Section 1.63 Design Responsibility

• Library: Construction Law 2016 Supp

M. (§1.63) Design Responsibility

Changes have occurred in the last three decades or so in the way parties do business with one another on construction projects. Traditional relationships between owner and architect, owner and general contractor, and general contractor and subcontractor have been materially altered. In the traditional relationship, the architect/engineer was responsible for the design, and the general contractor and subcontractors were left to use their means and methods for actual construction. In recent years, these traditional relationships, while not having been totally supplanted, have been supplemented by design/build operations and by construction managers. The design/build concept offers the potential advantage of having one entity supplying the design and performing the construction. The drawback to the design/build concept is the absence of an owner’s representative to advise the owner on the performance and progress of the project. The design/build concept is thoroughly discussed in Chapter 3 of this deskbook. A brief reference is made here principally to serve as a red flag that there can be significant design/build contractual issues and risks in the traditional owner-general contractor relationship and in the general contractor-subcontractor relationship.

General contractors and subcontractors are finding that they are becoming, sometimes involuntarily, part of the design process. The design responsibility is being thrust upon them through various forms of contract language.

Contractors, who typically are not design professionals and who do not carry design errors and omissions insurance, need to be highly sensitive to attempts to shift design responsibility to them for such items as window treatments, curtain walls, drywall installation, and equipment design. The problem was exacerbated by the 1981 Hyatt Regency Hotel disaster in Kansas City where more than 200 people were killed or injured.

Although most general contractors and subcontractors traditionally do not have design responsibility, enormous problems arise when design professionals or owners attempt to transfer certain portions of this responsibility to the unlicensed specialty contractor. Sometimes architects and engineers will require subcontractors to design certain elements of the job or specify that shop drawings be stamped by either a licensed professional on the subcontractor’s staff or by a third party professional. Typical language directing subcontractors...