AIA Continuing Education Hall & Company is a Registered Provider - - PDF document

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AIA Continuing Education Hall & Company is a Registered Provider - - PDF document

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AIA Continuing Education Hall & Company is a Registered Provider with the American Institute of Architects Continuing Education Systems. Credit earned based on the completion of this program will be reported to AIA/CES for AIA Members. Please

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AIA Continuing Education

Hall & Company is a Registered Provider with the American Institute of Architects Continuing Education Systems. Credit earned based on the completion of this program will be reported to AIA/CES for AIA Members. Please send your AIA member number to kbernal@hallandcompany.com after the presentation for reporting. This program is registered with the AIA/CES for continuing professional

  • education. As such, it does not include content that may be deemed or

construed to be an approval or endorsement for the AIA of any material of construction or any method or manner of handling ,using, distributing, or dealing in any material or product. Questions related to the specific materials, methods, and services will addressed at the conclusion of this presentation.

Liability Liability for for “Delegated Design” “Delegated Design” -

  • Understanding

Understanding and Avoiding Risks to Design and Avoiding Risks to Design Professionals Professionals

Presented by Presented by

William S. Thomas, Esq. William S. Thomas, Esq.

Pitzer Snodgrass, PC thomas@pspclaw.com

  • St. Louis, Missouri pspclaw.com
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One World Trade Center One World Trade Center – – Freedom Tower Freedom Tower Architect Architect: : Skidmore, Owings & Merrill Skidmore, Owings & Merrill Heydar Aliyev Cultural Heydar Aliyev Cultural Centre Centre -

  • Baku,

Baku, Azerbaijan Azerbaijan Architect Architect: Zaha Hadid : Zaha Hadid Architects Architects

DELEGATION FAILS

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#1 Delegation Fail

  • “Sorcerer’s Apprentice” Mickey

#1 Delegation Fail

  • “Hired” a Subconsultant

#1 Delegation Fail

  • Things get all fouled up
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#1 Delegation Fail

  • Sorcerer has to roll back the stone

DELEGATED DESIGN

Delegated Design

  • A well established practice
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Project Delivery Systems

  • Design-Bid-Build

D i B ild

  • Design-Build
  • Integrated Project Delivery

Delegated Design

  • Design Professional Lead

S i lt D i

  • Specialty Designer

Types of Specifications

  • Proprietary

R f

  • Reference
  • Prescriptive
  • Performance
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Contract Documents

  • Contracts

D i

  • Drawings
  • Specifications
  • Addenda
  • Shop Drawings?

INDUSTRY REACTION TO DELEGATED DESIGN

Shared/Delegated Design in Action IPD d BIM i th i

  • IPD and BIM is on the rise
  • Building product

manufacturers embrace shared design

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Reaction

28% 28%

49% 49%

71% 71%

2007 2009 2012

IndustryR

Levels of BIM Adoption in North America

*The Business Value of BIM in North America SmartMarket Report

CASE STUDY #1

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STATE REGULATORS REACT TO DELEGATED DESIGN

Missouri

20 CSR 2030-21.020

“Engineer of Record and Specialty Engineers”

  • Definitions
  • Communication
  • Performance
  • Responsibility

California

Title 21, Division 1 – 21 CCR § 16

“Designation of Responsibilities”

  • Public School Standards
  • Definitions
  • Delegation Allowed
  • Responsibility
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New York

Title 8, § 29.3

“General Provisions for Design Professions”

  • Definitions
  • Delegation Not

“Unprofessional Conduct”

  • Responsibility

BUILDING CODES REACT TO DELEGATED DESIGN

International Building Code

Section 107.3.4.1

“Examination of Documents – Deferred Submittals”

  • Definitions
  • Review and Approval
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INDUSTRY FORM DOCUMENTS REACT TO DELEGATED DESIGN

AIA Form Document Series

AIA A201-2007, § 3.12.10

“General Conditions”

  • “If professional design services … are

specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy.”

AIA Form Document Series

Section 013300, Article 2.2

“MasterSpec”

  • Contractor is to provide the design

professional lead with a submittal “signed and sealed by the responsible design professional, for each product and system specifically assigned to Contractor to be designed or certified by a design professional.”

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Consensus DOCS 300

Section 12.6 Design Build Work

“Standard Tri-Party Agreement for Integrated Project Delivery”

  • Contractor is to provide the design

professional lead with a submittal “signed and sealed by the responsible design professional, for each product and system specifically assigned to Contractor to be designed or certified by a design professional.”

