Assignment of design to constructors: A discussion and direction

Images courtesy Dialog
Images courtesy Dialog

by Keith Robinson, RSW, FCSC, FCSI, Cameron Franchuk, P.Eng., and Gerald Murnane

This article is published in three parts. The first part deals with identification of issues and concerns in communicating the need for design solutions during construction. The second part deals with different approaches to describing how to manage the deferred design process. Both articles draw attention to the “elephant” in the room and issues causing disruption and disagreements in executing this requirement.

The concepts identified are not new. Complexity of design is driving an increase in the quantity of specifications dealing with the deferred design process. The authors recognize experience of design professionals varies greatly and may be contributing to confusion, misconceptions, and inconsistency for those parties involved with providing design solutions identified by the deferred design process.

Recent changes to professional design services and construction procurement have put pressure on expectations for completeness of construction documentation. Downward pressure on professional fees translates directly to a reduction in design effort to fully describe construction, and consequently, a transfer of responsibility for many design solutions to the constructor, essentially delaying or deferring design responsibility to the construction phase of the work.

This deferral of design occurs separately from the production of construction documents, and is typically finalized by an entity other than the Registered Professionals of Record (RPR).

The Canadian Construction Association (CCA) recently identified disturbing trends indicating the professional design community in Canada is failing in its responsibility to provide complete and appropriate design solutions to the constructor, and consequently, is inappropriately transferring to project participants responsibility for design elements rightfully belonging to registered professionals.

The critical outcome of the CCA recommendations is a need for explicit communication to constructors from the RPR clearly and completely describing solutions presented within specifications that do not form a part of a firm’s standard services for engineering and design. Full acknowledgement of deferred design components is the responsibility of the RPR, with full disclosure to owners relating to the transfer of responsibility for certain design solutions to the constructor.

The CCA identified several reasons leading to the increased number of concerns associated with this practice, including a substantial decrease in design budgets, a lack of appropriate time to complete the design, and a reduction of the specialty design knowledge that does not normally form a part of traditional professional design responsibilities.

CCA indicated the subsequent decrease in quality of documents is not directly related to the quantity or effort to create extensive drawings and specifications from design professionals, rather it is a problem of the quality of communication within the whole of the construction documents. The association also indicated the use of computers and processes such as building information modelling (BIM) are implicated in the decrease in quality of documentation as users rely on imported information rather than creating project-specific content.

Part two and three of this article will address in greater detail concepts of delegation of design and design-assist—terms familiar to licensed professionals.

There is an opportunity for the community of design professionals to take leadership on this issue, and to act on necessary improvements to communications with the constructor within documentation by identifying appropriate risk appropriation and managing that risk to the benefit of the project and the owner. Ultimately, this controls exposure to liability arising from the responsibilities of the RPR. The authors believe concepts in this article can establish a standardized national understanding of issues surrounding deferred design, and an approach to reduce exposure to risk for design professionals and the construction community.

Collaborative or deferred design?

Figure 1: This table lists several forms of deferred design and the professionals involved.
Figure 1: This table lists several forms of deferred design and the professionals involved.

Collaborative design requires the involvement of a supporting registered professional or supporting certified/qualified contributor for elements of design:

  • the RPR does not have in-house;
  • required to form a part of the construction documentation; and
  • required to provide a complete solution to the project’s constructor.

Collaborative design can be delivered using design‑assist process before bid through pre‑qualification or after bid as a cash allowance (Figure 1).

Design-assist before bid is typically obtained using a request for proposals (RFP) process in which the building elements and components are clearly defined by non-product specific performance attributes with a stated intent to form a contract with the successful collaborative design-assist partner, and which incorporates a methodology to return to open bidding opportunity if the design solutions process was not beneficial to project outcomes. This process is administered by the design professional and may entail early payment by the owner for design solutions that would otherwise occur during the construction period.

Design-assist after contract award can also be obtained via the RFP process during construction using similar documentation as described for the before-bid process, but administered through a cash allowance to recognize contractual obligation to identify design solutions that are not complete, and that will be determined during the construction period and administered by the constructor.

Deferred design is any design not completed in-house and represents specialist contributions not forming a part of the expertise of the RPR. Deferred design may involve solutions requiring engineering support from a supporting registered professional (delegated design) or non‑engineering solutions from a supporting certified/qualified contributor (assigned design).

Delegated-design solutions require specific input from a professional engineer retained by the constructor, supplier, fabricator, or manufacturer. The difference with assigned-design solutions is, while they also require specific input from a specialist retained by constructor, supplier, fabricator, or manufacturer, they do not require input from a professional engineer. There are components in the deferred design process that may require aspects of delegated and assigned design. These must be identified in the documents.

The deferred design process can include aspects of actionable and informational review of submittals, depending on the allocation of delegated design or assigned design, and which design profession discipline is involved with the aspect of the review. Deferred design may require the application of multiple submittal review stamps where two or more design professionals are involved with the review.

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