The Design Undertaking

AuthorStephen A. Hess and Lawrence C. Melton
TheD esig nUnde rtak ing 131
The function of this chapter is to explain the design process from a legal per-
spective with an examination of the sources of rights and responsibilities
of each of the parties who participate in or bene t from the design process.
Although there are obvious participants who bear most of the design responsi-
bility (architects and engineers, in particular), the design process is not exclu-
sively within the province of architects and engineers but instead is shared to
some degree by many of the other participants as well.
Section 6.01 describes the different kinds of design professionals who con-
tribute to the construction process, the various elements of the design process,
and the professionals’ traditional roles in a Design-Bid-Build project. Section 6.02
provides an overview of the regulation of design professionals, and Section
6.03 discusses the variety of building codes and related regulations that govern
construction. Section 6.04 introduces the reader to standards of care in the
design professional’s practice. Section 6.05 concludes this chapter by describ-
ing the process by which a particular design is implemented through the con-
struction process and some of the problems that arise during the course of
The Design Undertaking
132 CO N S T RU C T I O N L A W
6.01 Int roduc tIon
This section introduces the reader to the design function and its allocation
among various participants in a traditional Design-Bid-Build project. It begins
with a brief review of the typical Design-Bid-Build contract relationships (dis-
cussed in more detail in Chapter 4) and continues by discussing those con-
sultants who ordinarily contract directly with the owner and their primary
responsibilities. It then describes the structure of the architect’s design team
and the delegation of design responsibility through the architect to specialty
consultants and engineers. The section concludes with a discussion of the con-
tractor’s limited role in design.
A. Brief O verview of Contr actual Relationsh ip among Partie s
and General Allocatio n of D esign Fun ction
Ultimately, the reader must appreciate the exact contractual relationships that
govern construction of a particular project, as liability issues cannot be assessed
meaningfully without a clear understanding of the various parties’ interwoven
contractual relationships. Although there are many different ways in which the
design responsibilities on a project can be allocated, the following discussion
is intended to characterize the chief design functions and to describe a typical
allocation of design responsibility under the most common contract mecha-
nism—Design-Bid-Build, also often referred to as the Traditional method of
construction contracting. It is the project delivery system contemplated by the
chief AIA documents.
1. Owner
The owner’s primary responsibility is to provide a site for its project and then
to make choices in communication with the lead design professional as to
how the project will be implemented. The owner’s choices with respect to
design may be based on aesthetic reasons, nancial considerations, functional
requirements, or other factors; the independent consultants whom the owner
may retain to assist in these areas are described later. In a Design-Bid-Build
project, the owner contracts with a design professional and then enters into a
separate contract with the contractor.
2. Design Professionals
The lead design professional’s ultimate design goal is to draft drawings and
specications that govern the contractor’s work and implement the owner’s
requirements. There are numerous constraints on how the design profession-
als accomplish this, and this chapter is devoted largely to identifying those

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