Design Assist 101: Enacting Efficient Construction and Legal Protection
By: Jackson S. Nichols and Matthew R. Skaroff
Efficiencies and construction are a natural fit, or at least that is the hope of contractors, owners, and designers. Since the first brick was laid, builders have been looking for ways to build more efficiently. To that end, the construction industry has developed and used various construction delivery models and design processes for projects over the years—continually working out the kinks and improving the processes while also trying to determine who bears what risks and the related responsibilities.
Although the general idea of “design-assist” has been present in the construction industry for some time, it was not a formal and widely understood concept until recently. As design-assist has become more popular and better understood, more contractors are learning to use it on projects with better results and fewer disputes. The key to doing so is a clear understanding of what it is and how it differs from other processes, such as delegated design, as well as having contractual language that reflects that clear understanding.
What is Design-Assist?
Simply stated, design-assist is a process that typically involves specialty subcontractors providing input during the design process to encourage efficiencies in the construction process and the final structure.
Most often, these efficiencies manifest themselves as cost savings. A steel fabricator, for example, may recommend changes to the design concept that would result in less steel being used in the overall project or a reduction in fabrication time (which, in turn, would result in a faster project delivery time). Efficiencies may also appear in the form of a more functional structure, such as one that uses less energy or has a longer lifespan.
The underlying design-assist idea is that a specialty subcontractor knows its area of work best and has substantial insight that the design team otherwise may be missing.
Potential Pitfalls with Design-Assist
A significant pitfall in the design-assist process can be the unclear shifting of risk because the parties have not articulated their respective responsibilities during the process. Parties frequently fail to delineate such risks and responsibilities in their contracts at the project’s outset, leading to disagreements and legal disputes.
Until recently, there has been no standard form of contract for design-assist, leading to confusion during the design process for many projects. In the worst cases, subcontractors have signed contracts during the design phase in which they provide a fixed price for construction while agreeing to simply provide “design-assist services” without any further explanation. When the design is complete and the costs have risen for reasons unrelated to the subcontractor, the subcontractor is nevertheless expected to provide the work for its original price. In such circumstances, parties have argued that because subcontractors participated in the development of the design, they must honor their price. These scenarios have obviously caused disputes.
In one such dispute in Massachusetts, Coghlin Electrical Contractors Inc. v. Gilbane Building Company, a lawsuit arose from disagreements over a subcontractor’s responsibility for extra costs on a project during construction where the subcontractor provided preconstruction consulting services during the design phase. The Massachusetts Supreme Court ruled that to determine responsibility, a lower court needed to parse through the subcontractor’s involvement during the design phase to see if the subcontractor’s actions then had a connection to the extra costs. Unfortunately, the parties became embroiled in costly litigation because they failed to articulate responsibilities during the design phase.
Clarity Brings Efficiency
Fortunately, however, industry practice continues to evolve to promote a greater understanding of the design-assist process, leading to clearer contracts. Industry leaders such as the American Institute of Architects and the American Institute of Steel Construction have promulgated papers and seminars to educate members of the construction industry. With increased understanding in the industry, parties are more likely and able to engage in the design-assist process efficiently and with fewer disagreements.
Additionally, standardized design-assist contracts have started to appear. These contracts generally contain clear and detailed information as to exactly what services a design-assist subcontractor agrees to provide, as well as the respective liabilities the subcontractor explicitly accepts.
A clear design-assist contract should explicitly define the agreed-upon “design-assist services.” These may include, among other things:
- Offering value engineering
- Preparing cost estimates for specific work
- Providing estimated scheduling information
- Evaluating constructability
- Reviewing specifications
Of course, the list of “design-assist services” is only limited by the parties’ creativity and the extent of beneficial information that a specific subcontractor can provide.
By having design-assist services explicitly defined in a contract, the parties can better manage their expectations. More detail also provides a better reference point to resolve disputes. For example, if the parties in Coghlin had a clear design-assist contract that explained in detail each service the subcontractor was required to provide, they might have avoided their dispute altogether. The parties also could have potentially avoided conflict if they split their design-assist and construction obligations into two separate contracts.
The Difference between Design-Assist and Delegated Design
Design-assist is often confused with delegated design, but it is important to distinguish between the two concepts. Delegated design transfers design responsibility for a component of work from the designer to a specialty subcontractor. The specialty subcontractor will usually bear responsibility for both designing the component and building it, and if the design is faulty or unconstructible, the subcontractor is responsible.
In comparison, when a subcontractor provides design-assist services, the subcontractor merely provides information to the design team to assist the designer of record with design development. Unless design responsibility is explicitly delegated, the designer of record remains responsible for creating all components of the design, even if design-assist is provided.
Design-assist and delegated design are distinct concepts and should not be confused with one another, though the processes can be used together concurrently.
Using Design-Assist while Protecting Yourself Legally
Design-assist provides a powerful tool to increase efficiency on a project. But in order for it to be used properly, the parties must have a thorough understanding of what it is and what the expectations are. The parties also must have a clear contract that reflects that understanding. By approaching design-assist with that in mind, project participants can better ensure they have proper legal protection while making good use of the efficiencies that design-assist promotes.
