The Construction Team hosted back-to-back Breakfast Roundtables in Portland and Seattle earlier this month. Attendees included contractors, suppliers, design professionals, in-house counsel, and others from across the construction industry. The topic: delegated design. We kicked off the discussion by defining the topic as delegating to the contractor a portion of the design of the work. For example, a contractor may have delegated design responsibility for portions of the exterior system, and then delegate that design out to various specialty subcontractors who both design and construct that portion of the exterior. Delegated design is not design-build or an architect delegating to design subcontractors (e.g., structural engineers). There was consensus among the groups that delegated design was becoming more prevalent in the industry. Delegated design provides potential cost savings, efficiencies in having subcontractors participate in the design, and more. On the other hand, we discussed potential pitfalls and solutions to better managing delegated design. These included:
- Avoiding gaps in the scope of the project through clear contractual delegation of responsibilities and assigning responsibility for ensuring coordination between design elements.
- Ensuring communication between all parties, including through preconstruction meetings by all potentially involved parties.
- Avoiding costly and protracted disputes, including through the use of early dispute resolution and third-party neutrals.
- Effectively using technology to prevent miscommunications and gaps in the scope.
- Obtaining appropriate insurance that covers delegated design.
- Analyzing the applicability of design professionals’ obligations under existing regulations and the potential for future regulatory changes applicable to delegated design.
Thank you to those who joined us in our discussions! If you were not able to attend, but would like more information on this topic, contact Jacob Zahniser, Tristan Swanson, James Walker, or Tara O’Hanlon.
