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AIA Continuing Education
Hall & Company is a Registered Provider with the American Institute of Architects Continuing Education Systems. Credit earned based on the completion of this program will be reported to AIA/CES for AIA Members. Please send your AIA member number to [email protected] after the presentation for reporting.
This program is registered with the AIA/CES for continuing professional education. As such, it does not include content that may be deemed or construed to be an approval or endorsement for the AIA of any material of construction or any method or manner of handling ,using, distributing, or dealing in any material or product. Questions related to the specific materials, methods, and services will addressed at the conclusion of this presentation.
Liability Liability for for “Delegated Design” “Delegated Design” -- Understanding Understanding
and Avoiding Risks to Design and Avoiding Risks to Design ProfessionalsProfessionals
Presented byPresented byWilliam S. Thomas, Esq.William S. Thomas, Esq.
Pitzer Snodgrass, PC [email protected]. Louis, Missouri pspclaw.com
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One World Trade Center One World Trade Center –– Freedom TowerFreedom TowerArchitectArchitect: : Skidmore, Owings & MerrillSkidmore, Owings & Merrill
Heydar Aliyev Cultural Heydar Aliyev Cultural Centre Centre -- Baku, Baku, AzerbaijanAzerbaijanArchitectArchitect: Zaha Hadid : Zaha Hadid ArchitectsArchitects
DELEGATION FAILS
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#1 Delegation Fail
• “Sorcerer’s Apprentice” Mickey
#1 Delegation Fail
• “Hired” a Subconsultant
#1 Delegation Fail
• Things get all fouled up
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#1 Delegation Fail
• Sorcerer has to roll back the stone
DELEGATED DESIGN
Delegated Design
•A well established practice
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Project Delivery Systems
•Design-Bid-BuildD i B ild•Design-Build
• Integrated Project Delivery
Delegated Design
•Design Professional LeadS i lt D i•Specialty Designer
Types of Specifications
•ProprietaryR f•Reference
•Prescriptive•Performance
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Contract Documents
•ContractsD i•Drawings
•Specifications•Addenda
•Shop Drawings?
INDUSTRY REACTION TO DELEGATED DESIGN
Shared/Delegated Designin Action
IPD d BIM i th i• IPD and BIM is on the rise•Building product manufacturers embrace shared design
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Rea
ctio
n
28%28% 49%49% 71%71%
2007 2009 2012
Indu
stry
R
Levels of BIM Adoption in North America
*The Business Value of BIM in North America SmartMarket Report
CASE STUDY #1
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STATE REGULATORS REACT TO DELEGATED DESIGN
Missouri
20 CSR 2030-21.020“Engineer of Record and Specialty Engineers”
• Definitions• Communication• Performance• Responsibility
California
Title 21, Division 1 – 21 CCR § 16“Designation of Responsibilities”
• Public School Standards• Definitions• Delegation Allowed• Responsibility
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New York
Title 8, § 29.3“General Provisions for Design Professions”
• Definitions• Delegation Not
“Unprofessional Conduct”• Responsibility
BUILDING CODES REACT TO DELEGATED DESIGN
International Building Code
Section 107.3.4.1“Examination of Documents – Deferred Submittals”
• Definitions• Review and Approval
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INDUSTRY FORM DOCUMENTS REACT TO
DELEGATED DESIGN
AIA Form Document Series
AIA A201-2007, § 3.12.10“General Conditions”
• “If professional design services … are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy.”
AIA Form Document Series
Section 013300, Article 2.2“MasterSpec”
• Contractor is to provide the design professional lead with a submittal “signed and sealed by the responsible design professional, for each product and system specifically assigned to Contractor to be designed or certified by a design professional.”
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Consensus DOCS 300
Section 12.6 Design Build Work“Standard Tri-Party Agreement for Integrated Project Delivery”
• Contractor is to provide the design professional lead with a submittal “signed and sealed by the responsible design professional, for each product and system specifically assigned to Contractor to be designed or certified by a design professional.”
