The Design/ Bid/ Build procurement methodology incorporates the traditional relationships between the Employer, the Engineer/ Architect/ Contract Administrator, and the Contractor by separating the design from the construction phases of a project. First, the Employer hires the Engineer/ Architect/ Contract Administrator to perform the design. Then upon design completion, the Employer hires the Contractor to perform the construction.

In considering risk apportionment,  with Design/ Bid/ Build procurement in general, distinct obligations, or duties of care, are imposed upon the Employer and the Contractor. The responsibility to exercise ‘reasonable skill and care’ ultimately belongs to the Engineer/ Architect but the Employer faces the immediate liability.  This means the designer must perform his duties according to the established industry practice, and professional standards upheld at the time the design was carried out.  However, as the immediate liability sits with the Employer, he must be vigilant in ensuring the Designer is performing his duties appropriately.

Through a Service Agreement with the Employer, the Designer may be enlisted to perform dual functions. The first role is as the ‘designer’ of the work and the other in the capacity of an agent of the Employer to discharge contract administration duties. As an agent of the Employer, the Designer is sufficiently empowered to ensure the Contractor adheres to the completed and agreed design.

The Contractor is retained by the employer to build the project under a separate contract. This contract should also include the duties of the Engineer/ Architect as an agent of the Employer so that the Contractor’s interaction with the Engineer/ Architect is well defined.

The timeline for the Design/ Bid/ Build procurement methodology requires that the design is completed prior to engagement of the Contractor so that the price for the project can be determined with greater accuracy. As a result, a complete and accurate design can ensure a better quality of contract documents as well as greater overall cost certainty (and helps to avoid disputes).  However, this comes at the expense of any ‘early contractor involvement’ and is not suitable for Employers seeking to fast-track their projects.

In most cases as far as liability is concerned, the Contractor is not responsible for building elements he has not designed, and therefore, the Employer typically cannot seek damages from the Contractor for design defects. Nevertheless, the Contractor may be liable, under the obligation of a ‘duty to warn’ if a defective design is encountered but not brought to the attention of the Employer within a predefined procedure.  However, the Employer remains entitled to seek damages from the Contractor for defects in the workmanship and materials of the construction.

This form of project delivery can offer the following benefits:

• The certainty of costs.
• Control over design for the Employer.
• Limited design liability for the Contractor.

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