Contract documents

October 20, 2022

Delegated design describes a form of collaboration between a design professional and contractor where the contractor assumes responsibility for an element or portion of a project’s design. Contractors who are new to performing delegated design services should be aware that while it can provide significant advantages, it comes with added risks. The following are several key features of delegated design services, and some tips for how to navigate the risks of delegated design.

• Understand the Role of Performance Specifications. Delegated design is normally based on performance criteria established by the design professional’s specifications. The design team is responsible for the adequacy of the performance criteria, while the contractor is responsible for achieving the portion of the design delegated to it – typically a discrete element of the project, such as the curtain walls or fire protection system. The contractor-provided portion of the design must conform to the performance criteria, applicable building code requirements, and the applicable standard of care for professional services involved.
• Your Construction Contract Should Address Delegated Design. An agreement that includes delegated design services should include (1) the contractor’s overall scope of work; (2) a clear statement regarding the delegated design responsibilities, including responsibility for the adequacy of the performance criteria and the design responsibilities for each project participant; (3) how design information will be exchanged and reviewed, including if, how, and when digital models will be used and shared, (4) the contractor’s compensation, and (5) requirements for professional liability insurance to be obtained by the contractor.
• Consider the Additional Risk of Design Liability. The contractor may incur liability for the portion of design delegated to it and may also assume professional design responsibility and liability for its design. Given this, contractors should consider that they may need to procure professional liability insurance when providing delegated design services on a project.
• Know that Delegated Design has Limitations. The ability to delegate professional design responsibility has limitations and, in many situations, professional design responsibility must remain with the design professional of record for the project.
• Recognize the Impact on the Spearin Doctrine. When a contractor performs delegated design work on a project, it may erode their ability to rely on the owner’s implied warranty of adequacy of the plans and specifications (i.e. the Spearin Doctrine).

A201- 2017 General Conditions of the Contract for Construction has long been recognized as the industry standard for design delegation in construction contracts. Section 3.12.10.1 of A201^®-2017 contains several examples of the Delegated Design concepts discussed above. Section 3.12.10.1 sets forth the basic structure of how Delegated Design works on many projects. Fundamentally, it allows an owner, through the drawings and specifications prepared by the architect, to delegate the design of systems, materials, or equipment to the contractor, and their appropriately licensed design professional. The architect is required to specify the performance and design criteria that the contractor will be required to achieve. The contractor then provides those design services through an “appropriately licensed design professional” who uses its own signature and seal on design documents it produces. Both the architect and contractor are entitled to rely on information and services provided by the other, through the owner, in this exchange.

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.