CASE STUDY #2
TenantTenant LenderLender
DesignDesign‐‐BuilderBuilder
Owner/DeveloperOwner/Developer
Special Special InspectorInspector
Steel FabricatorSteel Fabricator
Panel ManufacturerPanel Manufacturer
Panel ErectorPanel Erector
Steel ErectorSteel Erector
Structural Structural SubconsultantSubconsultant
Design Design Professional Professional
LeadLeadDesign Design
ConsultantConsultant
Design Design ConsultantConsultant
Sub
cont
ract
s
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Lessons
• Clear lines of responsibility in the contract documents
• Clarity and specificity of information in the design documentsdesign documents
• Coordination and follow-through during submittals
• Otherwise, leave it to someone else to assign that responsibility – usually points to designer
CASE LAW RESPONSE TO DELEGATED DESIGN
Restatement of Torts(3d):
• Component Parts• “Substantial Participation”
R M t i l S liaw • Raw Material Supplier Defense
• Sophisticated Purchaser Rule
Cas
eLa
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aw
Restatement of Torts(3d):
• “Substantial Participation”• By invitation or playing a
b t ti l l i
Cas
eLa substantial role in
decision making
aw
Missouri
Duncan v. Mo. Board for Architects744 S.W.2d 524 (Mo. App. 1988)
• Contract required EOR to perform “all”
Cas
eLa
structural engineering services• Regulations require professional
responsibility by the EOR• Custom and practice overridden by the clear
requirements of the statutes• “Statute imposes liability for design whether
designed them or not…non-delegable…”
aw
Missouri
BMA v. Graham891 S.W.2d 438 (Mo. App. 1994)
• Marble panels began to fall off building
Cas
eLa
• Owner sued architect, in part claiming negligent approval of shop drawings “without determining if it complied with the Kansas City building code”
• Alleged failure made part of a claim for punitive damages
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aw
Oklahoma
Waggoner v. W&W Steel Co.657 P.2d 147 (Ok. 1982)
• Hospital project where failure occurred
Cas
eLa
during construction due to lack of temporary bracing
• Standard set of AIA documents for the project – periodic observation and shop drawing approval
• Court held contractor responsibility
aw
Rhode Island
Lutz En’g. v. Industrial Louvers, Inc.585 A.2d 631 (RI. 1991)
• First round of shop drawings rejected due to
Cas
eLa
failure to meet requirements• Resubmittal also failed to meet
requirements, but was approved by engineer and contractor
• Verdict against engineer reversed – found no duty of care existed
aw
Texas
Great American Ins. v. North Austin902 S.W.2d 488 (Ct. App. TX 1995)
• EOR had “performance specification”
Cas
eLa
• Contractor hires specialty subcontractor to install well – submit shop drawings to EOR
• Court held the design responsibility was delegated to contractor in plans
• Shop drawing review not enough to relieve contractor of responsibility
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aw
U.S. Court App. – D.C.
Fabi Construction Co. v. Secretary508 F.3d 1077 (Ct. App. D.C. 2007)
• EOR not the “designer”
Cas
eLa
• Contractor shared in design• Contractor should have known better• Should have asked questions of the EOR
• Consult the local licensing statutes and regulations• Consider contractual relationships and lines of
responsibility• Carefully review specifications for all delegated• Carefully review specifications for all delegated
design elements• Understand the submittal and review process and
level of detail• Have the data that your product meets the spec• Coordinate if it is your responsibility• Verify insurance policies and coverages
QUESTIONS & ANSWERSQUESTIONS & ANSWERSQUESTIONS & ANSWERSQUESTIONS & ANSWERSTo request a certificate of completion visit To request a certificate of completion visit http://delegateddesign.eventbrite.comhttp://delegateddesign.eventbrite.com
If you would like us to report your attendance to AIA, please email your request to If you would like us to report your attendance to AIA, please email your request to [email protected]@hallandcompany.com
Presented byPresented byWilliam S. Thomas, Esq.William S. Thomas, Esq.
Pitzer Snodgrass, PC [email protected]. Louis, Missouri pspclaw.com
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