Design-Assist Collaboration/Follow-up Post

Shortly after posting the blog article “Design-Assist an Ambiguous Term Causing Conflict in the Construction Industry,” I received an email from Brian Perlberg, the Executive Director and Senior Counsel for ConsensusDocs. He brought two ConsensusDocs forms to my attention:  ConsensusDocs 541 Design Assist Addendum and ConsensusDocs 300 Integrated Form of Agreement (IFOA). In the ConsensusDocs model of “design-assist,” the lead design professional retains design responsibility but benefits from input and consultation from the construction team during design development. By contrast, in the design-build project delivery method, the constructor assumes design responsibility and liability for either the entire project design (design-build) or just a component of the design (delegated design).

The ConsensusDocs 541 document goal is to provide “accurate information concerning program, quality, cost, constructability and schedule from all parties.” It provides a range of standard and optimal services during design development that essentially shifts the curve of selecting the construction manager (CM) and most importantly, special trade contractors, to much earlier in the process, perhaps as soon as the owner’s program is developed. This opens a world of possibilities for the design and construction team to collaborate early and often. The design professional, however, does not abdicate its design responsibility or authority in this process. The ultimate goal is to end the all-too-common wasteful cycle of design and redesign that is common in construction projects.[1]

The ConsensusDocs 541 explicitly states at §2.3: “[W]hile retaining overall responsibility for the project design, Design Professional shall work collaboratively with other members of the project team drawing on the respective expertise in order to achieve the project objectives.” Thus, to the extent design build trade packages or other delegated design may occur during the collaborative process, such shifting of responsibility is done explicitly in a collaborative and intentional fashion in ConsensusDocs 541. In other words, stated simply, if a contractor is to assume design responsibility, that design responsibility is explicitly and unequivocally delegated to the contractor so that there is no misunderstanding of when or if the design work is handed off.

Design-Assist is not IPD (Integrated Project Delivery —a multi-party contract in which the contractual risk is shared in a shared risk pool.) At §2.3, the ConsensusDocs 541 form affirmatively states: “[t]he Parties acknowledge this addendum is not an Integrated Project Delivery agreement or design build agreement and that each party remains responsible for its own errors, omissions or construction defects to the extent provided in the underlying agreements.”

The ConsensusDocs 300 provides a much deeper level of risk-reward sharing that includes contractual privity among the owner, design professional and constructor, a limitation of liability among the core group and a shared risk pool where the parties’ compensation rises and falls together with the success of the project, akin to IPD.

Comment: Design-Assist is an option for owners who wish to incorporate a collaborative design process into projects and the ConsensusDocs makes it clear that the design responsibility remains with the design professional unless components of the design are specifically delegated to the contractor. Using the phrase “design assist” without the clarification recommended in the ConsensusDocs 541, that the design professional retains overall responsibility for the project, can cause conflicts when design issues arise during construction.

[1] How Design-Assist Moves the Needle on Collaboration and How it Differs From Design-Build and IPD, Leon and Pearlberg Design Cost Data, January-February 2020.

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