Assignment of design to constructors: Continuing the discussion

by Keith Robinson, RSW, FCSC, FCSI, Cameron Franchuk, PE, and Gerald Murnane

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As discussed in Part 1 of this series, recent changes such as downward pressure on professional fees have resulted in transfer of responsibility for many design solutions to the constructor. This means design responsibility is delayed or deferred until the construction phase of the work.

The construction community has identified the need for explicit communication to contractors from architectural and engineering firms, clearly and completely describing design requirements presented within specifications that do not form a part of standard services for engineering and design. Full acknowledgement of deferred design components is the responsibility of the architect/engineer of record (i.e. the registered professional of record [RPR]), giving full disclosure to clients relating to transfer of responsibility for design solutions to the constructor.

Why attention to deferred design matters

Contractors are raising concerns about the level of detail and direction on drawings and specifications associated with deferred or collaborative design responsibilities they are expected to undertake. They believe they are being tasked to interpret intent of the design professional without clear direction, to complete coordination across several discipline-specific document sets, and sometimes to undertake actual engineering of those components. In these authors’ experience, contractors define this apparent lack of direction and coordination as “defective plans and specifications,” going as far in their claims as to say deferred or collaborative design is design avoidance.

Recently, the Canadian Construction Association (CCA) initiated a national conversation about the quality of documents. The discussions arising from this initiative were derived from the full spectrum of construction participants (contractors, registered professionals, and owners). During these sessions, some contractors indicated they mitigate design risk by adding cost to their bids, increasing the number of requests for interpretation (RFIs), tracking additional costs through separate change record processes and multiple requests for delay of work, and using other strategies designed to ‘kill a project.’ These approaches intentionally create a punishing regimen of documentation to overburden the design professional in an attempt to claim costs from the owner by undermining the authority of the architect or engineer of record.

Fortunately, most participants in these sessions recognized this combative approach was inappropriate. They identified potential reasons why deferred or collaborative design has normalized over the last couple of decades. Prime reasons for transferring design responsibility were determined to result from reductions to professional fees, with corresponding reductions in time to:

  • adequately research solutions;
  • fully design and engineer components;
  • coordinate design intent between disciplines; and
  • write, coordinate, and proofread documents.

When discussing documentation, the biggest misunderstanding between contractors and RPRs arose because of contractors’ use of the words “insufficient details,” describing deferred design in the drawings and specifications. Further discussion revealed architects and engineers responded to this criticism by providing many more details than in the past. However, this did not resolve the contractors’ concerns over document quality.

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