建筑行业参与者非常熟悉Design-Bid-Build（DBB），这是传统的项目交付方法。的确，在公共部门中，这种方法通常是强制性的，在确定该项目之后的最低负责任的竞标者是由所有者的设计专业人员内部设计的，或者经常由以前选择的设计实体内部设计。根据DBB，对于所有者，设计专业人士和承包商，明确征收了权力，责任，报告和潜在责任的范围。在法定和法院裁决中，全国一个长期建立的法律机构都完善了这些定义明确的关系引起的大多数问题。

在过去的四分之一世纪中，一种称为设计建筑的替代项目交付方法已经发展，旨在显着降低设计和施工成本以及性能的时间。新利18备用官网登录全国各地的设计建筑的增长已在最近的工程新闻纪录的封面故事中记录在题为“设计建筑的发展”中，该故事建议大多数州允许全面或至少有限地使用设计建造项目交付方法，主要用于州公路和桥梁建设项目。新利18备用网址在同一时间范围内，联邦采购规则已经修改，现在许多联邦机构通常使用设计建造规则。显然，这种项目交付方法正在迅速成为选择的一种，尽管不一定对于每种类型的建筑项目，DBB或其他建立良好的项目交付方法更合适。

This discussion initially considers the organizational structures and relationships in design-build contracts, which are markedly different than for DBB projects. While the owner entity is unchanged, its relationships with a design professional and a construction contractor now requires contracting with a single entity, responsible for both functions. The process in establishing such relationship is also changed. Certain owner design parameters and other technical criteria are established for the project, followed by selecting a design-build entity. Such process, often through a request for proposal (“RFP”) from contractors and design professionals in joint ventures or prime-subcontractor relationships, gives consideration to “best value” factors, rather than just lowest price. These can include specific required qualifications, proposed innovative approaches, past performance on similar projects, cost and other factors. Since the selected design-build entity becomes the single point of contact for the owner and, as such, has full responsibility for both design and construction problems, the focus here on unique concerns relates to the internal composition of that entity, and the shared and separate responsibilities undertaken by its participants.

A typical design-build entity comprises a construction contractor as prime and a design professional as subconsultant. If the owner solicitation is by RFP, with a design-build proposal to include a preliminary design, incorporating any owner-furnished parameters, a proposed contract amount, and duration for the work, issues can arise with regard to detail needed for the preliminary design, consistent with the owner’s overall concept and other competing interests. The contractor component of the design-build team wants meaningful detail for maximum utility in pricing the construction cost, whereas the design professional is understandably concerned about the unreimbursable cost of a significant design effort, should they not be awarded the design-build contract. Since these parties are not, at that stage, able to enter into a full-blown prime contractor-design subconsultant contract, a common practice is to enter into a memorandum of understanding (“MOU”). The MOU would include a description of the pre-proposal activities to be performed by the contractor and by the designer, with each to absorb its own costs in their respective efforts. Although limited in scope, it must be remembered that such MOU is a contractual document which, if not carefully drafted, can create significant downstream issues between the parties.

Another potential thorny issue that needs to be addressed at inception is the contractually created liability of the design-build prime contractor to the owner for design errors and omissions on the part of its design professional subconsultant. Thus, the prime contractor, who is to perform only construction work and no design services, and likely unlicensed for any such design services, can nevertheless have direct exposure for such liability to the owner, with whom the contractor is in privity of contract. Appropriate protective measures need to be considered against this risk, such as the contractor being included as an additional insured on the design subconsultant professional liability policy, and also through a contractual indemnification provision in the contractor-design professional subcontract.

A further point of concern can arise regarding the totality of the design-build entity’s responsibility for design, under its design-build contract with the owner, a position that some owners have espoused.

The following illustrations as to the above unique design-build concerns underscore the reality of how significant issues can develop in these areas:

Adequacy Issue as to Engineer’s Preliminary Bridge Design Under MOU for Design-Build Proposal

An international contractor submitted a proposal for a design-build contract with a prominent engineering firm, as design subconsultant, for replacement of a state’s historic lengthy cable-stayed bridge across a major river. The parties initially entered into a pre-proposal MOU, intended to encompass a preliminary design, taking into account the state’s provided design parameters, and upon which the contractor would prepare a cost estimate for the contemplated quantities of structural steel, concrete, rebar, etc. Following contract award by the state, as owner, the contractor and engineer entered into a design subcontract for the requisite final design services. Upon approval by the state of the design-build entity final design and implementation of construction, it was determined that the pre-proposal quantities had been significantly underestimated and inadequately costed in the proposal. While a number of other disputed issues arose between the contractor and designer, a principal point here was the lack of clarity as to the parties’ respective responsibilities under both the MOU and design subcontract. This in turn led to a multimillion dollar arbitration claim at significant time and cost to both parties. The seeming lack of attention to carefully drafted and clear contractual language was surprisingly a principal culprit here.

保护建筑承包商免受水隧道项目的工程责任

An engineering consultant was in contract with the owner for services involving inspection, testing and overseeing partial replacement of an aged leaking water supply tunnel under a major river. A construction subcontractor had developed specialized proprietary equipment it planned to use for certain inspection and testing aspects of the project, and the engineer initially insisted that the subcontractor maintain its own professional liability insurance. The subcontractor balked, since its business was not engineering, but rather construction contracting and related work. The matter was resolved by inclusion of the contractor as an additional insured on the engineer’s professional liability policy. Indemnification was also considered, but not implemented in these circumstances, which were far less potentially severe than in the more traditional design-build contract, where the contractor entity is in privity with the owner and has clear direct contractual design responsibility.

Viaduct Design Error Not Responsibility of Design-Build Entity

所有者的工程师在设计错误要求的环境中断言，在设计建造合同中，高架桥更换的现有甲板厚度大于预期的甲板厚度，这完全是承包商的责任，因为它承担了合同下的全部设计责任。但是，当仲裁员意识到这是一种不可预见的条件时，冷却器的头部占了上风，所有者在其最初对合同提案的要求中提供的错误现有甲板厚度数据加剧了。这里的原则是all设计构建合同中的设计责任并不总是自动自动该实体的责任，并可能导致所有者责任。

The suggested lessons learned here are the importance of careful drafting of contractor-design professional contracts to clearly reflect the differing responsibilities of the parties, with separate disciplines, albeit united contractually; the need to include contractual protective mechanisms to insulate the contractor from design responsibilities; and the recognition of certain exceptions to absolute design responsibility.

最后，值得记住的是，尽管全国设计建造合同的数量急剧增加，但在考虑这一过程中的设计与施工二分法时，很少有法律先例可以依靠。这仅仅是因为在未报告的仲裁论坛中解决了各种主张的索赔，因此在签订了设计建造合同时，还增加了对合同保持警惕的动力。

杰克·S·坎尼（Jack S.他可以接触到jkannry@wbcsk.com