CASE STUDY #2

Tenant Tenant Lender Lender

Design Design‐Builder Builder

Owner/Developer Owner/Developer

Special Special Inspector Inspector

Steel Fabricator Steel Fabricator Panel Manufacturer Panel Manufacturer Panel Erector Panel Erector Steel Erector Steel Erector

Structural Structural Subconsultant Subconsultant

Design Design Professional Professional Lead Lead

Design Design Consultant Consultant Design Design Consultant Consultant

Subcontracts

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Lessons

  • Clear lines of responsibility in the contract

documents

  • Clarity and specificity of information in the

design documents design documents

  • Coordination and follow-through during

submittals

  • Otherwise, leave it to someone else to

assign that responsibility – usually points to designer

CASE LAW RESPONSE TO DELEGATED DESIGN

Restatement of Torts(3d):

  • Component Parts
  • “Substantial Participation”

R M t i l S li

aw

  • Raw Material Supplier

Defense

  • Sophisticated Purchaser

Rule

CaseLa

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aw

Restatement of Torts(3d):

  • “Substantial Participation”
  • By invitation or playing a

b t ti l l i

CaseLa

substantial role in decision making

aw

Missouri

Duncan v. Mo. Board for Architects

744 S.W.2d 524 (Mo. App. 1988)

  • Contract required EOR to perform “all”

CaseLa

structural engineering services

  • Regulations require professional

responsibility by the EOR

  • Custom and practice overridden by the clear

requirements of the statutes

  • “Statute imposes liability for design whether

designed them or not…non-delegable…”

aw

Missouri

BMA v. Graham

891 S.W.2d 438 (Mo. App. 1994)

  • Marble panels began to fall off building

CaseLa

  • Owner sued architect, in part claiming

negligent approval of shop drawings “without determining if it complied with the Kansas City building code”

  • Alleged failure made part of a claim for

punitive damages

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aw

Oklahoma

Waggoner v. W&W Steel Co.

657 P.2d 147 (Ok. 1982)

  • Hospital project where failure occurred

CaseLa

during construction due to lack of temporary bracing

  • Standard set of AIA documents for the

project – periodic observation and shop drawing approval

  • Court held contractor responsibility

aw

Rhode Island

Lutz En’g. v. Industrial Louvers, Inc.

585 A.2d 631 (RI. 1991)

  • First round of shop drawings rejected due to

CaseLa

failure to meet requirements

  • Resubmittal also failed to meet

requirements, but was approved by engineer and contractor

  • Verdict against engineer reversed – found no

duty of care existed

aw

Texas

Great American Ins. v. North Austin

902 S.W.2d 488 (Ct. App. TX 1995)

  • EOR had “performance specification”

CaseLa

  • Contractor hires specialty subcontractor to

install well – submit shop drawings to EOR

  • Court held the design responsibility was

delegated to contractor in plans

  • Shop drawing review not enough to relieve

contractor of responsibility

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aw

U.S. Court App. – D.C.

Fabi Construction Co. v. Secretary

508 F.3d 1077 (Ct. App. D.C. 2007)

  • EOR not the “designer”

CaseLa

  • Contractor shared in design
  • Contractor should have known better
  • Should have asked questions of the EOR
  • Consult the local licensing statutes and regulations
  • Consider contractual relationships and lines of

responsibility

  • Carefully review specifications for all delegated
  • Carefully review specifications for all delegated

design elements

  • Understand the submittal and review process and

level of detail

  • Have the data that your product meets the spec
  • Coordinate if it is your responsibility
  • Verify insurance policies and coverages

QUESTIONS & ANSWERS QUESTIONS & ANSWERS QUESTIONS & ANSWERS QUESTIONS & ANSWERS

To request a certificate of completion visit To request a certificate of completion visit http://delegateddesign.eventbrite.com http://delegateddesign.eventbrite.com If you would like us to report your attendance to AIA, please email your request to If you would like us to report your attendance to AIA, please email your request to kbernal@hallandcompany.com kbernal@hallandcompany.com

Presented by Presented by

William S. Thomas, Esq. William S. Thomas, Esq.

Pitzer Snodgrass, PC thomas@pspclaw.com

  • St. Louis, Missouri pspclaw.com
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