Prime contract between the owner and design-builder
The following standard design-build contract forms are widely used in the United States:
- DBIA – DBIA’s documents are very common in design-build project delivery. At the time of this writing, most of DBIA’s 26 standard contract documents were published in 2010 and 2012. DBIA documents are used in both vertical construction and horizontal (infrastructure) work.
- American Institute of Architects (AIA) – AIA has approximately 11 contract documents specific to design-build, most recently published in 2014-2015. AIA’s design-build documents are used largely on vertical construction projects.
- Engineers Joint Contract Documents Committee (EJCDC) – A joint venture of the American Society of Civil Engineers (ASCE), American Council of Engineering Companies (ACEC), and the National Society of Professional Engineers (NSPE), EJCDC has a family of 16 design-build documents in its D-series, most recently published in 2016. These are used largely for horizontal projects.
- ConsensusDocs – ConsensusDocs is a coalition of approximately 40 industry organizations, led by the Associated General Contractors of America (AGCA). ConsenusDocs’ 400-series set covers design-build delivery and includes 22 documents, most recently updated in 2017, and primarily used on private projects.
The document used for a given design-build project may depend on the entity selecting or recommending the form of contract. In the author’s experience, owners seem to prefer DBIA contracts, contractors are inclined toward DBIA or ConsensusDocs, engineers recommend EJCDC, and architects prefer AIA or DBIA. These are, of course, extremely broad generalizations. The form of the prime contract documents may have a strong influence on the associated construction specifications and are established before the latter are prepared.
The entity selecting the form of the design-build prime contract should be familiar with the risk allocations and responsibilities set forth in the owner–design-builder prime contract, and should consider them in conjunction with the owner’s project goals.
In addition to the owner–design-builder agreement, general conditions, and supplementary conditions, an essential element of the prime contract is the document(s) DBIA calls “owner’s project criteria.” EJCDC refers to them as “conceptual documents” and the AIA’s corresponding term is “owner’s criteria.” In the industry, the informal term “bridging documents” is often used.
Owner’s project criteria
Documents comprising the owner’s project criteria are separate from the design-builder’s construction specifications and drawings. As the name implies, the owner’s project criteria set forth the owner’s requirements for scope, extent, performance, and quality for the completed project. Conceptual requirements set forth in the owner’s project criteria documents typically do not contain traditional construction specifications, but owners desiring a high degree of control over the project’s outcome may include them in the owner’s project criteria.
Instead of being prepared by the design-builder’s design professional(s), the owner’s project criteria are drafted by either the owner’s employees or a third-party consultant. Owner’s project criteria are typically not sealed and signed because they are not intended as design or construction documents.
When retained, an owner’s consultant is typically charged with helping the owner draft the design-build prime contract and request for proposals (RFP), preparing the owner’s project criteria, and assisting the owner in evaluating proposals and selecting the design-builder. On some design-build projects, owner’s consultants may have additional responsibilities.
The owner’s project criteria may be as brief as one page or as exhaustive as 400 or more pages of text and dozens of conceptual drawings, depending on the extent of design freedom the owner grants the design-builder. The completeness of the project’s overall definition in the owner’s project criteria varies widely, although 10 to 20 percent may be common. However, in ‘progressive’ design-builds, the project definition set forth in the owner’s project criteria is typically one to five percent complete (Progressive design-build is a form of design-build in which the project’s definition is quite low at the time the parties enter into the prime contract, allowing the owner and design-builder to collaborate in defining the project’s scope and quality requirements without preconceived constraints. In progressive design-builds, the design-builder is typically retained based on qualifications, rather than qualifications and a price proposal. The Engineers Joint Contract Documents Committee [EJCDC] and Design-Build Institute of America [DBIA] publish progressive design-build agreement forms.). In other cases, the owner’s project criteria may be quite voluminous and advance the design to 50 percent or more. Axiomatically, the greater the design definition at the time the prime contract is signed, the fewer and smaller are the benefits to the owner of using design-build as a project delivery method.
Whether the owner’s project criteria documents keep the design-builder on a short or long leash depends on the extent to which the owner trusts its design-builder and desires to encourage design innovation. Obviously, the level of project definition and detail in the owner’s project criteria strongly affects preparation of the associated construction specifications.
How much the owner trusts the design-builder will likely hinge on whether the owner can simply choose a design-builder (as in private work) or the selection will be through an open process of competitive proposals (typical for public work) as well as the owner’s prior experience with design-build. Owners less-experienced with design-build may prefer to retain greater control over the design and, hence, often issue more detailed and prescriptive owner’s project criteria.
Regardless, in preparing the owner’s project criteria, care and professional judgment must be exercised, together with due consideration of the owner’s project goals.
Owner’s project criteria documents commonly employ ‘performance specifying’ (i.e. setting forth performance requirements for the completed project) and indicate the options or features expressly required by the owner, as opposed to detailed, descriptive specifying or proprietary specifying (i.e. indicating manufacturers and products by name).
Relying on performance specifying may also help shield the owner from design-builders’ claims asserting the Spearin Doctrine. Under a 1918 U.S. Supreme Court decision (United States vs. Spearin, 248 U.S. 132), a contractor is not responsible for defects in owner-issued construction documents employing prescriptive requirements. However, under a later case (Fru-Con Constr. Corp. vs. United States, 42 Fed. Ct. 94, 1998), it was determined performance specifications are not actionable as the Spearin Doctrine claims.
At least two entities publish performance-based master guide specifications, either suitable for or expressly intended for use as owner’s project criteria for certain types of design-build projects, including the U.S. Naval Facilities Engineering Command’s (NAVFAC’s) Design-build Master Request for Proposals templates. This includes design-builder solicitation documents, design-build prime contract documents, and performance specifications templates for 10 different types of common U.S. Navy shore-based facilities. The second system is a commercially available family of master guide performance specifications for vertical construction.
Regardless of their source documents, owner’s project criteria are the requirements the completed project must achieve and against which the design-builder’s work will be judged. They are the ‘rules’ the design-builder’s construction specifications and drawings must satisfy.