GSO - Design-Build Concept Expands

Design-Build Concept Expands

by Gray Smith AIA AICP

In two previous issues, we explored some of the pros and cons of a “modern” approach to building project development that is “sweeping the country.” Design-Build essentially connotes a single source approach to getting the job done. Rather than first engaging an architectural and engineering (A & E) team to define and design the project and then seek out a contractor to build it, a developer, government agency, or institution, goes to a Design-Build Contractor. The Design-Build Contractor packages the A & E services in with the construction. The A & E firm (in-house or separate consultant) is a “sub-contractor” to the Contractor who assumes the lead. The developer/government agency/institution may spend a lot of time with the A & E personnel, but the A & E folks are clearly beholden to the Contractor, first and foremost, who is paying the freight.

Does this indirect relationship compromise the A & E design professionals? Since the Contractor has been directly engaged for design services, when errors and omissions occur, and any damages to the developer there from, is the Contractor wholely responsible — as the ultimate boss? How does this sub-relationship, that the A & E’s find themselves in, comport with state architects and engineers laws and professional ethics?

The jury is still out on these questions. Within a short time, there will be a pretty good body of case law that will help with the answers.

Gray Smith’s Office has been engaged in some cases in the past few years that grew out of the cloudy nature of professional responsibility of architects and engineers in Design-Build projects. In one, an engineering firm who also assumed the roles of Construction Manager and General Contractor, bit off more than it could chew. The result: total responsibility and therefore ownership of all the liability in a wrongful death due to a design and construction error. In another case, the design portion of Design-Build team was asked to step aside during the construction phase, at which time all of the handicapped acceptability provisions were subtracted from the project.

The professionals (and the politicians who think Design-Build is so great) are attempting, with a vengeance, to work out the kinks. With so much interest and lots of trial and error, they might get it right.

The Design-Build Institute of America (DBIA) has published Design-Build RFQ/RFP Guide for Public Sector Projects, the first chapter of a planned Design-Build Manual of Practice. DBIA expects to publish a total of about 15 chapters over the next two years. The second chapter will cover insurance and bonding for Design-Build projects.

The 44-page publication is designed for owners of public and institutional facilities. It addresses issues that are likely to arise in a competitive selection process when lowest cost is not the sole criterion. The guide discusses Design-Build qualifications, the competition prospectus and requests for Design-Build proposals. It can be ordered by calling DBIA at (202) 682-0110. The cost is $12 plus shipping and handling.

DBIA and the Construction Specifications Institute (CSI) plan to develop a master performance specification to be used for Design-Build projects. Traditional Design-Build-Bid projects typically use CSI’s 16-division prescriptive specifications.

Members of the American Institute of Architect’s Design-Build Professional Interest Area (PIA) are urging the AIA to adopt a more proactive stance toward this delivery method. Although AIA abandoned in 1993 its policy of essentially endorsing only the Design-Build-Bid delivery process, it still considers this to be the preferred method, according to Scott Fricke, director of AIA’s Design-Build PIA. His group would like AIA to modify its policy to state that the process used should be the one that best suits the project, without specifying a preferred method. Fricke said the AIA expects to begin work this year to develop several Design-Build and Construction Management addenda to the AIA Handbook of Professional Practice.

The Engineers Joint Contract Documents Committee (EJCDC) — a joint effort of the National Society of Professional Engineers, the American Consulting Engineers Council, and the American Society of Civil Engineers — has developed a set of nine contracts, general conditions and guides for use in Design-Build project delivery. “Participants in this project delivery method system have been urging EJCDC to create this group of documents,” said EJCDC past chairman Philip Youngs.

Sixty-two percent of firms surveyed by Practice Management Associates Ltd. of Newtown, MA, reported that Design-Build projects were more profitable than traditional construction projects. Additionally, the survey highlighted that 57 percent of Design-Build teams are led by contractors. Architects and engineers assumed the leadership role in only 17 and 15 percent of the projects, respectively.

The Pennsylvania Society of Architects (PSA) is working with Rep. Ron Raymond (R-Delaware) to develop a definition of Design-Build that could be incorporated into the PA Architects Licensure Law. Raymond and other interested parties, met with PSA and the Consulting Engineers Council in January to begin work on draft language. PSA has been trying to find an opportunity to address this issue for some time, and now it appears legislators want to assist in making Pennsylvania more competitive by changing the law as it applies to Design-Build. (This bill also would amend the Licensure Law so that one-and-two family construction would no longer require professional services. No action has occurred yet on this aspect.)

After months of political maneuvering over the defense authorization bill, Congress sent a proposal to the White House that President Clinton signed.

The design and construction community’s interest is in a portion of the law that enacts major changes in federal procurement practices, including those for buildings and other facilities. In particular, the use of Design-Build by federal agencies is now authorized.

The Design-Build authority defines a procedure for agencies to follow if they decide to use this delivery process. The agency first defines the scope of the project (using either in-house personnel or by contracting with a design firm under Brooks Act procedures). It then solicits proposals from Design-Build entities that outline their proposed technical approaches and qualifications, but do not include detailed design or cost information. The agency may then select not more than five proposers for further evaluation and pick the one deemed best-qualified on the basis of technical competence and price.

Although the legislative language seems clear enough to permit the agencies to proceed, they must still wait for the development of implementing regulations by the Office of Federal Procurement Policy. Design and construction related associations expect to have input into the regulations as they are developed.

The AIA and other design and construction groups are working out a consensus agreement on how detailed and Design-Build regulations should be. The law requires that a final regulation be in place by January 1, 1997. However, the Office of Federal Procurement Policy has indicated that a final regulation may come earlier, leaving design and construction groups little time to formulate a joint response to proposed regulatory guidelines.