Design liability under construction contracts – a crib sheet

• What type of contract are you being asked to sign?

  If you’re a contractor and being asked to sign a design and build contract or your contract includes a Contractor’s Design Portion, then you will be responsible to provide that design. If you’re not intending to provide any design work, then you should consider signing up to a standard building contract.

  

• Check your scope of work

  Even if you have not assumed responsibility for design via your choice of contract or you’ve not agreed to a Contractor’s Design Portion, then you should take care to ensure that your scope doesn’t then include anything that would be considered as design work or suggests you’re taking responsibility for another consultant’s design.

• Check the design provided by the client or its consultants

  You may find yourself assuming an element of design liability even if you’ve not agreed to provide any. If you have had to make a choice about the way that part of the works is constructed, or the materials used where the design provided to you by the client’s consultants does not provide such details then you could be liable to the employer in the event of any defects.

• Exclude design services

  You can manage your responsibilities by ensuring that your scope of work sets out what you are responsible for providing but also what you’re not responsible for providing. A clause excluding your responsibility for design work is helpful to clarify your responsibilities, but still take care not to take responsibility for design decisions on the job that you then may need to stand behind.

• Is there a design team?

  A client on a larger project will often have engaged a design team to provide the original design. If you’re given that design to work to, but you’re also asked to take on any or all of the design responsibilities, then consider whether the original designers should be novated to you so they are on the hook to the extent there are issues with their design.

• Fitness for purpose

  If you’ve been engaged to provide design services and your client has provided even a brief explanation of what the structure is intended to be used for, then your design will need to be fit for that purpose. For example, if they’ve told you a floor is going to be used to store heavy machinery then you’ll need to make sure you understand what that entails so you can ensure you’re designing to meet those requirements.

• Subcontracting the design

  If your client wants you to be responsible for the design on a project, but there are elements you’re not comfortable delivering, then you’ll likely choose to subcontract. You’ll still be responsible to the client for the whole design, irrespective of you having subcontracted elements of it, so you should make sure that your subcontractor has the right skillset and its design obligations match your obligations to the client.

Design responsibility has to sit somewhere in a construction project, so whoever it sits with has to make sure they understand what they have to deliver and that they or their subcontractors have the knowledge and skills to deliver it.