16.3 Design-Build Liability Generally

Liability under a design-build contract is different from that in a traditional contract setting. As was the case with the master-builder concept, a single entity, the design-builder is responsible for both the design and construction functions and thus warrants the sufficiency of the design. This generally renders the design-builder responsible for design problems that affect the scope of work (which typically involve duties owed to the trade contractors relying on the plans and specifications). They are also responsible for design problems that affect the ability to achieve performance requirements (which typically involve duties owed to the owner of the facility). However, many questions remain unanswered as to whether the extent of the design-builder s liability will move to the strict liability concepts associated with the master builder of yesteryear or whether the industry will adopt standard of care and negligence principles.

The remainder of this chapter will review the legal theories on which design-build liability is founded. As will be noted, the potential liability exposure to members of a design-build team is indeed substantial. However, before reviewing this potential liability, it is important to review the liability exposure that is actually experienced.