designers.

Designers and contractors alike should seek advice of counsel when deciding how to enforce their rights against each other. It could mean the difference between recovery and mutual reprimand.

Mechanic’s Liens For Design Professionals: A Powerful Payment Collection Tool

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Christian Dewhurst and Timothy Fandrey | Gray Reed

In these unprecedented times, every bit of revenue is critical to the continued operation of nearly every business operating within the construction industry. Fortunately, there are a myriad of remedies to aide collection efforts. Perhaps the most commonly discussed remedy is the mechanic’s lien provided by Chapter 53 of the Texas Property Code Chapter.

Mechanic’s liens are most frequently used by contractors and suppliers to obtain payment security for the valuable labor and materials that they furnish to a construction project. In Texas, unlike many other states, design professionals are also given the right to lien for certain professional services that they perform for the project. In today’s uncertain climate where collection of money for valuable design services performed is a concern, the lien provides the design professional the opportunity to secure payment.

Like their contractor counterparts, design professionals must satisfy certain requirements to maintain and perfect a mechanic’s lien in Texas.

  1. The lien for professional services is limited to architects, engineers and surveyors.
  2. The types of professional services for which the property can be liened are limited to the preparation of a plan or plat in the case of architects and engineers, and the conducting of a survey in the case of a surveyor.
  3. The design professionals must be in privity of contract with the owner or the owner’s agent.

Thus, it appears that sub-consultants are unable to lien. Given the requirement of direct privity requirement, lien perfection is relatively straight-forward. The lien affidavit must simply be filed by the 15th day of the fourth month after the design contract is completed, terminated or abandoned.

Under many standard construction industry forms, including the American Institute of Architects and the Engineers Joint Contract Documents Committee, architects and engineers are required to perform construction administrative services, including review of submittals and change orders, and periodic inspections of the project site. These are no doubt valuable services, but cannot be liened unless there is a change to the plan or plat. Architects and engineers may, however, lien for construction supervision services because such services are considered “labor” and thus can be liened.

Despite the existence of this powerful, albeit somewhat limited, right to lien, engineers and architects do not file liens with the frequency of contractors and suppliers. One reason is that the cost of design services relative to the cost of construction is typically small. Accordingly, design professionals may not often find it necessary to secure payment through a lien. Relatedly, design professionals generally perform the bulk of their lienable services at the beginning of the project during a period before large amounts of project funds have been spent on other items, including construction and payment is therefore less frequently an issue. Further, design professionals that are able to lien have contractual privity with the project owner and merely use a lien as payment security. By contrast, subcontractors and suppliers typically do not have contracts with the project owner and can also be subject to a contingent payment clause in their contracts with the general contractor. A lien provides the subcontractor not only payment security, but also functions as a powerful method of extracting payment from the owner that has not made payment to the general contractor.

Given the changing payment landscape in the midst of the COVID-19 pandemic, architects, engineers and surveyors should consider giving their lien rights a first or second look. It is a powerful tool that can give the design professional security to perform work on credit to a project owner.

The Designer’s Pre-bid Standard Of Care In A Design-Build Project

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Joshua A. Morehouse | Peckar & Abrahmson

Design-build continues to grow in popularity as a project delivery vehicle. Yet this popularity brings its own challenges. Design-build alters the traditional division of duties between designers, builders, and owners. Among the most obvious of these alterations is the transfer of the designer’s obligations from the owner to the design-builder.  Though it seems simple on the surface, this transfer creates new questions regarding the allocation of risk among the parties.

One such question arises when a design-builder prepares its bid for a project. The design-builder virtually always bases its bid on a preliminary design, which is itself based on the owner’s request for proposals (RFP). All parties recognize that the preliminary design will change over the course of the project. But while some design change is expected, the design-builder must be able to draw a reasonably accurate bid from this preliminary design. In doing so, the design-builder relies upon the designer’s professional skill and experience. If the designer fails to exercise the requisite skill, it can cause the design-builder to significantly under-bid the project. In such a case, the design-builder can lose a substantial amount of money.

To mitigate this risk, the law holds designers liable for a failure to exercise the reasonable care typically expected of similar professionals in similar circumstances. But this standard is malleable, and courts have had difficulty assessing what care is “reasonable” in the pre-bid context. As such, those undertaking a design-build contract should be aware of the risk of design change and should strive to distribute it appropriately in their contracts.

