Participants in the Design and Construction Process

• Author: Ross J. Altman
• Pages: 17-33

. OVERVIEW

A building or other structure is not an object simply purchased by a consumer

or produced by a single person or entity. The design and construction of a

project is a collaborative process requiring the talent, execution, and coordina-

tion of many different people and organizations. As the size, cost, complexity,

or unusual features of a project increase, the number of participants needed

to design and construct that project likely will increase as well. The  nan-

cial, technical, business, and regulatory challenges involved in even a small

commercial project demand the participation of many diverse participants.

Although each participant makes a separate contribution to the project, the

activities of one inextricably bear upon the performance of the others.

It should come as no surprise that assembling a construction transaction is

a complicated task. The interdependence of each member of the design and

construction process on the performance of the other members may cause dif-

 culties. Like any complex process, there is ample opportunity for failure,

breakdown, and dif culty along the way. Many project participants will not

have worked together previously and may not have worked on a project simi-

lar to the one for which they are retained. The participants may have different

2

Participants in the Design

and Construction Process

ROS S J. ALTMAN

C H A P T E R

17

18 C ON S T R U C T IO N L AW

policies and manners in which they conduct their business, and the policies

and manners of one may conict with those of the other participants. On inter-

national projects, there will be language barriers, multiple cultures, and the

practical difculties created by long distances and different time zones. Despite

such obstacles, those involved in the production of a project must be well orga-

nized and coordinated to deliver a project successfully. This book explores the

multitude of legal issues that arise out of a process that has collaboration as

its goal but that in practice often fosters disputes and controversy. To consider

such legal issues, however, it is rst necessary to understand the roles and

objectives of each of the typical participants in the design and construction

process.

. THE OWNER

The owner initiates the project. The owner furnishes the project site, is respon-

sible for satisfaction of certain regulatory requirements necessary to develop

and use the project site, and must pay for the development of the project. As

the person or entity producing the project, the owner is responsible for ensur-

ing that all activities involved in the delivery of the project are performed.

Many of those activities are well beyond the capability of the typical owner,

however, and are delegated to third parties who have the skill, experience, and

manpower that the owner may not possess.

There are many different types of owners. Some owners are skilled and

possess prior experience with the design and construction process. Other own-

ers may undertake a project only once. Issues that are of particular importance

to one owner may not be particularly meaningful to another; cost concerns are

paramount to many owners, while other owners are more exible with respect

to cost when certain time requirements are satised. The manner in which a

project is delivered and the allocation of responsibilities among the participants

to the project can be inuenced signicantly by the various characteristics of

the owner.

Whether the owner is a public or private entity will affect greatly many

fundamental decisions about the delivery of the project. Public owners, such

as federal, state, and local governments, are obligated to procure and manage

construction projects pursuant to a statutory and regulatory framework.1 Pub-

lic entities are not free to engage in innovative project delivery methodologies,

1. Public entities must comply with a complex set of procurement statutes when awarding a

contract, and then only enter into contracts that conform to applicable regulations.