Constructability reviews 

One means of strengthening a project design is to obtain input from leading contractors who have experience with the materials or methods that are planned to be used. A way to obtain such input is for the employer to hire a contractor before the bid solicitation to review proposed design documents and offer advice as to whether they are reasonably constructable. A contractor who provides such pre-bid services should take care that its contract does not incur liability for design errors that it fails to discover. 

In its standard design-build contract form, the American Institute of Architects (AIA) includes among the design-builder’s duties a duty to advise the employer as to constructability, availability of materials and labour, procurement and construction time, construction cost, alternative designs or materials, preliminary budgets, life-cycle data and possible cost reductions. 

In the Netherlands, some of these issues are addressed in Article 4 sub 5 of the Dutch construction team model agreement Koninklijke Bouwend Nederland, 2021. Responsibility for advice and designs lies with the person to whose specific field in the construction team those opinions and designs relate, provided that person has accepted the advice and designs and made them their own. Parties must give timely warning before final adoption of the design where a draft document is manifestly flawed or defective in such a way that proceeding without warning would be contrary to reasonableness and fairness. This obligation replaces the warning obligation of article 7:754 of the Dutch Civil Code. 

In general, it is prudent for an employer’s designers to seek at least some measure of constructability input before finalising a bid package on a major project, especially where the project involves cutting-edge technologies or methods. A contractor providing pre-bid constructability reviews should ensure that its contract does not impose liability for design errors or omissions that it may fail to discover.

Pre-bid engineering review 

In some jurisdictions, government agencies require a pre-bid review of design documents by a public or private panel of expert engineers. Such reviews tend to focus on structural issues likely to affect public safety. Governments in seismically active zones, for example, may have special criteria to assure that new buildings will not collapse or fall over in an earthquake. San Francisco expanded requirements for review and approval of subsurface shoring after a tall concrete building began to tilt. 

The panels performing such reviews must be independent from the firms creating the design documents, and their members are unlikely to face personal liability if they fail to discover a design error. Latvian construction law provides for pre-construction design review by government-approved experts and defines responsibility for the content and justification of the expert opinion. In Australia, the Building Codes Board offers Model Guidance on Independent Third Party Review (2021), including risk-based review, independent review of high-complexity structural and fire-safety designs, confirmation of the scope of review, a certificate of design compliance and allocation of the review cost to the building approval applicant. In Peru, by comparison, government agencies rarely require third-party review before tender, which may lead to a greater incidence of design flaws. 

Design coordination 

If the employer’s design is allocated to multiple design firms, such as architectural, structural and mechanical design firms, it is prudent for a single party to have responsibility for coordinating those disciplines. Sometimes a single design firm hires the other disciplines as sub-consultants. On other projects, the architect is asked to coordinate multiple design disciplines. AIA clauses generally require the architect and consultants to coordinate their services while allowing them to rely on information furnished by the owner and other consultants, subject to prompt written notice of errors, omissions or inconsistencies that become known. 

In the Netherlands, design coordination has changed in recent years. In 1992 the Coordinating Structural Engineer as an institute was abolished. Since then, problems have arisen that can be traced to a lack of control over partial or prefabricated engineering. As of 1 January 2024, the Dutch Law on Quality Assurance for Construction introduces an obligation for a contractor to employ a Quality Auditor to verify whether construction complies with the project building permit. The completed works may not be used until a proper declaration is received from the Auditor. 

In the United Kingdom, the Construction (Design and Management) Regulations 2015 require a client to appoint a principal designer and principal contractor where more than one contractor is or may be involved. Latvia has a comparable process: where an employer enters into multiple contracts for a single design, it must identify the principal developer of the design and the developers of its components. The principal developer coordinates the design as a whole, ensures that all necessary parts are included, obtains and distributes sufficient up-to-date information, checks mutual coherence and incorporates changes in all relevant design parts.

Design assist 

Where an employer wishes to delegate only certain defined elements of design, it can require contractors to perform design-assist services. Traditionally, these include checking field measurements, supplemental subsurface borings, concrete mix designs, or detailing reinforcing steel or fire sprinkler routes. They may extend to foundation load calculations, complex roofing systems and curtain wall designs. 

