Collaborative Strategies for Design Assist and Delegated Design for Successful Project Delivery

By Daniel M. Eggleston, Esq. and Cassidy M. Flood, Esq.
Lee/Shoemaker PLLC

Construction projects increasingly rely on collaboration between the construction and design teams to deliver the best project for the best price, with owners engaging contractors to provide preconstruction services to support the development of the design. When performed as intended, this collaboration leverages the expertise of both design team and construction team, leveraging the creative vision and technical knowledge of each party to deliver the Project in a cost-effective manner. The benefits of construction team and design team collaboration are fully realized only when their respective roles and responsibilities are clearly defined by contract. Where design responsibilities are ambiguous, change orders,  delays, and claims can result. There are two primary vehicles for delivering this collaboration: Design Assist and Delegated Design. While both concepts involve construction team input into the design process, they differ significantly in timing, scope, and allocation of responsibility.

What is Design Assist?
Design Assist reflects a collaborative approach where members of the construction team join the design team early in the design process, ideally to review the design for both constructability and budgetary issues. The construction team’s early involvement helps flag potential issues in the design, long before a fixed price is established, to minimize (and ideally avoid) RFIs and change orders tied to questions raised about the design. In Design Assist, the construction team offers input into constructability, code interpretation, phasing, and long-lead materials, among other items. By incorporating contractor expertise during design, the parties can realize enhanced design feasibility, improved cost efficiency, and realize better functionality. 

Identifying constructability concerns early avoids dealing with those issues during construction, when fixed pricing and schedules have been established. Additionally, the construction team’s cost insights help control costs from the outset, reducing the need for value engineering and substitutions later. Rather than taking ownership—i.e., liability—of design elements, the construction team generally serves in an advisory capacity only, without assuming professional responsibility for the final design.

While the contractor may not assume professional responsibility for the final design when performing Design Assist services, Design Assist services are not without risk to the contractor. For example, if the contractor recommends use of a particular product as a lower cost alternative to a specified product, the owner and design team likely anticipate that the contractor has considered the functionality of the product (does it perform the same as the product proposed by the design team?), the constructability of the product (does it create construction challenges/issues with other elements of the design?), and the cost of the product (does the change in product really result in savings?). As the contractor’s team providing Design Assist services may be different from the contractor’s team executing the construction of the project, the prudent design professional may want to maintain contemporaneous records documenting recommended modifications by the contractor so that changes recommended by the contractor as part of their preconstruction services do not result in change orders to the owner during construction.

What is Delegated Design?
The main differences between Delegated Design and Design Assist relate to timing (in that Delegated Design occurs after design is completed but before construction in the field) and liability allocation (in that the construction team is legally responsible for the design when providing Delegated Design services). In terms of timing, the design team identifies a particular system as being Delegated Design in the bid documents, along with performance criteria, which the contractor prices into its bid and then designs via its subcontractor design professional. While the contractor typically provides a submittal for Delegated Design, that submittal bears the stamp and seal of the contractor’s delegated design engineer (if required) and is often reviewed “for information purposes only.”

Delegated Design offers significant benefits for both complex projects and elements of more “typical” projects which are often dependent on the contractor’s preferred means, methods, and/or sequencing of construction (e.g., fire sprinkler systems, truss design, and steel connections). This can result in more innovative and more cost-effective solutions for the design components delegated to the contractor, as contractors often engage specialized design professionals to design the particular system or component for which they are responsible.

Although a Delegated Design element of a project is often apparent from a review of the plans, specifications, and industry practice, disputes can arise where the design team believes that an element of the project is a Delegated Design but the contractor believes it is not. Disputes related to Delegated Design can also arise through exclusions/clarifications provided by the contractor to the owner, which may (or may not) be shared with the design team prior to finalization of the construction contract. If the design team anticipates there being Delegated Design of an element of the work, but the contractor excludes it from their scope, this scope gap can affect both cost and time for project delivery.

Conclusion
Collaboration between contractors and design professionals can be a powerful tool for improving project outcomes. Whether through Design Assist’s early collaborative input, or through Delegated Design’s more formal transfer of design responsibility, both approaches can enhance project delivery if properly executed.

The key to success lies in clearly defining and documenting the scope and extent of collaboration, and ensuring that both parties understand their roles and responsibilities. When framed by appropriate contractual provisions, both Design Assist and Delegated Design can transform the typically guarded posture between the design team and construction team into one that also recognizes a mutually beneficial partnership.

Daniel M. Eggleston and Cassidy M. Flood are lawyers at Lee/Shoemaker PLLC, a law firm devoted to the representation of design professionals, in DC, Maryland, and Virginia. The content of this article was prepared to educate related to potential risks, but is not intended to be a substitute for professional legal advice.