Managing Design Professional Consultants

AuthorBy Barry J. Miller, Jonathon Korinko, and Robynne Thaxton
THE CONSTRUCTION LAWYER 13Volume 42 Issue 1 2022
Published in
The Construction Lawyer
, Volume 41, Number 4. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Managing Design Professional
Consultants: Methods, Challenges,
and Potential Liabilities
By Barry J. Miller, Jonathon Korinko, and Robynne Thaxton
I. “Lean Construction”:
An Increasingly Utilized
Approach to Unifying
Design and Construction
It is impossible to discuss the
management of design profes-
sionals without recognizing the
professional status of architects
and engineers. The practice of
architecture and engineering is
regulated by each state and is
limited to those individuals who
possess the requisite education,
experience, and certification.
This professional status makes
the independent management
of design professionals some-
what difcult and problematic.
It is expected that the design
professional will perform his
or her professional services in
accordance with the exercise
of their professional judgment
and, at a minimum, to a profes-
sional standard—that exercised
by similarly situated design pro-
fessionals. These professional
services can be generally described as the development
of the design for physical improvements, the preparation
of the documents that describe this design that will then be
used by those charged with the responsibility to construct
the physical improvement, interpreting and explaining
those documents when required, and evaluating the con-
formance of the completed physical improvement to the
documents that describe the design.
Traditionally, the design professional has been “man-
aged” by their client through contractual provisions that
delineate the specic services and expectations associated
with those services related to achieving the client’s over-
all cost, time, and quality goals. Increasingly, however,
the construction industry is recognizing that the sepa-
ration of design activities from construction activities
injects unacceptable levels of inefciencies into the over-
all design and building process. To combine the benets
of both design professional and constructor expertise at
the early stages of project development, alternative forms
of project delivery have emerged. These alternate project
delivery methodologies, like Construction Management
at-Risk and Design-Build, attempt to provide construc-
tion expertise during the design processes and eliminate
potential excessive initial cost and inefciencies associated
with incomplete or confusing design documents. None-
theless, there are still inefciencies that create unnecessary
economic waste in the overall design and building process.
The use of Construction Management at-Risk still
retains elements of design and construction separation.
The process of design followed by evaluation of design
and pricing of design (whether at the end of each design
stage or the completion of the entire design process) is
inefcient. As a result, major consumers of the construc-
tion industry are mandating the use of lean construction
techniques to reduce overall cost and time and to improve
the quality and the ultimate value of the completed physi
cal improvement. Increasingly, the construction industry
has embraced these lean construction techniques to
capture the potential benets they promise. Lean con-
struction techniques challenge conventional project
delivery approaches by recognizing that the design and
construction stages should be cooperative, collaborative,
and interrelated. This requires all participants—owners,
design professionals, and constructors—to cooperate and
interrelate their respective expertise into areas previously
reserved to the specic individual services of other par-
ticipants. This level of coordination and interrelationship
creates both management and liability issues for the design
A. Principles of Lean Construction
Lean construction is lean production theory1 adapted
to the construction industry that advances the goals of
decreasing inefciencies, time, effort, and cost through the
integration of project responsibilities and collaboration
among all project participants. Lean construction “chal-
lenges the generally accepted belief that there are always
trade-offs between time, cost, and quality.”
The funda
mentals of lean construction3 are:
Value: An intense focus on understanding the value
proposition from the customer’s perspective. In other
words, what is important to the customer.
Barry J. Mi ller
Jonathon Korinko
Robynne Thaxton

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