Blockquote icon
You may find yourself assuming an element of design liability even if you’ve not agreed to provide any design

Introduction

Main contractors and clients will often look to a contractor to take on design responsibility under a construction contract. If you’re an architect or a structural engineer then this might sit comfortably with you, but for other contractors, consultants, trades and suppliers whose skills and expertise lie outside of construction then its important you’re not signing up to something that’s inappropriate for your business.

  • 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.

    Risk Umbrella

  • 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.

Alex Melrose Principal

Written by Alex Melrose
Principal at My Inhouse Lawyer

One of our values (Growth) is, in many ways, all about cultivating a growth mindset. We are passionate about learning, improving and evolving. We learn from each other, use the best know-how tools in the market and constantly look for ways to simplify. Lawskool is our way of sharing with you. It isn’t intended to be legal advice, rather to enlighten you to make smart business decisions day to day with the benefit of some of our insight. We hope you enjoy the experience. There are some really good ideas and tips coming from some of the best inhouse lawyers. Easy to read and practical. If there’s something you’d like us to write about or some feedback you wish to share, feel free to drop us a note. Equally, if it’s legal advice you’re after, then just give us a call on 0207 939 3959.

Like what you see? Book a discovery call

How it works

1

You

It starts with a conversation about you.  What you want and the experience you’re looking for

2

Us

We design something that works for you whether it’s monthly, flex, solo, multi-team or includes legal tech

3

Together

We use Workplans to map out the work to be done and when.  We are responsive and transparent

Like to know more? Book a discovery call

Freedom to choose & change

MONTHLY

A responsive inhouse experience delivered via a rolling monthly engagement that can be scaled up or down by you. Monthly Workplans capture scope, timings and budget for transparency and control

FLEX

A more reactive yet still responsive inhouse experience for legal and compliance needs as they arise.  Our Workplans capture scope, timings and budget putting you in control

PROJECT

For those one-off projects such as M&A or compliance yet delivered the My Inhouse Lawyer way. We agree scope, timings and budget before each piece of work begins

Ready to get started? Book a discovery call

How we can help

Help Boxes Desktop
Help Boxes Mobile

Like what you see? Book a discovery call

Recent Posts

30 September 2021

Hybrid working – is it a way forward?

16 September 2021

Can you dismiss an employee who refuses to return to the office?

16 September 2021

Can we require employees to get vaccinated?

27 August 2021

How good is your cybersecurity?

27 August 2021

They’re using my brand!

12 April 2021

Crib sheet on data breaches – what to do

12 April 2021

Employment law update April 2021

12 April 2021

Design liability under construction contracts – a crib sheet

14 January 2021

GDPR Crib sheet, some golden rules

13 January 2021

Crib sheet on GDPR post Brexit, 10 step procrastinators guide