{"id":902309,"date":"2024-02-21T15:13:38","date_gmt":"2024-02-21T22:13:38","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=902309"},"modified":"2024-02-21T15:13:41","modified_gmt":"2024-02-21T22:13:41","slug":"delegated-design-mitigating-the-risks","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/delegated-design-mitigating-the-risks\/","title":{"rendered":"Mitigating the Risks\u00a0of Delegated Design"},"content":{"rendered":"\n

Francisco Matta | HKA<\/a><\/p>\n\n\n\n

The use of delegated design<\/a> in construction, where a project\u2019s design professional of record (DPR) assigns responsibility for a specific part of the design to the contractor, is on the rise throughout the industry. This approach, historically limited in practice to a narrow set of specialized elements like steel stairs and fire sprinkler systems, is now being used for an ever-growing scope of specialties, from intricate excavations and sophisticated deep foundations to concrete systems, equipment, finishes, IT infrastructure, and much more.<\/p>\n\n\n\n

As delegated design becomes more commonly incorporated into design and construction processes, disputes regarding responsibility and liability are also bound to increase \u2014 making it critical for all stakeholders to understand and mitigate the inherent risks.<\/p>\n\n\n\n

The Pros and Pitfalls of Delegated Design<\/strong><\/p>\n\n\n\n

Delegated design is growing in popularity for good reason. When a portion of a project\u2019s design is delegated to a contractor, a specialized design professional is used to design the element according to the performance criteria set forth by the DPR. This highlights the core benefit of having specialized designers handle specialized design tasks that are best suited for their expertise.<\/p>\n\n\n\n

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\u201cAs delegated design becomes more commonly incorporated into design and construction processes, disputes regarding responsibility and liability are also bound to increase\u2026\u201d<\/p>\n<\/blockquote>\n\n\n\n

This is particularly valuable given that in today\u2019s world, it is neither realistic nor plausible for one architect or engineer to be an expert in every element of construction. The building industry is more complex than ever, and the rapid pace of innovation driving new construction methods and materials is only accelerating. Beyond leveraging the experience of carefully selected partners, strategically delegating design elements simultaneously enables the lead designer to concentrate on the building design and more holistically address the challenges of multi-faceted projects. <\/p>\n\n\n\n

Delegated design can also offer merit from a dollars and cents perspective. If a project budget will not allow sufficient time for the DPR to do the deep research required to design a specialized element, assigning the work to the contractor can be a more efficient approach.<\/p>\n\n\n\n

While delegated design can yield efficiencies, it can potentially cause design gaps and project delays at certain stages if it is not properly managed. Consider the example of a building where the design of a metal wall panel system is delegated to the contractor and the design of other cladding systems in the building is handled separately. The metal wall panel system and the additional cladding systems each meet their respective performance requirements, but it is later discovered that neither scope of work accounted for the necessary transitions between the systems, leaving the design incomplete.<\/p>\n\n\n\n

This is just one specific example of design gaps that can occur. Other potential design gaps may include things like transitions between delegated steel stairs and stair landings, the relationship between the delegated steel structure design and the rest of a wall or floor assembly\u2019s components, or the interface between a delegated IT infrastructure design and a building\u2019s general electrical systems.<\/p>\n\n\n\n

If gaps are identified during the design process, they can be addressed and rectified. However, depending on their nature, if they are identified during installation, they could cause unexpected delays. When these interfacing design gaps occur, work usually has to be paused while the designers address them. In addition to impacting the project\u2019s progress, these delays often result in claims and disputes.<\/p>\n\n\n\n

Responsibilities & Liability: Designers vs. Contractors<\/strong><\/p>\n\n\n\n

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. The lead designer? The contractor? It depends.<\/p>\n\n\n\n

As the professional tasked with design responsibility by the authorities, the DPR typically assumes all responsibility and professional liability for the project design given their role as the lead designer. This can be a gray area when it comes to delegated design. Does the contractor assume design responsibility and liability for the work it has been delegated, which is structured to meet the performance specifications documented by the DPR? Or does the risk continue to live with the DPR, who is responsible for detailing the performance criteria as well as ensuring the contractor\u2019s designs meet those requirements within the context of the larger project?  <\/p>\n\n\n\n

Delegated Design Case Study<\/em><\/strong><\/p>\n\n\n\n

As a licensed architect serving as an expert witness on disputes involving delegated design, I have seen outcomes fall both ways.<\/p>\n\n\n\n

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\u201cWhile delegated design can yield efficiencies, it can potentially cause design gaps and project delays at certain stages if it is not properly managed.\u201d<\/p>\n<\/blockquote>\n\n\n\n

One published case involved the appeal of Mercury Construction Corporation v. the U.S. Government in 1980.[1]<\/a> Mercury was contracted to build two barracks in Fort McClellan, Alabama. The project included the delegated design and subsequent installation of air ducts. 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.<\/p>\n\n\n\n

The Government ordered Mercury to either replace the fiberglass ducts with steel or install appropriate fire safety features. The construction firm did the latter but later demanded nearly $150,000 for the additional work, stating that the Government had approved fiberglass ducts as part of the system. The Government contended that as part of the delegated design, it did require steel ducts at these fire-rated assemblies, and thus, the approval did not alter this requirement. 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.<\/p>\n\n\n\n

The Importance of Contractual Language<\/em><\/strong><\/p>\n\n\n\n

Agreements that clearly delineate each party\u2019s responsibilities and the standards they must meet are, without question, essential for avoiding disputes related to delegated design. As stated by the American Institute of Architects (AIA), \u201cDelegated Design responsibilities should be expressly stated in an agreement.\u201d[2]<\/a> Their guidance continues to say:<\/p>\n\n\n\n

An agreement that includes delegated design services should include (1) the contractor\u2019s overall scope of work; (2) a clear statement regarding the delegated design responsibilities, including responsibility for the adequacy of the performance criteria and the design responsibilities for each project participant; (3) how design information will be exchanged and reviewed, including if, how, and when digital models will be used and shared[;] (4) the contractor\u2019s compensation[;] and (5) requirements for professional liability insurance to be obtained by the contractor.[3]<\/a><\/em><\/p>\n\n\n\n

Further, AIA Document A201 \u2013 2017, \u201cGeneral Conditions of the Contract for Construction,\u201d includes language in Section 3.12.10.1 that offers more specific recommendations for the delegated design portion of construction contracts. Key points include:<\/p>\n\n\n\n