i-law

International Construction Law Review

DESIGN LIABILITY: PROBLEMS WITH DEFINING EXTENT AND LEVEL

Professor Sarah Lupton1

MA, DipArch, LLM, RIBA, FCIArb, CArb
In modern procurement there are many contributors to the design process, and it is important that the related contracts delineate their roles precisely. Clear allocation of decision-making depends on the specification and other documents tying in with the contractual provisions, and on subsequent behaviour reflecting what was anticipated in the package. All too often, perhaps because of shortage of time, insufficient care is given to finalising these key documents.
This article2 explores cases where the extent or level has not been clearly set out, sometimes with unexpected results. The projects covered are of varied scale, but all involve some allocation of design responsibility to the contractor and provide useful lessons for those involved in drafting tender packages.

EXTENT OF LIABILITY

The following three cases all concern contracts based on a JCT standard form contract intended for “traditional” procurement (i.e. where the majority of the construction information is provided by the client’s consultant team) but which also allows for a certain amount of contractor or sub-contractor design input.3 The device used to incorporate this input is the “Contractor’s Designed Portion” (CDP),4 the provisions of which effectively reproduce the relevant provisions of a JCT design-build contract within the overall traditional framework. For example, in the JCT Standard Building Contract 2011, the design element is brought in through recitals


Pt 2] Design Liability: Problems with Defining Extent and Level

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