Architects and Engineers are the design professionals responsible for preparing the plans and specifications used by Contractors on construction projects. These Architects and Engineers are licensed design professionals and their qualifications, duties, and skills are analogous to the responsibilities of other licensed professionals, e.g., physicians, lawyers.

The liability exposures created by the project design are typically delineated in construction contracts and covered by professional liability insurance policies, specifically drafted for this purpose. However, with the proliferation of design-build as a project delivery system, design responsibility can be dubious. Contractors are assuming more and more responsibility, and the associated liabilities. This responsibility is not only for construction means and methods, but also for delegated design transferred via contract language and/or performance specifications.

The recent changes to the 1997 Edition of the American Institute of Architects (AIA) Document A201, General Conditions of the Contract for Construction, has brought the issue of design delegation further into the spotlight. Provision 3.12.10, of the AIA A201 delineates the conditions under which the Contractor may be required to perform professional design services.

There are four separate parts of this new provision (3.12.10).

1.      The first part prohibits design delegation unless such services are specifically required by the Contract Documents, or the Contractor needs to provide such services in order to carry out its responsibilities for construction means and methods. (Contractors should pay particular attention to Provision 3.3.1, since it requires a Contractor to review design of means and methods if they are specified).

2.      The second part prohibits design delegation in states where such delegation would violate state law.

3.      The third part addresses the situation in which design is specifically required of the Contractor through the Contract Documents. However, the design professional must also specify all performance and design criteria that such services must satisfy. This part also obligates the designer to coordinate the delegated design with the overall project design with the requirement to “review, approve or take other appropriate action” on all the design submittals made by the Contractor and its design professional for the purpose of checking the submittal for conformance with information given and the design concept expressed in the Contract Documents.

4.      The fourth part is that the Contractor is not responsible for the adequacy of the performance or design criteria required by the Contract Documents. The Contractor has only to provide the design required to meet the criteria established by the Project Designer and is not responsible if those criteria prove to be inappropriate and do not produce the desired result.

In other words, two things must be present before a Contractor is obligated to provide design pursuant to the 1997 AIA A201: 1) a specific requirement in the Contract Documents to do so, and 2) a specific delineation of the design and performance criteria that the delegated design is to meet. The Project designer then has the obligation to check the delegated design for conformance with the design concept of the Contract Documents, i.e., integrate that design into the overall design so that all parts work together.

If Contractors chose to assume design liability consciously, then that is a business decision and we recommend that Contractors have the appropriate contractors professional liability coverage in place to mitigate their design liability risk and exposure. Contractors also have the option to leave the design work on the project to the design professionals, i.e., A/E Design Firms. However, if Contractors chose to partner or subcontract delegated design that is required by the contract documents, they should seek a licensed design professional that has the appropriate professional liability insurance in place, has the proper limits of coverage and has knowledge that the policy aggregate has not been eroded by undeveloped claims incurred from prior projects.

To assist you with your search for an A/E Design Firm, we have included several sources. The American Institute of Architects (AIA) and the National Society of Professional Engineers (NSPE) is a good starting place for finding licensed design professionals. Other good resources are the annual lists of design professionals issued by Engineering News Record (ENR) and Building Design & Construction (BD&C), which are listed below.