Transferring project design risk

Some construction industry commentators have urged a more integrated approach to design and construction, with equitable risk sharing and an effort to ensure that project design will benefit from the experience of companies that build and supply key equipment and systems.1 This article will, however focus on various ways in which project employers and/or designers seek to disclaim or delegate responsibility for design in ways other than awarding a standard design-build contract.

Leendert van den Berg advocaat bij Severijn Hulshof

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 an 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. The following clause is taken from a 2019 contract in the United States where a ‘Preconstruction Contractor’ was retained to review the design: ‘The Preconstruction Contractor shall review the drawings and specifications in an effort to identify potential constructability problems that could impact the Preconstruction Contractor’s ability to perform the work in an expeditious and economic manner. The Preconstruction Contractor shall issue a report to the Architect and Owner for their review and action as appropriate. In addition, the Preconstruction Contractor shall promptly report to the Owner and the Architect any errors or omissions which it discovers in the drawings and specifications. 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.’

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In Construction Law International October 2023