The Design Team's Role and Contracts

AuthorCarol J. Patterson - Ross J. Altman - Stephen A. Hess - Allen Overcash
Pages143-196
CHAPTER
143
6
.01 IntroductIon
Early in the development of any project, the owner must engage design profes-
sionals to produce the design and construction documents that will become a
road map for the execution of the project. This chapter discusses the role and
responsibilities of the design team and the legal framework related to the per-
formance of design services. As discussed in prior chapters of this book, there
are a number of different contractual relationships and delivery methods for
construction projects that have an impact on the role of the design team mem-
bers and the terms of their respective contracts. This chapter focuses on the
typical Design-Bid-Build project, which is the most common delivery method.
With this approach, an owner generally retains an architect under one prime
contract and retains a contractor under a separate prime contract. While it is
not uncommon to draft custom owner–architect agreements tailored to a spe-
cic project, for simplicity purposes, references will be made in this chapter to
the approach taken to a variety of issues in the widely used owner–architect
The Design Teams Role
and Contracts
CAROL J. PATTERSON AND TIMOTHY F. HEGARTY
pat54645_01_b01_001-282.indd 143 6/28/19 2:04 PM
CONSTRUCTION LAW
144
template, AIA Document B101–2017, Standard Form of Agreement between
Owner and Architect (AIA–B101).1
This section describes the different kinds of design professionals who con-
tribute to the construction process, the various elements of the design process,
and a design professional’s traditional role in a Design-Bid-Build project. Section
6.02 provides an overview of the regulation of design professionals, and Sec-
tion 6.03 discusses the variety of building codes and related regulations that
govern construction. Section 6.04 focuses on standards of care in the design
professional’s practice. Section 6.05 describes the process by which a partic-
ular design is implemented through the construction process. The remaining
sections, 6.06 through 6.09, describe specic portions of the design profession-
al’s agreement with the owner.
A. Overview of the Contractual Relationship among Parties and General
Allocation of Design Function
The design team has the primary obligation for performing the necessary
design services required for the project. Depending on timing, the owner’s
related responsibilities vary, but, at a minimum, typically include furnishing
the project site and basic information about the project parameters and paying
for the design and construction. The contractor’s role is essentially to build the
project in accordance with the plans and specications. Accordingly, during the
design phase, the contractor’s role is generally very limited, unless a portion
of the project expressly delineates performance specications in the contract
documents (addressed later in the chapter). This does not mean that the con-
tractor has no role. Indeed, the earlier the contractor is retained, the greater the
likelihood that the owner may require the contractor to review and comment
on the design documents to advise on practical issues related to feasibility of
construction in accordance with the owner’s budget and schedule. In addition,
the contract documents may require the contractor to provide shop drawings
that develop implementation details for certain components of the work.
1. As referenced in Chapter 5, the AIA (American Institute of Architects) publishes a wide
range of contracts for projects of all types, including owner-architect, owner-contractor, own-
er-construction management and design-build just to name a few. These are template documents
and are carefully drafted to describe the services, rights, and responsibilities of each party to
the agreement. These documents are periodically updated to reect changes in the design and
construction industry as well as corresponding developments in the law. However, the parties
involved in a particular project often decide that the forms require revision to correctly document
their mutual agreement.
pat54645_01_b01_001-282.indd 144 6/28/19 2:04 PM
The Design Team’s Role and Contracts 145
B. The Role of the Owner and Owner’s Consultants with Respect
toDesign
Primary responsibilities of the owner include providing necessary information
concerning the owner’s objectives, including functional and aesthetic require-
ments, schedule, budget, and site-related constraints necessary to develop a
program for the project. On many projects, this may be an ongoing process,
because the owner may not have all of this information prior to engaging the
architect or engineer. Moreover, it is common for an owner to acquire property
with site-related issues before hiring the design team. In those situations, the
owner will often directly retain a number of different consultants to address
these concerns. These consultants may perform services and provide informa-
tion related to issues such as zoning, site/civil engineering, environmental,
geotechnical, and trafc concerns, all of which involve specialized knowledge
outside the capability of most architects. As discussed in more detail later in
the chapter, this is a material issue from a liability perspective because those
consultants are in contractual privity with the owner, and the owner furnishes
their work product to other members of the design team. It is possible the
owner may require the architect to retain one or more of these consultants to
consolidate responsibility under one agreement.
C. The Design Professional Team
Under traditional Design-Bid-Build procurement, the owner retains the archi-
tect under a prime agreement, and the architect, in turn, typically enters into
subconsultant agreements with a variety of consultants, including those with
engineering and other specialized design disciplines. Many agreements provide
that if the architect retains those consultants, the architect is responsible for
their services; however, some agreements recognize that the architect’s knowl-
edge is limited to its discipline and expressly provide that the architect may
rely on the technical expertise of its consultants and will not be responsible
for their errors or omissions. This practice varies depending on the geographic
location of the project and on the knowledge and expertise of the owner. For
example, some more experienced owners prefer to hold all the consultants’
contracts directly. Alternatively, the owner may retain the architect under one
prime agreement and separately retain all or certain other design consultants
pursuant to separate prime agreements. In those situations, the architect is not
responsible for the work of these consultants. For example, AIA–B101, section
3.1.2, denes the architect’s responsibilities related to the owner’s consultants
as follows:
pat54645_01_b01_001-282.indd 145 6/28/19 2:04 PM

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT