db contract documents lane beougher state architect jerry kasai chief legal counsel, osfc

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DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

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Page 1: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

DB Contract Documents

Lane BeougherState Architect

Jerry KasaiChief Legal Counsel, OSFC

Page 2: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Contracts Outline

• Basic Design-Build Concepts• Benefits of Design-Build?• State of Ohio contract v. industry

contracts?• The Public Authority’s team,

including the Criteria A/E, and their roles?

• The Design-Builder’s team and their roles?

Page 3: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

The Design-Builder

• Single entity that integrates the design and construction of a construction project

• “Integration” of design and construction is key to success

Page 4: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• ORC 4703.182– (C)(2) “Design-build” means a project

delivery system for improvements to real property by which a person is solely responsible contractually as a contractor to an owner for both the design and construction of the improvement, which design and construction may include a performance-based specification established by the owner rather than a specific design as an improvement goal. (11-24-1985)

Page 5: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• ORC 4703.182– (A) Notwithstanding any other provision

of this chapter, any person who performs labor or who provides services pursuant to a construction contract may offer or provide architectural services in connection with the person’s own labor or services if all of the following apply:

Page 6: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• ORC 4703.182– (1) The architectural services are

provided and performed by an architect registered under this chapter or by a firm holding a certificate of authorization granted pursuant to this chapter through either direct employment or independent contract with the person contracting with the owner and offering the services.

Page 7: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• ORC 4703.182– (2) The architectural services are offered

by the person who intends to perform the actual construction of an improvement to real property as part of a design-build contract.

Page 8: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• ORC 4703.182– (3) The contractor, the architect

registered under this chapter, or the firm holding a certificate of authorization granted pursuant to this chapter meets the requirements of section 153.70 of the Revised Code when design-build services are provided to a public authority as defined in section 153.65 of the Revised Code.

Page 9: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• OAC 4703-3-12– (A) An architect may provide design

services in a design-build contractual relationship provided the architect:

– (1) Is an architect licensed to practice in the State of Ohio or represents an architectural firm authorized to provide architectural services in the State of Ohio, and

Page 10: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• OAC 4703-3-12– (2) Assures a written disclosure has

been given to the client by the entity identifying the architect or architectural firm engaged by and contractually responsible to, the entity offering design-build project services, and

Page 11: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• OAC 4703-3-12– (3) Assures the entity agrees that the

architect will have direct supervision of the architectural work and that the architect’s services will not be terminated on the project, without the immediate replacement by another architect.

Page 12: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Law

• OAC 4703-3-12– (B) A design-build entity shall not offer to

provide or provide architectural services, unless the design-build entity is, or independently contracts with, an architect practicing as a sole proprietorship, an architectural firm holding a certificate of authorization to provide architectural services as set forth in Chapter 4703.18 of the Revised Code or employs one or more architects authorized to provide architectural services.

Page 13: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Basic Design-Build Concepts

• Pros– Single point of responsibility for owner– Faster completion than Design-Bid-Build– Good cost control– Early negotiation of guaranteed

maximum price– Good process for complex projects– Owner sees design concepts from

multiple teams

Page 14: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Basic Design-Build Concepts

• Cons– Less owner influence during design– Costly for unsuccessful Design-Build

teams– Less owner control after Design-Build

team selected

Page 15: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Benefits of Design-Build

Metric DB vs. D-B-B CMR vs. D-B-B DB vs. CMR

Unit Cost ($/SF) 6.1% lower 1.6% lower 4.5% lower

Construction Speed

12% faster 5.8% faster 7% faster

Delivery Speed 33.5% faster 13.3% faster 23.5% faster

Cost Growth 5.2% less 7.8% more 12.6% less

Schedule Growth

11.4% less 9.2% less 2.2% less

“Comparison of U.S. Project Delivery Systems,” Mark Konchar & Victor Sanvido, Journal of ConstructionEngineering and Management, Vol. 124, No. 6 (1998), pp. 435-444.

