TABLE OF CONTENTS One of the most important factors leading an owner to choose design-build is the merger of design and construction functions into a single point of responsibility. This feature not only eliminates the conflicts that can result from separation of the design and construction functions but also enables the owner to obtain warranties that the facility will meet certain specific performance requirements. In fact, in some construction sectors, such as power generation, this feature virtually mandates the use of design-build in order to obtain financing of the project. [18]
Despite the importance of the single point of responsibility in the design-build contract, there are only a few cases which address this topic. These cases suggest that, to date, the courts are not reluctant to find the design-builder, and its team members, liable for failing to meet the higher duties that the single point responsibility entails, including the satisfaction of performance requirements. The legal theories that are used to justify these findings are broadly based, with courts having evaluated the single point of responsibility under theories related to breach of contract, the Uniform Commercial Code (UCC), and strict liability. There has also been little room for design-builders to use defenses such as impossibility of performance or owner interference. A discussion of these issues follows.
Breach of express contract duties is the most common legal theory used by owners who have claims against design-builders. This is a relatively easy theory to use...
