Contractor responsibility for employer's design

STUART JORDAN discusses the issue of design responsibility in construction contracts, particularly in design-build and EPC ones, emphasising that contractors should thoroughly review employerprovided designs to ensure they are adequate for construction.

IN CONSTRUCTION main contracts requiring contractor design, the contractor is usually required to be responsible for all of the design of the built asset. In rare cases, we see the project owner retain design responsibility and seek just specialist design work from the main contractor.

This is rare because, if the contractor’s design input is specialist only, they are more likely to participate as a subcontractor or specialist works package contractor, and would not be responsible for construction of the whole works.

In the usual situation, a design-build or an engineering, procurement and construction (EPC) contract is going to require the contractor to be solely responsible for the whole of the design. The main reason for this is obvious: to avoid an interface in that responsibility, with potential for a dispute as to who is liable for design defects or omissions identified later on.

Still things can go wrong, as they did for the parties in a case that recently came to the Technology and Construction Court in England. Here, Workman Properties Ltd (Workman) engaged Adi Building and Refurbishment Ltd (Adi) to carry out extension works at Workman’s dairy. They used a JCT Design and Build Contract 2016, a popular standard published form.