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

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 for Liability 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 1

One World Trade Center One World Trade Center – – Freedom Tower Freedom Tower Architect Architect: : Skidmore, Owings & Merrill Skidmore, Owings & Merrill Heydar Aliyev Cultural Centre Heydar Aliyev Cultural Centre - - Baku, Baku, Azerbaijan Azerbaijan Architect Architect: Zaha Hadid : Zaha Hadid Architects Architects DELEGATION FAILS 2

#1 Delegation Fail • “Sorcerer’s Apprentice” Mickey #1 Delegation Fail • “Hired” a Subconsultant #1 Delegation Fail • Things get all fouled up 3

#1 Delegation Fail • Sorcerer has to roll back the stone DELEGATED DESIGN Delegated Design •A well established practice 4

Project Delivery Systems •Design-Bid-Build •Design-Build D i B ild •Integrated Project Delivery Delegated Design •Design Professional Lead •Specialty Designer S i lt D i Types of Specifications •Proprietary •Reference R f •Prescriptive •Performance 5

Contract Documents •Contracts •Drawings D i •Specifications •Addenda •Shop Drawings? INDUSTRY REACTION TO DELEGATED DESIGN Shared/Delegated Design in Action •IPD and BIM is on the rise IPD d BIM i th i •Building product manufacturers embrace shared design 6

2007 2009 2012 Reaction 71% 71% 49% 49% 28% 28% IndustryR Levels of BIM Adoption in North America *The Business Value of BIM in North America SmartMarket Report CASE STUDY #1 7

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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 11

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 12

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.” 13

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 Owner/Developer Owner/Developer Design Design ‐ Builder Builder Special Special Inspector Inspector Subcontracts Design Design Steel Erector Steel Erector Professional Professional Design Design Steel Fabricator Steel Fabricator Lead Lead Consultant Consultant Panel Erector Panel Erector Structural Structural Subconsultant Subconsultant Design Design Panel Manufacturer Panel Manufacturer Consultant Consultant 14

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” aw CaseLa • Raw Material Supplier R M t i l S li Defense • Sophisticated Purchaser Rule 15

Restatement of Torts(3d): • “Substantial Participation” • By invitation or playing a aw CaseLa substantial role in b t ti l l i decision making Missouri Duncan v. Mo. Board for Architects 744 S.W.2d 524 (Mo. App. 1988) aw • 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…” Missouri BMA v. Graham 891 S.W.2d 438 (Mo. App. 1994) aw • 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 16

Oklahoma Waggoner v. W&W Steel Co. 657 P.2d 147 (Ok. 1982) aw • 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 Rhode Island Lutz En’g. v. Industrial Louvers, Inc. 585 A.2d 631 (RI. 1991) aw • 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 Texas Great American Ins. v. North Austin 902 S.W.2d 488 (Ct. App. TX 1995) aw • 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 17

U.S. Court App. – D.C. Fabi Construction Co. v. Secretary 508 F.3d 1077 (Ct. App. D.C. 2007) aw • 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 18

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