|Design Risk in Design/Build|
|by Robert J. Erikson, AIA|
There are two ways an architect can be involved in design/build. One is to lead the design/build team. The other is to be part of such a team led by a nonarchitect.
With a love for taking risk, a solid source of capital, and a high level of construction knowledge, any architecture firm can be a design/builder. Indeed, the AIA encourages a designer-led design/build process, whereby the architect hires the contractor. If an architect has chosen to be a design/builder, though, he or she is probably aware of the many risks involved with design/build. Thus, this article is not aimed at such a firm. It is aimed instead at the architect who is working as a consultant for a design/build contractor. Not intended as an exhaustive legal discussion, this article is meant mainly to alert the reader to some important issues he or she will encounter when working for a design/build contractor.
Get your loyalties
The issue becomes even more complicated when it involves the functionality of the space. "We have to get from this office to that conference room and lock off the research area," says the owner. "Hmm," thinks the architect. "Another corridor, more space and over-allowance hardware." So, the architect answers, "I'm afraid we can't do that," knowing that the design/builder's guaranteed maximum price cannot be increased to allow the additional square feet of construction that would be necessary to accomplish this goal. The owner might answer indignantly, "But you [your team] promised!" Indeed! Do you know all of the promises that were made by the contractor in soliciting the project?
Define your expectations
So that the architect's eyes are wide open when working for a design/build contractor there are three points in particular to consider before agreeing to work with a design/build contractor: project selection, agreement review, and role awareness.
1. Project selection
However, such is both the beauty and the problem with the design/build process. While solid assumptions can certainly be made about simple projects, more complex projects tend to be less predictable. What if the owner is a client with complex needs and there are many variables? Can all such variables be known at the time the owner prepares a request for proposal so they can be explained in the design criteria? Often they cannot. Often such variables can be discovered only after the design phase is well along and feedback from a variety of users has been received. As an example, what if the owner is upgrading a hospital, and only after interviews with the staff from a variety of departments can the design team develop major options or subsequent suboptions for presentation to the decision makers? The ability for the owner to provide input and to have that input incorporated into the design is limited in the design/build process. After all, to use the process to its advantage, the contractor has already promised to deliver something (presumably a known thing) for a maximum guaranteed price. Unless the quality is reduced, the scope has already been set.
2. Agreement review
3. Role awareness
Finally, the architect may have fewer responsibilities during the construction of design/build projects than he or she would like. What becomes of the architecture firm's ability to control its own riskthe risk of minor errors or omissions becoming large and costly problemsif the contractor says, "Don't call me, I'll call you," upon starting construction?
The architect must also recognize potential conflicts of interest if it is reviewing requests for substitution submitted by the contractor. The contractor may believe it is in his or her best interest (and therefore the architect's interest) to make the least demanding, least expensive interpretation of a code clause, ADA provision, or promise of quality. But such an interpretation may not be in the best interest of the owner or public, or even in the best long-term interest of the contractor. What then?
Some excellent tools for giving structure to the considerations outlined above are the AIA contract documents, even when the design/build contractor is going to be using his or her own document. B901, Standard Form of Agreements Between Design/Builder and Architect is a handy guideline for what the industry consensus is on basic services as opposed to additional services, the design/builder's responsibilities, ownership of documents, scheduling, payments, reimbursables, and dispute resolution.
The AIA contract documents are written to work with one another, incidentally. The documents that relate to B901 are A191, Standard Form of Agreements Between Owner and Design Builder; A201, General Conditions of the Contract for Construction; A491, Standard Form of Agreements Between Design/Builder and Contractor; and B352, Duties, Responsibilities, and Limitations of Authority of the Architect's Project Representative.
Copyright 2001 The American Institute of Architects. All rights reserved.