Because design assist is assistance to another designer, providers typically wish to clarify that the engineers of record retain control over the design and ultimate responsibility for the final design. The AIA form for design-assist services requires the consultant to review documents and information related to the services and promptly notify the client of observed errors, omissions or inconsistencies. It also states that the consultant is not responsible for acts or omissions of the client or other project participants and that the design professional of record remains responsible for design conflicts and for incorporating the consultant’s information. 

The AIA General Conditions emphasise specificity when professional design services or certifications are required from the contractor. The owner and architect must identify performance and design criteria, the contractor may rely on their adequacy and accuracy, and the services must be provided by a properly licensed design professional. The special AIA design-assist form avoids a broad flow-down of prime-contract obligations and instead requires the parties to specify which prime-contract provisions apply. 

Contractor plan review 

Many construction agreements require the contractor to review plans and specifications and notify the employer of errors or omissions. This may reduce design errors, but it can be abused if the contractor is asked to assume liability for errors it fails to discover. Usually the contractor has less time to review the design than the designers had to prepare it. Prudent contractors should therefore make clear that they are responsible only for reporting what they actually discover during a preconstruction review. 

Latvian law illustrates the principle that contractors should be liable for design by others only where they detect obvious violations. A construction specialist may generally assume that other specialists are acting in accordance with regulatory requirements and properly performing their professional duties. If obvious violations are detected, however, the specialist must act to prevent harm to life, health, property or the environment. 

A recent prime contract adapted from the 2017 FIDIC Red Book imposed a broader scrutiny obligation. It required the contractor to scrutinise specifications and drawings before construction, notify errors within prescribed time limits, and bear time and cost risks where no compliant notice was submitted. It also allocated risks arising from implementing erroneous drawings or specifications to the contractor. By contrast, widely used AIA General Conditions provide that a contractor’s study and comparison of contract documents facilitates coordination and construction and is not intended to discover errors, omissions or inconsistencies. The contractor must report problems actually discovered or made known, while acting as a contractor rather than a licensed design professional unless the contract states otherwise. 

Where a prime contractor or subcontractor is required to review plans and specifications, standard industry practice should support a disclaimer of liability for errors and omissions that the reviewer fails to discover. Ultimate liability for design errors should generally remain with the party that prepared the design.

Contractor review of predecessor work 

Subcontracts commonly require each trade contractor to check work performed by predecessor trades. Clauses of this kind can generate disputes over which defects reasonably should have been discovered and may shift liability away from the party that made the design error. Contractors often insist that their responsibility be limited to reporting defects actually uncovered by their review. 

In Brazil, these issues arose on the public-private partnership contract for the São Paulo Ring Road. Work on one sector began in 2013 and was suspended in 2018. A replacement contractor was later engaged to complete and operate the highway. During a 12-month preconstruction phase the replacement contractor had to assess earlier work and report on its status. The contract allocated to the replacement contractor risks associated with defects in previous construction unless it could demonstrate on technical grounds that a latent defect could not have been identified during preparation of the updated final implementation design, even if the prescribed scope, methodology and procedure had been followed. 

Contractor/supplier warranty for intended purpose 

A number of construction contracts state that the contractor is responsible for providing a project suitable for its intended purpose. Such clauses can lead to disputes because the intended purpose is not always fully defined or understood. An experienced contractor may be able to prepare take-offs assuring compliance with plans and specifications, yet still be unable to price the risk that compliance will produce a fully functioning facility. 

Some subcontract forms state that specifications and drawings may not be complete in every detail and require the contractor to comply with their manifest intent and general purpose. AIA General Conditions take a more limited approach: the contractor must perform items stated in or reasonably inferable from the contract documents as necessary to produce the indicated results. In the United States, commercial sellers impliedly warrant that goods are suitable for a buyer’s intended purpose where the seller knows the purpose and the buyer relies on the seller’s skill or judgment. That implied warranty is often disclaimed by contract, and US law does not generally imply a similar warranty for construction services.

