TABLE OF CONTENTS There are a remarkably high number of the disputes in design-build settings that involve issues arising from the formation of the design-build relationship. There appear to be several general reasons for this, including
Difficulty in completely defining scope of work. Unlike traditional design-bid-build projects, the drawings and specifications defining the work for design-build projects are not finalized until well after performance is commenced; thus, parties often discover that their respective understandings of the scope of work were vastly different.
Inexperience. The relative inexperience of owners, contractors, and A/Es in design-build procurement.
Sloppiness. Sloppiness in contract drafting and administration, with parties not taking the contracting process seriously.
Note that these problems occur at both the owner/design-builder contracting phase as well as at the design-builder/subcontractor contracting phase. The cases discussed below illustrate many of the common problems that can arise in this area, underscoring the importance of formally finalizing the contract terms and identifying the various performance standards that apply.
Aparticular case, Marshall Contractors, Inc. v. Brown University, [73] provides an illustration of some of the difficulties in contract formation under design-build. In early 1986, Brown University ( Brown ) requested design and construction proposals from Marshall Contractors ( Marshall ) and three other design-builders for a new university sports facility. Brown selected Marshall s proposal of $4,627,134 and authorized Marshall to proceed with formal design development, sitework, and relocation of utilities. This initial work was done without a formal contract in order to accommodate the...
