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A201^®– 2017 General Conditions of the Contract for Construction

C404™–2021 Contractor and Consultant for Delegated Design Services

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January 23, 2024

The term “delegated design” can mean different things to different people in the design and construction industry, which can lead to differing expectations, issues, and claims. In delegated design, a contractor assumes responsibility for developing design details for elements of the project as part of its scope of work. Design responsibilities are typically associated with design criteria and performance specifications. Typically, the design professional and contractor have separate written contracts with the owner that establish their respective design responsibilities.

In A201^®– 2017 General Conditions of the Contract for Construction, the process of delegated design is communicated from the contractor and its design professional to the architect and owner through shop drawings.

Section 3.12.10 details how delegated design may occur on projects. This section starts out by stating that “[t]he contractor shall not be required to provide professional services that constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor’s responsibilities for construction means, methods, techniques, sequences, and procedures.” The contractor also does not have the obligation to provide design services unless the contract documents specifically require it. The language is permissive, but protective. It is important to note, however, there are certain design requirements that cannot be delegated, such as structural engineering.

The owner and architect also have responsibilities when delegated design occurs. These responsibilities are set forth in Section 13.12.10.1. The owner and architect specify all performance and design criteria that the delegated design team must satisfy for proper execution of the work. Performance and design criteria set parameters for the design services provided by the contractor on the project. Design criteria is usually specific, such as a certain product that must be used on the project or a specific dimension that must be met. Performance criteria informs the contractor of what must be met for proper execution of the work. It is then up to the contractor as to how that criteria are ultimately achieved. The contractor can rely upon the adequacy and accuracy of the performance and design criteria provided in the contract documents. Additionally, the owner and architect may rely upon the adequacy and accuracy of the services and certifications provided by the contractor and its delegated design team.

The contractor is required to have all the design services provided by an appropriately licensed design professional who signs and seals all drawings, calculations, specifications, certification, shop drawings, and other submittals prepared by that professional.

The architect will review the contractor’s shop drawings and other submittals. The responsibility for the delegated design still rests with contractor and their licensed professional. The Architect reviews the shop drawings and submittals for the limited purpose of checking for conformance with information given and the design concept expressed in the contract documents.

Parties can also look to AIA Document C404™–2021 Contractor and Consultant for Delegated Design Services is a newly developed agreement where a contractor can hire a consultant to perform delegated design services on a project. This agreement can be used for the design of retaining walls, trusses, mechanical systems, fire suppression systems, curtain walls, and many other building components. Given this, C404 is a flexible agreement that allows the parties to define the portion of the design that will be performed by the consultant.

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AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.