David Stutzman
The architect asked that I review the "front end" documents written by the design-builder for a new construction project. The front end including bidding requirements, contract requirements, conditions of the contract, and Division 01. The project general and supplementary conditions were not included in the package. The table of contents indicated they were for reference only and available upon request.
Why was the architect concerned?
This is the architect's first design-build project. The architect is working for the builder, not the owner. The project has the architect out of the norm - out of his comfort zone. Contractually, the architect's role is different than under a design-bid-build project delivery method.
The architect completed his own review. He compared his standard Division 01 documents with the documents written by the Design-Builder. The focus of the review centered on the Architect's administrative requirements for processing submittals and substitutions and completing the project closeout.
What did we find?
Generally, it seemed the design-builder started with documents used for Construction Manager as Advisor (CMa) projects. Construction Managers (CM) when acting as owner's advisors, do not hold any contracts. Each contractor signs an agreement directly with the owner. The CM administers the contracts on behalf of the owner - serving as the owner's representative.
The CMa documents were converted to design-build. The term "Construction Manager" was replaced by Design-Builder." The term "Contractor," meaning the individual contractors hired by the Design-Builder, was retained.
Done! Right? Well, not exactly.
The duties and responsibilities of the Owner, Design-Builder, Contractor, Architect, and Subcontractors are not the same under CMa and Design-Build. First the Owner contracts with a single entity: the Design-Builder. The Design-Builder will employ the Architect and may employ a Contractor as the builder. The Design-Builder or the Contractor will employ subcontractors to perform the work.
Confusion will reign unless the contractual relationships are carefully coordinated throughout Division 00 and Division 01. Simply finding and replacing one term with another will not suffice.
What must be considered?
Some help is available. The American Institute of Architects (AIA), ConsensusDOCS, and Design-Build Institute of America (DBIA) all publish standard agreements and contracting requirements for design-build contracts. None of the commercial master specification systems (MasterSpec, SpecText, and Speclink) offer Division 01 documents that are written for design-build contracts. So you are on your own - the same as the Design-Builder writing the sections I reviewed.
Subcontractors
Subcontractors never report to the Owner. Using CMa documents and using the existing term Contractor to assign duties of Subcontractors will result in Subcontractors reporting directly to the Owner, bypassing the contract with the Design-Builder. This will require the Owner to assume responsibilities that are contractually assigned to the Design-Builder.
The Owner has no duty to interact directly with subcontractors. The Owner's interaction is solely with the Design-Builder. Subcontractor changes, payments, claims and disputes must be directed to the Design-Builder.
Architects
On the contrary, Architects typically report to the Owner in a traditional project delivery model. Under design-build, the Architect's contractual duty is to the Design-Builder. However the Architect's professional duty is to the Owner to provide a design meeting the Owner's needs and to the general public to protect health, safety, and welfare. Design-build inserts a conflict of interest into the process for the Architect because of the multiple duties.
The Architect may not have responsibility for design of the entire project. So the Architect must be careful not to assume responsibility for portions of the work that are not his responsibility.
Because the Architect does not report to the Owner, the procedure for processing submittals, substitutions, requests for interpretation (RFIs), payment applications, and completing project closeout must be different.
The Design-Builder receives documents from subcontractors and passes some to the Architect for review. After review, the Architect returns the documents to the Design-Builder. The Owner is essentially removed from this process, entirely, except as it affects contract changes, payments, and disputes. Be sure to check the contracts. Some Owners, especially public entities, may require expanded review and approval of construction activities.
Risk and Liability
Ensure Division 00 and Division 01 documents are written specifically for the project delivery method and are well coordinated. Insist the Design-Builder share the agreement and conditions of the contract affecting all design-build team members. Since everyone is on the same team, all documents should be available to whoever needs them.