Comparison of U.S. Project Delivery Systems(Construction Industry Institute / Penn State University Study)

Page 16: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Benefits of Design-Build

How does Design-Build reduce cost?

• Design decisions are guided by the entity guaranteeing the price:– At preliminary stage, the builder is part

of the design process.– Price is now guaranteed by both

designer and builder.

Page 17: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Benefits of Design-Build

How does Design-Build reduce cost?

• Design decisions (cont’d)

– Builder has control over design to manage price.

– Designer has direct cost feedback, rather than simply depending on estimates.

Page 18: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Benefits of Design-Build

How does Design-Build shorten schedule?

• Design and construction happen concurrently:– No longer is design completed prior to

any construction activity, such as mobilization.

– Long lead items may be ordered in advance, while design integration takes place.

Page 19: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Benefits of Design-Build

How does Design-Build shorten schedule?

• Design and construction (cont’d)– Field decisions and coordination time is

reduced because of mutual incentives.– Project close-out activities are

concurrent rather than sequential.

Page 20: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Benefits of Design-Build

How does Design-Build improve quality?

• Risk and liability structure of the delivery contract is completely realigned:– No longer do you have two contracts,

there is only one contract with the Design-Builder.

Page 21: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Benefits of Design-Build

• Risk and liability structure (cont’d)– The Design-Builder is liable for design

negligence.– The Design-Builder is liable for means

and methods and construction negligence.

– The Design-Builder is responsible for operation and maintenance performance, warranties, and as-built documentation.

Page 22: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Differences in Construction Reform

Design-Build & Private Industry• Process

–Pre-qualifications

Page 23: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Differences in Construction Reform

Design-Build & Private Industry• Process

–Best Value

Page 24: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Differences in Construction Reform

Design-Build & Private Industry• Process

–Guaranteed Maximum Price

Page 25: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Differences in Construction Reform

Design-Build & Private Industry• Process

–Criteria Architect

Criteria Architect

Page 26: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

State of Ohio Design-Build Contract

• Agreement Form• Performance Bond Form• Payment Bond Form• GMP Amendment

Page 27: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

State of Ohio Design-Build Contract

• Contracting Definitions• General Conditions• Supplementary Conditions• State of Ohio Subcontract Form

Page 28: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

State of Ohio Design-Build Contract

• Based on CMR Contract except:–Design services scope for A/E of

Record (AOR)–DB secures plan approval and

storm water permit (documents sealed by AOR)

Page 29: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

State of Ohio Design-Build Contract

• Based on CMR Contract except (cont’d)–Design services fee (separate from

preconstruction services fee)–Professional design liability

insurance required for A/E of Record

–Limited role of Criteria A/E during construction

Page 30: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Other Design-Build Contracts

• AIA Contract Documents (A141)–American Institute of Architects

• ConsensusDOCS (410)–ConsensusDOCS, LLC

(Primary Sponsor: AGC)

Page 31: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Other Design-Build Contracts

• DBIA Contract Documents (530 + 535)–Design-Build Institute of America

• EJCDC Contract Documents (D525 + D700)–Engineers Joint Contract

Documents Committee

Page 32: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Role of the Criteria A/E

• Public Authority’s Project Team– Project Manager (Contracting Authority)– Owner’s Representative (Owner)– Criteria Architect/Engineer (Criteria A/E)

• Retained by the Public Authority per ORC 153.65 through 153.70 (QBS) or is an employee thereof

Page 33: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Role of the Criteria A/E

• Preconstruction Services (Article 5)– Verify or Develop Program of

Requirements– Validate Project Scope, Budget, and

Schedule– Develop Project Definition and Criteria– Assist development of Request for

Qualifications– Ensure design is compliant with the

design criteria and owner requirements

Page 34: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Role of the Criteria A/E

• Construction and Closeout (Article 6)– Ensure construction is compliant with

the design criteria and owner requirements

– Certify payment requests are commensurate with extent of completed Work

– Manage quality testing and special inspections

– Provide analysis of claims– Assist the owner review the Design-

Builder’s punch list and perform final inspection

Page 35: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Construction Administration Roles

Section Topic CMR Contract*

DB Contract*

5.8.1 Secure Plan Approval A/E DB (AOR seals plans)

5.8.4 Secure Storm Water Permit

A/E DB (AOR seals plans)

6.9 Special Inspection (Ch. 17)

A/E (Cont. Auth.)