Free from defects 

In the United States, sellers of commercial goods are typically subject to an implied warranty that goods will have no defects. This perfect-tender rule does not apply to construction or design services, which are more usually assessed against a prevailing standard of care. AIA design-build wording promises conformity with the design-build documents and freedom from defects, except for defects inherent in the quality of the work or expressly permitted by those documents. 

In Peru, contractors commonly provide a general warranty against defects in the works. If design is included in the works, the warranty is likely to include design defects. An alternative is to identify covered defects, such as defects in materials and workmanship. Because design-defect liability can be very large, contractors and designers generally seek to have human work judged against prevailing standards of good workmanship rather than against a standard of perfection. 

Estimated useful life 

Some project documents require a final project to have an estimated useful life of a stated number of years. Depending on the wording, this may amount to a supplemental design warranty. Such provisions are common in Peruvian projects, although they may not be linked to a specific remedy. Useful life is not expressly included in the major international standard forms, but employers may demand it on major projects to maximise asset life, control whole-life cost and align the asset life with financing terms. 

Liability for useful life depends on the contract wording and surrounding facts. English law is likely to enforce a clear requirement for a designer or contractor to produce a project or system with a guaranteed useful life. A distinction should be drawn between warranting that the actual useful life will be at least a stated period and warranting that design will be carried out with the aim of achieving that period. The latter is more aspirational. Guaranteeing an actual service life spanning decades may be so risky that it casts doubt on whether such an obligation reflects the parties’ objective mutual intention. Maintenance and care also affect useful life, and whether inadequate maintenance breaches the requirement will depend on the facts and degree. 

Notes and source references 

1. 1. Eric Franco and Alejandra Verdera, “Achieving Latin America’s Energy Transition”, in International Arbitration in Latin America, ch 18 (Wolters Kluwer 2021). 

1. 2. AIA Document A141-2014 Design-Build Agreement, para 4.1.2. 

1. 3. Koninklijke Bouwend Nederland Model Bouwteamovereenkomst, 2021. 

1. 4. FIDIC Guidelines to Reviewing the Work of a Professional Consulting Engineer. 

1. 5. Stephen Pettee, “Constructability Reviews – An Introduction” (2012). 

1. 6–7. Latvian Construction Law, art 19(7), and Construction Regulations of Buildings, art 83. 

1. 8. Australian Building Codes Board, Independent Third Party Review: Model guidance on BCR recommendation 17 (2021). 

1. 9–10. AIA Document B101-2017, para 3.1.2; AIA Document C421-2018, para 5.4. 

1. 11. F J M Scheublin, “Waar zijn wij aan begonnen, over enquête, maquette en etiquette” (Eindhoven University of Technology, 2004). 

1. 12. Dutch Building Quality Assurance Act. 

1. 13. UK Construction (Design and Management) Regulations 2015. 

1. 14. Latvian General Construction Regulations, art 34. 

1. 15–18. AIA Documents C403-2021 and A201-2017; Bruner and O’Connor on Construction Law. 

1. 19. Latvian Construction Law, art 19(2). 

1. 20. AIA Document A201-2017, para 3.2.2. 

1. 21. São Paulo public-private partnership materials for the Ring Road project. 

1. 22. AIA Document A201 General Conditions, para 1.2.1. 

1. 23–24. US Uniform Commercial Code, sections 2-315 and 2-601. 

1. 25. AIA Document A141-2014 Design-Build Agreement, para 3.1.12. 

Authors 

Ana Candida de Mello Carvalho is Vice-Chair of the IBA Project Execution Subcommittee and a partner at BMA Advogados in São Paulo. Eric Franco is managing partner at Legal Delta in Lima. Douglas Stuart Oles is Co-Chair of the IBA Project Execution Subcommittee and a partner at Oles Morrison Rinker & Baker in Seattle. Angus Rankin is a partner at Vinson & Elkins in London. Dace Silava-Tomsone is Vice-Chair of the IBA Project Execution Subcommittee and a partner at COBALT in Riga. Leendert van den Berg is Co-Chair of the IBA Project Execution Subcommittee and a partner at Severijn Hulshof in The Hague

CLINT,  Volume 18. Issue 3, October 2023, maart 2026