Design-build construction specifications
Design-build construction specifications are different from the owner’s project criteria. Construction specifications and drawings are prepared, sealed, and signed by the project’s design professional(s), and are the basis for constructing the project.
At the outset of the construction stage, all projects, regardless of delivery method, must have adequate drawings and specifications. The difference between design-build and more traditional types of project delivery (DBB, DNB, CMa) is that, in the former, the construction specifications and drawings are prepared after the owner has retained the builder, and are drafted by either the design-builder itself or by its consultant (i.e. the project’s design professional). All standard forms of owner–design-builder prime contract in widespread use in the United States require the design-builder to submit its construction specifications and drawings to the owner for approval before commencing construction.
While the owner gets to approve the construction specifications and drawings, the only changes that can be enforced on the design-builder without an appropriate contract modification are the ones consistent with the owner’s project criteria.
Although the level of detail and ‘prescriptiveness’ of design-build construction specifications may vary from the ones prepared for DBB, DNB, CMa, and CMAR, they are organized in accordance with CSI MasterFormat and SectionFormat just like more traditional specifications.
The alternative standard forms of owner–design-builder prime contracts in widespread use in the United States take different approaches to the term used for specifications. For example:
- DBIA uses the term “Construction Documents” (encompassing both specifications and drawings);
- AIA uses “Instruments of Service” (includes specifications, drawings, and other documents); and
- EJCDC employs “Construction Specifications,” “Record Specifications,” “Construction Drawings,” and “Record Drawings.”
The drafter of construction specifications for a design-build project should carefully coordinate the construction specifications with the associated prime contract, including appropriately using defined terms.
As described throughout this article, design-build construction specifications are different from the ones for DBB, DNB, CMa, and CMAR projects. However, most master specifications, whether maintained by a consulting engineering, architecture firm, or commercial third-party master guide specifications, are written for DBB projects. The time and effort needed to tailor DBB source specifications for a design-build project can be substantial and is often greater than the effort to merely tailor existing DBB specifications for a given DBB project. Design professionals should factor into their budgets and schedules the time and effort needed to properly adapt DBB specifications for design-build. Due to the many variables affecting construction of work results in a design-build project, there may never be a master guide specification prepared expressly for design-build projects.
Are construction specifications a part of the contract documents?
Under the prime contract, the design-builder is responsible for designing, constructing, and delivering a completed project consistent with the owner’s project criteria and other prime contract documents. As part of the work, the design-builder prepares construction drawings and specifications.
How the design-build construction specifications should be written depends, in part, on whether they will become part of the prime contract documents. Not all standard design-build prime contracts in widespread use in the United States treat this matter equally.
DBIA 525–2010, Standard Form of Agreement between Owner and Design-Builder–Lump Sum, indicates at Section 2.1 what constitutes contract documents, including “Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions,” thus expressly making the specification and drawings part of the prime contract. Section 2.4.2 of DBIA 535–2010, Standard Form of General Conditions of Contract between Owner and Design-Builder, also says, “Design-builder shall proceed with construction in accordance with the approved Construction Documents.”
AIA A141–2014, Standard Form of Agreement between Owner and Design-Builder, uses the term “Design-Build Documents,” to indicate what comprises “the contract,” as follows:
1.4.1 … The Design-Build Documents consist of this Agreement … and its attached Exhibits (hereinafter, the “Agreement”); other documents listed in this Agreement; and Modifications issued after execution of this Agreement.
Also, Article 16, “Scope of the Agreement,” of AIA A141–2014 is a more detailed listing of what constitutes “the Agreement.” It includes a space for tailoring by the drafter of the project agreement, but the default language of Article 16, and elsewhere in AIA A141–2014, does not indicate specifications or other instruments of service are part of the design-build documents (prime contract). Nowhere does the model language of AIA A141–2014 require the design-builder to construct the project in accordance with the instruments of service. This appears to allow the design-builder considerable latitude in how it implements the project, as long as the completed project is consistent with the owner’s criteria, which are set forth in Section 1.1 of AIA A141–2014.
EJCDC D-520–2016, Agreement between Owner and Design-Builder on the Basis of a Stipulated Price, establishes what constitutes contract documents in Paragraph 7.01. It does not include construction specifications or drawings. However, Paragraph 7.01.A.11.c incorporates “Record Drawings and Record Specifications” as contract documents.
Also, EJCDC D-700–2016, Standard General Conditions of the Contract between Owner and Design-Builder, Paragraph 7.02.A, requires:
Design‐Builder shall perform and furnish the Construction pursuant to the Contract Documents, the Construction Drawings, and the Construction Specifications, as duly modified.
However, under EJCDC’s documents, the design-builder has the right to modify its own construction drawings and specifications, as long as they remain in accordance with the contract documents, including the owner-prepared conceptual documents.
EJCDC’s rationale for excluding construction specifications and drawings from the contract documents is to allow the design-builder appropriate latitude with how it implements the construction. EJCDC’s rationale for including “Record Drawings and Record Specifications” as contract documents is for the owner’s enforcement of the contractual correction period and warranty obligations (This article’s author was intimately involved in drafting EJCDC’s 2016 D-series documents.).
In addition to the above, many non-standard design-build prime contracts reviewed by this article’s author include construction specifications and drawings as part of the prime contract documents. Practices are inconsistent as to whether construction specifications and drawings are part of the owner–design-builder prime contract and thus enforceable by the owner.
When the construction specifications are part of the prime contract, it is essential for them to be closely coordinated with the latter’s provisions. For example, construction specifications should consistently use the same terms defined in the prime contract’s general conditions or elsewhere in the contract.
It may occur to some drafters of design-build construction specifications that are to be part of the prime contract that errors or omissions in such coordination may, possibly, work to the benefit of the design-builder and its subcontractors, such as the project’s design professional. However, failing to properly coordinate the specifications with the prime contract could, possibly, breach the standard of care and, if done knowingly, be fraudulent. Therefore, when the specifications are contract documents, it is important for design professionals to properly coordinate construction specifications with the owner–design-builder contract.
A related matter is whether the construction specifications and drawings are part of the construction subcontracts awarded by the design-builder.
Paragraph 13.01.A.3 of EJCDC D-523–2016, Construction Subcontract for Design-Build Project, includes in the construction subcontract:
Exhibit A—Scope of Subcontract Work. [Typically include from the Design-Build Contract: Specifications, Division 01 (attach to exhibit); other expressly identified Specification sections (attach to exhibit); Drawings (incorporate by reference if not attached); delegated design requirements, if any.]
Section 9.1.3, “the Specifications,” in Article 9, “Enumeration of the Contract Documents,” of AIA A142–2014, Standard Form of Agreement between Design-Builder and Contractor, includes space to indicate the relevant specifications.
Section 1.2.1 of DBIA 555–2010, Standard Form of Agreement between Design-Builder and General Contractor—Lump Sum, defines construction documents as including drawings and specifications. Section 1.3 lists the contract documents, under which Section 22.214.171.124 includes the construction documents.
Thus, the standard construction subcontract forms for design-build uniformly and expressly include construction specifications and drawings as part of the subcontract.