The Design Undertaking

• Author: Stephen A. Hess and Lawrence C. Melton
• Pages: 131-153

The D esig n Unde 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

construction.

6

The Design Undertaking

STE PHEN A. HE SS AND LAWRENCE C. ME LTON

C H A P T E R

131

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

standards.