The Design & Build procurement approach delegates the design component of a project to the Contractor rather than the Employer’s designer, as would otherwise be the case under the typical Design/ Bid/ Build scenario. This, in effect, transfers the design responsibility, and all associated risks, from the employer to the main contractor.

The overall intention of the design/build principle is to presumably save time, and therefore money by entering into a construction contract with a minimally detailed scope of work.

The other advantage in the design/build approach is the ability to have the completed design work in stages, or by ‘fast-tracking’. In this way, the construction can work on the initial stages of the design without having to wait for the design to be completed in its entirety.

True Design/Build contracts contain provisions for both the design and construction components of the project. These provisions include the methods of how the design and construction will take place and it is not uncommon for the Contractor’s responsibilities to be extended from ‘reasonable skill and care’ to ‘fitness for purpose’.  It is important to note that the Contractor has liability for defective design, and even if he has complied with the specifications in the contract.

Depending on specific arrangements, this procurement approach may involve complex novation arrangements, or at least an undertaking by the Contractor to be willing to later enter into an agreement to assume responsibility for design.  These novation agreements attempt to clearly transfer the design risk to the Contractor, and away from the Employer.

If the payment structure of the design/build contract is a lump sum or other fixed fee, the price for the undefined scope of work may be difficult to determine in a competitive bidding forum. This invites opportunities for the Contractor to embellish and over quantify his “risk” allowances.

It is in the employer’s interest to specify the elements that are critical; these are often referred to as the Employer’s Requirements, and this would include performance specifications, standards of finish, and other items of high importance to the employer. Otherwise, the main contractor will most likely select the least costly item, or methodology, at the expense of quality since it may be within his contractual rights to do so. This presents challenges in Change Control, and by extension, Cost Control.

Design/build contract do not generally offer independent quality control over the design elements since this is a part of the main contractor’s design obligations. This, in turn, can lead to ‘standard of care’ challenges for the Employer’s Agent (a defined role in some standard forms of contract) whose responsibility is to certify that the main contractor has fulfilled his/her ‘quality’ obligation. Hence, great emphasis is placed on devising and implementing change control procedures.

When determining whether the Design/Build Contract is suitable for a project, it is important to consider factors such as the points of responsibility, the nature of the project, and the time constraints.

The Design/ Build approach is suitable for projects where the Employer is seeking a single point of responsibility, which ideally may result in a reduction of claims based on design-related issues.

The nature of the work should also be considered in the context of suitability.  This procurement approach is not recommended when a project contains unique or highly complex architectural or structural elements or if the Contractor is not experienced in the Design/ Build methodology.

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