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With the increased use of delegated design in construction projects, questions have arisen over responsibility for and acceptance of the correctness of the design and the engineering.
Background
Delegated design is a complex and evolving legal topic. Design delegation issues are becoming increasingly common and more complicated as work practices and delivery methods change and as specialties and products develop. These issues involve a confluence of laws: public laws related to the professional licensure and responsibility of architects and engineers, contractual obligations and judicial interpretations of contract language, and liability insurance coverage issues. Laws regarding licensure as well as judicial interpretation of contracts can vary significantly by state.
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unsplash via pexels.com |
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Design delegation issues are becoming increasingly common and more complicated as work practices and delivery methods change and as specialties and products develop.
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Overlaying these issues is the notion that licensed professionals are subject to rules of professional conduct that set them apart from other contracting parties. This in itself can be a source of tension and additional levels of complexity. It’s easy to see, then, that delegated design is a definite "gray area" in the responsibilities of engineers, architects, contractors, and suppliers in the context of a construction project.
When is it Used?
Delegated design is used to provide the engineering needed for those materials, assemblies and products for which the design professional is not assuming that responsibility. These can range from precast concrete to cold-formed metal framing, glazed curtain wall to acoustical ceiling suspension systems. Under this scenario, the responsibility for structural integrity is delegated to a professional engineer engaged by the contractor. The design is required to resist loading conditions, the values of which are provided by the design professional.
Delegated design is typically something that is NOT shown on the drawings unless maybe it’s a specific portion of the work that you want to make clear is being handled that way. Delegated design requirements are usually handled within the specification section for the work result to which they pertain.
An Example from Actual Practice
What happens if an assembly is designated to be engineered by delegated design but the calculations of the contractor’s engineer are then reviewed and commented on by the project’s structural engineer? Let’s look at what the American Institute of Architect’s "General Conditions of the Contract for Construction" say about delegated design:
AIA General Conditions AIA A201-2007, Section 3.12.10
[…] The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professionals’ written approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications, and approvals performed or provided by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. (Italics in original)
Note the last sentence of that excerpt. That is a telling clause insofar as the efficacy of delegated design is concerned. Since the owner and the architect are entitled to rely upon the “adequacy, accuracy and completeness” of delegated design services, there is no need for the project engineer to review those services.
No Good Answer?
But what happens if the project engineer, in reviewing the delegated design engineer’s work, takes exception to something in that work? In light of A201, is it a moot point in the sense that it does not matter? And does the “buck” in this case, whether the design service is correct or incorrect, stop with the delegated design engineer? Consider that A201 also says, “The Contractor shall not be responsible for the adequacy of the performance and design criteria specified in the Contract Documents.”
In some cases, the criteria that is specified to be used by the delegated designer comes from the drawings and has been compiled by the project’s engineer. So now we’ve gone full circle: If the contractor is not responsible for the adequacy of the performance and design criteria specified in the contract documents, and that is what the delegated design is based on, does the “buck” then come back to the architect? Not being an attorney, I can only speculate.
These are just a couple of the delegated design concerns that are being played out. There is some case law on the subject out there and that body of information will continue to grow.
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| ABOUT THE THE BLOGGER |
Bob Bailey, AIA, CCS |
A full-time specifier for more than 25 years, Bob Bailey, AIA, CCS, CSI, LEED AP, is Specifications and Constructability Specialist for IKM Inc. of Pittsburgh, PA. An award-winning specifications writer, Bob is the founder of the Pittsburgh Specifiers' Roundtable and immediate past president of CSI Pittsburgh. His professional passions: continuing education and internship development. Contact Bob. |
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Comment from Drake Wauters, (2/13/2017, 5:37 AM)
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One way to stay out of trouble is to make sure the design intent is clear on the drawings and in the manual. Too many show too little and expect to work it out later when that more than likely adds cost to what was bid, the cheapest possible solution conforming to the published docs.
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Comment from Jesse Melton, (2/13/2017, 7:22 AM)
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It was my understanding that delegated design is intended to reduce responsibility and dilute accountability.
It's fine and dandy if technical professionals won't take responsibility for their own work. That means we don't need them! Right?
We really don't need professionals who will not take responsibility for the work they do. It's not just an insult to other professionals in their respective fields, it undermines decades of technology investment and highly refined documentation expectations that add tangible value to the work. Professional organizations are supposed to prevent the trivialization of the work done by those who represent the field. Where are they?
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Comment from Bob Caldwell, CSI, CCS, (2/13/2017, 8:36 AM)
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Delegated design can be helpful when the Contractor's knowledge of field conditions allows for the most efficient use of materials for a task. The architect can draw supports for ceiling hung toilet partitions, but what happens when ductwork is installed before the toilet compartments? In this case it may be best for the architect to supply performance criteria and require the Contractor to engineer the miscellaneous metals to support the partitions.
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Comment from Phil Kabza, (2/13/2017, 9:39 AM)
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The point of delegated design is that, since the Contractor ultimately chooses the supply chain responsible for certain engineered components, the supply chain must perform the final engineering. It has nothing to do with reducing responsibility or diluting accountability. Because, for example, curtain wall structural performance depends upon the specifics of the components selected and varies from manufacturer to manufacturer, only the supply chain knows what the final design capacity of the assembly will be; if the Contractor selects another manufacturer, that design capacity may vary. In such cases, delegated design is the only viable alternative, as the architect and structural engineer of record cannot perform final design calculations on an assembly that has yet to be selected. Use of delegated design in such cases allows the supply chain to design components that are more efficient structurally and therefore more competitively priced. Owners and architects do need to be aware that the Contractor or the supply chain professional engineers should be providing professional liability insurance to cover their own work.
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Comment from Owen Thatcher, (3/30/2021, 6:50 AM)
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As a roofing contractor, I prefer delegated design because it gives me the responsibility to choose the supply chain, where I can make sure the quality of my work.
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