TABLE OF CONTENTS Many critics of design-build state that the absence of checks and balances is the primary drawback of the system, claiming that the owner is at the mercy of the design-builder. This argument ignores the fact that because of the single point of responsibility liability, a design-builder is incentivized to ensure that it provides a high-quality product to the owner. It also fails to recognize that many owners will use either in-house or external professional assistance in administering the design-build contract and monitoring the design-builder s performance.
Notwithstanding that there are, in fact, appropriate checks and balances in the design-build contract, the successful design-build project is characterized by a high degree of trust and partnering between the owner and the design-builder, as well as among the members of the design-build team. This requires the design-builder to treat the owner openly and fairly, and to act in the best interests of the owner. Several courts, confronted with situations where the design-builder failed to do so, did not hesitate to find the design-builder liable for breaching this duty.
One of the most interesting cases dealing with this issue is Combustion Engineering, Inc. v. Miller Hydro Group. [80] In this case, the court found that the design-builder had breached its contract with the owner by designing and constructing a hydroelectric facility capable of producing more electricity than the contract specified. The contract enabled the design-builder to earn a sliding-scale bonus for efficiency to the extent that the facility produced power...
