The familiar terms “design assist” and “delegated design” often mean different things to different people in design and construction industry—which can lead to differing expectations, issues, and claims. Is the contractor simply providing input or taking contractual responsibility for a design? What is the degree of liability that flows from the contractor’s involvement?
In Design Assist, the contractors, construction managers, trades, and suppliers suggest modifications to design elements while the design is still being developed—it is not a delegation of design responsibility. Contractors rely on their own expertise to provide Design Assist services, which is in contrast with Delegated Design services, where a contractor must employ, or otherwise retain, a design professional to fulfill the design responsibilities delegated to it.
With Design Assist, the contractor may incur contractual liability for the information it provides, but the design professional is responsible for incorporating the contractor’s information into its design and maintains professional responsibility.
A standard contract document such as C403™-2021, Standard Form of Agreement Between Client and Consultant for Design Assist Services provides guidance and clearly defines contractors’ design assist services and compensation under a written agreement. The terms “client” and “consultant” are intentionally flexible, as numerous parties in a project could hire someone, or be hired by someone, to perform design assist services. However, in most instances, the design assist “consultant” will be a subcontractor or material supplier and the “client” would be a construction manager, contractor, or owner.
In Delegated Design, a contractor assumes responsibility for developing design details for certain elements of the project as part of its scope of work. In this case, design responsibilities are typically associated with performance specifications. The design professional and contractor typically have separate written contracts with the owner that establish their respective design responsibilities.
The AIA Document C404™-2021 Standard Form of Agreement Between 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 -2021 is a flexible agreement that allows the parties to define the portion of the design that will be performed by the consultant.
In a delegated design scenario, there is some level of split responsibility between the design professional of record and the secondary design professional hired by the contractor. Bottom line, while the secondary design professional is responsible for the component of design delegated to it, the primary design professional is still responsible for signing and sealing construction documents and the establishment of design criteria for elements of the design that are delegated. More importantly, the design professional of record is responsible for the coordination of the delegated design with all materials and systems that have to be integrated.
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