Design-Build Projects: Key Issues; Drafting to Mitigate Risk for Contractors, Design Professionals, and Owners

Description

The design-build project delivery method is popular due to the potential time and cost savings it may provide the owner. However, it presents unique project planning issues and contractual drafting considerations for owners, contractors, and design professionals as compared to the traditional design-bid-build method. Counsel representing all parties should be aware of these differences so that they can best customize the project agreement to protect their clients, even if beginning with form documents.

For instance, in design-build projects, the relationship among the parties is unique in that the design professional is the contractor's teammate, not the owner's consultant. Therefore, the duties owed among the project participants differ from the traditional model. Where the designer may have worked directly for the owner and acted primarily in the owner's interests to protect them from defects in the contractor's work, under the design-build model, the designer has financial counterincentives to making the owner aware of construction problems. Therefore, the owner may want to set up checks and balances in the contract's terms.

Other considerations that differ from the traditional method are the standard of care owed by the designer compared to the contractor which may change from the ordinary duty of care owed by the traditional design professional to a more stringent standard typically expected of the contractor. Furthermore, where the contractor traditionally is asked to warrant the results of their work, not the overall success of the project, the design-build contractor may be required to warrant most of the project's performance.

Listen as our expert panel provides an in-depth look at the design-build project delivery method. The panel will provide insight into issues unique to each project participant and describe best practices for customizing the project agreement to mitigate risk for owners, contractors, and design professionals.