What is the designer’s duty of care in a design-build contract?

Outside of the design-build context, the allocation of risk between the designer, builder, and owner relating to the design stage of a project is fairly well-established, though each state’s law may vary. Generally, in preparing its drawings for the owner, the designer must exercise the care, skill, and diligence reasonably expected of members of its profession under similar circumstances (often referred to as “reasonable care”).  The owner then warrants to the builder that the drawings, if complied with, will create a product acceptable to the owner. The builder typically returns this warranty with its own: that it will construct the project according to the drawings in a reasonably workmanlike manner. The owner can thus rely on the builder to build according to the drawings in a workmanlike manner, while the builder need not second-guess the drawings provided to it by the owner. And the designer can be comfortable that its exercise of reasonable care in preparing the drawings insulates it from a claim by the owner.

In the relatively recent world of design-build, though, this allocation is less clear. The designer now owes its duties to the design-builder instead of the owner. This fundamentally alters the relationship between the designer and its principal. While owners usually rely heavily upon designers to act as their representatives and oversee a design-bid-build project, the opposite occurs in a design-build project. The design-builder oversees the designer instead.

Yet despite this, the design-builder still relies heavily on the designer to exercise its particular technical skill in preparing drawings for the project. In fact, designers are often sought out specifically because they possess specialized technical knowledge that the design-builder lacks. Most courts to address a designer’s duty to a design-builder recognize as much. In the absence of specific contractual language, then, designers must generally discharge their duties with the same reasonable care that would be required were the designer employed by an owner.

How does this duty of care apply in the pre-bid context?

Nowhere is a design-builder’s reliance on its designer more pronounced than in the pre-bid stage of a project.  The design-builder must make quantity, cost, and schedule assumptions based upon drawings from the designer in order to bid a project. This bid is typically prepared with strict time and monetary limitations. Hence a designer will prepare pre-bid drawings that are often only around 30% complete. But, even though the design-builder is using incomplete drawings, the drawings are intended to permit a reasonably accurate bid. Unsurprisingly, this situation creates controversy.

The fact that designers must exercise reasonable care does little to solve the problem. The question of what constitutes “reasonable care” is difficult to analyze in the simplest of construction contracts. Here, that same question arises in the novel context of a design-build contract. And it appears at a stage in that contract in which the design—as though drawn by Schrödinger himself—is expected to be simultaneously incomplete and yet complete enough to permit a reasonably accurate bid. The parties can be forgiven for disagreeing upon what level of care is “reasonable” under these circumstances.

Courts too have difficulty making this distinction. For example, the recent Massachusetts case of Middlesex Corporation v. Fay, Spofford, & Thorndike, Inc., SUCA201502592BLS1 (Mass. Super. June 28, 2019), had the court parsing particular specifications to determine whether design changes were due to initial design deficiencies or anticipated design development. The court ultimately appeared to draw a line between two groups of design changes. The design-builder could recover for those design changes that were the product of miscalculations or misinterpretations of the RFP. But the design-builder could not recover when the design failed to show a level of detail beyond that generally expected in pre-bid drawings.

How can the parties avoid these disputes?

Middlesex Corporation shows that it can be difficult to determine when a designer exercises reasonable care in the pre-bid context. And having a factfinder make that determination after the expense of litigation likely involves costs and risks unpalatable to both designers and design-builders. To that end, the most efficient way to handle liability for design development is to apportion the parties’ risk through a pre-bid design subcontract. Below are a few types of contractual provisions that may prove useful in doing so.

Performance Requirements

Parties to a design subcontract are generally free to agree that a design will achieve a specific result. Of course, designers will usually be loathe to guarantee that the end product will perform in a certain way. But a designer may be willing to guarantee that its drawings will comply with the RFP or with particular engineering or architectural principles. Indeed, design-builders may be hesitant to contract with a designer who is unwilling to guarantee that its preliminary design will meet the RFP.

Cost Overrun Provisions

Several reported cases contain examples of how design-builders share risk for cost overruns with designers. For instance, in CRS Sirrine, Inc. v. Dravo Corp., 445 S.E.2d 782 (1994), the designer would not be liable for the first $750,000 of cost overruns on the project.  Past that point, the designer was liable for cost overruns resulting from its own errors and omissions. A similar provision was at issue in Walsh/Granite JV v. HDR Engineering, Inc., Civ. A. No. 17-558 (W.D. Pa. Mar. 7, 2019). There, the parties agreed to a quantity matrix for materials. If the materials exceeded that matrix, the design-builder was to establish a contingency amount of $1,000,000 to absorb those overruns. Only once that fund was empty could the designer be held liable for quantity overruns for materials listed in the matrix.