Cont. Auth. (Crit. A/E)

6.9 Structural Testing A/E (CMR) DB (Crit. A/E)

6.10.2 Request for Interpretations

A/E Cont. Auth. (Crit. A/E)

6.21 Review Action Submittals

A/E Cont. Auth. (Crit. A/E)

6.23 Direct Uncovering the Work

A/E Cont. Auth. (Crit. A/E)

6.27.2 Conduct Punchlist Review

A/E Cont. Auth. (Crit. A/E)

“Primary responsibility listed first with secondary responsibility listed in parentheses (if requested)

Page 36: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Construction Administration Roles

“Primary responsibility listed first with secondary responsibility listed in parentheses (if requested)

Section Topic CMR Contract*

DB Contract*

6.30 Certify Contract Completion

A/E Cont. Auth. (Crit. A/E)

7.2 Prepare Change Orders A/E Cont. Auth. (Crit. A/E)

7.3.1 Prepare Proposal Requests

A/E Cont. Auth. (Crit. A/E)

7.4 Prepare Change Directives

A/E (Cont. Auth.)

Cont. Auth. (Crit. A/E)

7.5 Direct Minor Changes A/E Cont. Auth. (Crit. A/E)

7.6 Review Differing Conditions

A/E Crit. A/E

8.8 Provide Analysis of Claims

A/E Crit. A/E

9.2.9.2 Certify Payment Requests

A/E Cont. Auth. (Crit. A/E)

Page 37: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

The Design-Build Team

• Determining Team Members• Establishing Ground Rules• Intangibles

– Establishing trust– Getting the right people on the bus

Page 38: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

The Design-Build Team

• Goal– Communication– Collaboration– Integration

Page 39: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Team Structure

• Integrated firm– A firm with design and construction capability

• Joint venture– A/E and contractor form a legal partnership

• Contractor led team– Contractor engages A/E as design consultant

• Designer led team– A/E engages contractor to perform Work

Page 40: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Integrated FirmOWNER

DESIGN /BUILDERin-house design +construction staff

PROJECT MANAGER(in-house or subcontracted)

CONSULTING ENGINEERS

Various

SUPPLIERSSUBCONTRACTORS

Page 41: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Joint VentureOWNER

ARCHITECT/ENGINEER

CONSULTING ENGINEERS Various

SUPPLIERSSUBCONTRACTORS

JOINT VENTURE (A/E + Contractor)

CONTRACTOR

Page 42: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Contractor LedOWNER

DESIGN /BUILDER(Contractor)

ARCHITECT

CONSULTING ENGINEERS Various

SUBCONTRACTORS Various

Page 43: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Architect/Engineer LedOWNER

DESIGN /BUILDER (Architect/Engineer)

CONTRACTORCONSULTING ENGINEERS Various

SUBCONTRACTORS Various

SUPPLIERS Various

Page 44: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

Design-Build Team Structure

1. Contractor Led: 49%2. Integrated Firm: 24%3. Designer Led: 24%4. Joint Ventures: 3%

2005 Study by the Design-Build Institute of America (DBIA)

Page 45: DB Contract Documents Lane Beougher State Architect Jerry Kasai Chief Legal Counsel, OSFC

DB Contract Documents

Questions:

Lane J. BeougherState Architect

[email protected]

Jerry KasaiChief Legal Counsel

[email protected]