The task of drafting and finalizing the design is an early hurdle in a major construction undertaking. In an effort to speed up the project or lower up-front costs, a "hurdle" that may not always be given due consideration by the Owner. While it may be tempting to rubberstamp an engineer's initial design, or blindly rely on a manufacturer's product literature, such a practice can ultimately have a disastrous impact on a project's completion date and price tag or--as recently exemplified by the Boeing 737 Max design flaws---pose a grave safety concern. What liability does an Owner face when specifications it has drawn from the Architect or Engineer's design and design information do not work as promised, or are commercially impracticable for the scope of work and/or the duration of the contract? In large public or private construction the Owner is frequently a "middleman". Can the Owner claim "not me" while pointing to its Contractor on the one hand, or to the Owner's Engineer or Architect or to the supplier of a device or product of what is-- or is construed to be-- a sole source procurement? Can the Owner offset a contractor's claim that it had no duty to second guess the design or the capability of the product? Or that it had a duty to perform any due diligence? What if the Owner is a large manufacturing company with multiple divisions, including oversight or engineering disciplines, or a public agency for a State or large municipality or authority with building and public works departments? But then what happens when the designer is part of a Joint Venture partnership under a Design-Build project delivery method? Do you shoot your JV partner, the Owner, or who? And what are the limitations of recovery under the economic loss doctrine, depending on the location of the project or venue clause in a JV agreement?
Upon completion of this session, participants will be able to:
- Understand the respective standards of care for professionals from two disciplines; from a Design-Bid relationship to a Design-Build situation.
- Recognize that an Owner and/or Engineer have a level of responsibility when developing specifications to investigate and confer with its design team to ensure each party is aware of the Project objectives and the material issues that pose potential difficulties or impediments to construction.
- Understand what are the available avenues of recovery in a Design-Bid v. Design-Build relationship available to the General Contractor and how does the Economic Loss Doctrine factor in?