Limitations on Liability

Finally, designers and design-builders can elect to cap the damages due under a design-build contract. Often this takes the form of a waiver of a specific form of damages, such as consequential or indirect damages. It may also appear in a numerical waiver, though—usually some multiple of the amount due in the design subcontract. Such waivers are often undesirable for the design-builder, however, as it is more exposed than the designer to substantial losses resulting from defective pre-bid drawings.

Conclusion

Even in the absence of a contractual provision, a designer owes a duty to a design-builder to perform its professional services with reasonable care. Should a designer fail to exercise this reasonable care, the design-builder can typically recover for its resultant costs. But the vagaries of what care is “reasonable” inject significant risk and uncertainty into this analysis. As such, all parties to the design-build process should strive to define the parties’ respective responsibilities for cost and quantity increases as thoroughly as possible through a pre-bid design contract.

Design-Assist Collaboration/Follow-Up Post

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John P. Ahlers | Ahlers Cressman & Sleight

Shortly after posting the blog article “Design-Assist an Ambiguous Term Causing Conflict in the Construction Industry,” I received an email from Brian Perlberg, the Executive Director and Senior Counsel for ConsensusDocs. He brought two ConsensusDocs forms to my attention:  ConsensusDocs 541 Design Assist Addendum and ConsensusDocs 300 Integrated Form of Agreement (IFOA). In the ConsensusDocs model of “design-assist,” the lead design professional retains design responsibility but benefits from input and consultation from the construction team during design development. By contrast, in the design-build project delivery method, the constructor assumes design responsibility and liability for either the entire project design (design-build) or just a component of the design (delegated design).

The ConsensusDocs 541 document goal is to provide “accurate information concerning program, quality, cost, constructability and schedule from all parties.” It provides a range of standard and optimal services during design development that essentially shifts the curve of selecting the construction manager (CM) and most importantly, special trade contractors, to much earlier in the process, perhaps as soon as the owner’s program is developed. This opens a world of possibilities for the design and construction team to collaborate early and often. The design professional, however, does not abdicate its design responsibility or authority in this process. The ultimate goal is to end the all-too-common wasteful cycle of design and redesign that is common in construction projects.[1]

The ConsensusDocs 541 explicitly states at §2.3: “[W]hile retaining overall responsibility for the project design, Design Professional shall work collaboratively with other members of the project team drawing on the respective expertise in order to achieve the project objectives.” Thus, to the extent design build trade packages or other delegated design may occur during the collaborative process, such shifting of responsibility is done explicitly in a collaborative and intentional fashion in ConsensusDocs 541. In other words, stated simply, if a contractor is to assume design responsibility, that design responsibility is explicitly and unequivocally delegated to the contractor so that there is no misunderstanding of when or if the design work is handed off.

Design-Assist is not IPD (Integrated Project Delivery —a multi-party contract in which the contractual risk is shared in a shared risk pool.) At §2.3, the ConsensusDocs 541 form affirmatively states: “[t]he Parties acknowledge this addendum is not an Integrated Project Delivery agreement or design build agreement and that each party remains responsible for its own errors, omissions or construction defects to the extent provided in the underlying agreements.”

The ConsensusDocs 300 provides a much deeper level of risk-reward sharing that includes contractual privity among the owner, design professional and constructor, a limitation of liability among the core group and a shared risk pool where the parties’ compensation rises and falls together with the success of the project, akin to IPD.

Comment: Design-Assist is an option for owners who wish to incorporate a collaborative design process into projects and the ConsensusDocs makes it clear that the design responsibility remains with the design professional unless components of the design are specifically delegated to the contractor. Using the phrase “design assist” without the clarification recommended in the ConsensusDocs 541, that the design professional retains overall responsibility for the project, can cause conflicts when design issues arise during construction.

[1] How Design-Assist Moves the Needle on Collaboration and How it Differs From Design-Build and IPD, Leon and Pearlberg Design Cost Data, January-February 2020.