What Standard? Under Whose Care? 
By Robert C. McCue, PE and E. Mitchell Swann, PE
MDCSystems® Consulting Engineers 


Can a Designer or Owner shift responsibility for design errors and omissions by requiring an enhanced effort for construction coordination drawings by contractors?

 

 

To answer this question we will recount an example project that was bid as Design-Bid-Build where the fundamental element of the dispute was design defects with regard to spatial arrangement and sizing of system features. Responsibility for system sizing and coordination and to what standard it is performed are key elements of this example.

In this example the Owner tried to obtain support for their defense to design errors by making a series of Design Build and performance specification arguments regarding the Contractor’s responsibility to find and correct these errors.

The popularity of the Design Build model and the additional freedom it provides to Owners may be subtly influencing the types of practical project execution Owners are employing regardless of the actual contract mechanism in use. 


The project concerned an institutional building located in a foreign state. The contracts were written and let as a Design-Bid-Build and the Owner had separate and independent contracts with the Design Professionals and the General Contractor\Construction Manager. The Designers provided bid and issued for construction documents. The issued for construction documents contained system configurations and equipment that did not comply with the local building codes or standards. Failure to comply with code is typically prima facia evidence of failure to meet the applicable standard of care.  However, in this particular instance there were some questions as to what extent a “foreign” owner has to comply with local codes. However, that said, it is still incumbent upon a designer to satisfy the code, or advise an owner to obtain a variance.

 

The key issue in the dispute was the fundamental design system coordination, or lack thereof, which does not become evident until the construction period. The design drawings and specifications indicated/required certain equipment, devices, and materials to be installed in interstitial spaces. However, when the contractor attempted to detail his coordination drawings to install the identified scope it was discovered the systems wouldn’t fit within the required spaces.

 

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by David LaPenta, Vice President, Remington Group, Inc.

 

Change orders (CO) fall into two categories – owner driven and non-owner driven. Both can be mitigated.

 

Owner driven change orders happen when Owners change their minds, adding a window here or changing the carpet there. We’ve even seen buildings moved and floors added mid-project, which leads us to the first CO avoidance strategy: