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How Design-Assist Moves the Needle on Collaboration and How it Differs from Design-Build and IPD

How Design-Assist Moves the Needle on Collaboration and How it Differs from Design-Build and IPD

Posted: January 3, 2020 | Tradewinds, Legal Advice

New technology, processes, and project delivery methods are quickly blurring the lines between design and construction. The barriers which formerly existed between design professionals and constructors, both physical and legal, are gradually being broken down. Where design, procurement, and construction were traditionally undertaken independently, now design, estimating, scheduling, planning, value engineering, and procurement can be performed simultaneously by a team of designers and constructors from many different companies.

Collaborative design is a process incorporating collaboration between project participants during the design development, procurement, and construction phases of a project. Design-assist is one such process. Other processes, such as Lean design and construction, and new project delivery methods, like Integrated Project Delivery, (IPD) are also bringing collaborative project delivery into the mainstream. More and more frequently, project owners are turning to collaborative design techniques to create better overall project outcomes.

Unlike Integrated Project Delivery (IPD) or Lean design and construction, design-assist does not have a singular industry recognized definition. Instead the concept has grown organically with different people ascribing different characteristics to it. ConsensusDocs published the first design-assist standard contract document last year, which is known as the ConsensusDocs 541 Design-Assist Addendum. The Consensus-Docs 541 is intended to be used in a CM at risk delivery method (in conjunction with Consensus-Docs 500).

The ConsensusDocs 541 states that the goal of design assist is to provide “accurate information concerning program, quality, cost, constructability, and schedule from all parties.” It provides a range of standard and optional services during design development that essentially shifts the curve of selecting the Construction Manager (CM) and most importantly, specialty 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 construct teams to truly collaborate early and often. However, the design professional 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 emblematic in the A/E/C industry. The inefficiency is caused by a lack of information and expertise which regularly requires false assumptions of cost, schedule, and constructability early in the design process.

In the design-build project delivery method (and its cousin “delegated design”), the constructor assumes design responsibility and liability for either the entire project (designbuild) or just a component of the design (delegated design). In design-assist, the lead design professional retains design responsibility, but benefits from input and consultation of the constructor team during design development. The construction manager and trade contractors, have an obligation to provide their expertise to the design professional. While, design design-build trade packages and other delegated design may occur during this process, such shifting of responsibility is done explicitly in a collaborativeand intentional fashion when using the ConsensusDocs 541.

Some owners have complained that design professionals are abdicating their responsibilities when they delegate large portions of the design, but surveys indicate that if done well, delegated design creates efficiencies.

Most practitioners seem to agree that fire sprinklers, for instance, are best left to delegated design, because the builders have better information and expertise for these elements of design. One of the primary goals of design-assist is to eliminate multiple design efforts for the same work activity.

The ConsensusDocs 541 explicitly states at section 2.3 “[w]hile retaining overall responsibility for the project design, Design Professional shall work collaboratively with the other members of the project team, drawing on their respective expertise in order to achieve the project objectives.” This process is best achieved through collaboratively determining the most efficient hand-off point in the design process between the designers and the constructors.

Design-assist is sometimes called IPD-light or IPDish because it doesn’t contain the key elements of IPD; a multi-party contract, contractual risk sharing, and shared risk pool. In design-assist, the risks are still allocated to each party in a traditional manner. At section 2.3, the ConsensusDocs 541 form affirmatively says, ”[t]he Parties acknowledge that 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.”

An integrated form of agreement (IFOA) like 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 that core group, and a shared risk pool where the parties’ compensation rises and falls together with the success of the project. When using design-assist, even when you go deeper and add lean construction tools as provided in another industry first document, the ConsensusDocs 305, the addendum is still attached to each contract separately and each contractual relationship is individual, including the method of compensation.

Design-assist is a great option for owners who wish to incorporate a collaborative design process into its projects, but, are wary of or constrained from using IPD. The ConsensusDocs 541 Design-Assist Addendum provides precisely the right vehicle for incorporating design-assist into your next project.

Joseph M. Leone is a Partner with DSV where he focuses his legal practice in the areas of Construction Law and Public Contract Law. Mr. Leone represents all participants in the construction industry.

Brian Perlberg is Executive Director & Senior Counsel to ConsensusDocs based in Arlington, Virginia.

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