3 Tips for Dealing with Design Issues

Traditionally, a contractor’s role is to build — that is, to implement a design created by an architect or other design professional. But given the vagaries of the industry, it’s not unusual for plans and specifications to be incomplete when construction begins. Contractors asked to help fill in these design gaps should proceed with caution. Here are three tips to consider:

  1. Understand the difference between design and performance specifications. Owners may furnish a contractor with design specifications, performance specifications or a combination of the two. Generally, design specifications detail the materials and products the contractor must use, as well as the manner in which he or she must perform the work. Performance specifications, on the other hand, spell out a performance result to be attained and leave it up to the contractor to determine how to achieve it.

The difference between design and performance specifications is critical. Generally, a contractor won’t be held responsible for defects in design specifications furnished by the owner. But when a contractor agrees to meet performance specifications, he or she may be held liable if the component or system fails to perform as promised. Sometimes a specification contains elements of both, and classifying it as “design” or “performance” depends on the contractor’s level of discretion in implementing the specification.

  1. Distinguish between design and implementation. Contractors are generally well suited to advise an owner on how to implement design or performance specifications. But it’s important to avoid crossing the line into pure design territory by creating those specifications. Most contractors lack the design expertise to do so and usually aren’t insured for it. (Note: Different rules apply to design-build projects.)
  2. Clarify your role. If you’re asked to get involved in design issues on a project, communicate clearly to the owner and other parties that you’re not a building designer and would prefer not to specifically address any design gaps. This doesn’t mean you still can’t share your experiences working on similar projects and dealing with pertinent building components. Just be sure to keep everyone’s roles and responsibilities clear.

Ideally, the contract documents should provide that the owner and/or design professional — and not, you, the contractor — is responsible for all design decisions. Watch out for contract provisions that attempt to shift liability for design defects to you. For example, a contract might require the contractor to notify the owner of any design defects it identifies, or reasonably should have identified, in the plans or specifications.

If you’re feeling uncertain about your role, responsibilities and potential liability with respect to design issues and contract provisions, consult your professional advisors.

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