Perspectives on Critical Design Build Contractual Issues-Perspectives on Critical Design Build Contractual Issues Slides

Perspectives on Critical Design Build Contractual Issues Slides

Pdf Summary

This presentation by William J. Tinsley, Jr. addresses critical contractual issues in design-build projects, focusing on delay claims, liquidated damages, standard of care, performance specifications, and unforeseen conditions.<br /><br />Delay Claims: The presentation outlines how different contracts, including public owner provisions, AIA, and DBIA standard forms, handle delays. Key issues include which delays qualify for schedule or cost adjustments, strict notice and documentation requirements, and who decides on relief. For instance, public owners typically require strict compliance with notice rules and limit extensions to owner-approved delays such as acts or omissions by the owner or uncontrollable events.<br /><br />Liquidated Damages (LD): LD provisions are used when actual damages are hard to quantify, generally tied to Substantial or Final Completion. The presentation discusses whether LDs are reasonable estimates, exclusive remedies, or unlawful penalties. It notes the inclusion of cumulative caps and possible early completion bonuses in DBIA contracts to balance incentives.<br /><br />Standard of Care: Contracts often define the design standard of care, usually the skill employed by reputable professionals under similar conditions. Some contracts impose heightened standards or warranties that may increase liability. It is crucial for design-builders to understand these standards and ensure insurance coverage aligns.<br /><br />Performance Specifications: Unlike design specifications that detail exact methods and materials, performance specifications describe the desired outcome, granting the design-build team discretion in achieving results. Properly drafting performance specs requires clear, verifiable criteria to avoid unintended owner liability. The presentation emphasizes language that supports design flexibility and objective compliance measures.<br /><br />Unforeseen Conditions: Risk allocation for unforeseen site conditions depends on contract terms and available site information. Public owner contracts often place risk on the design-builder, requiring diligence in investigations. DBIA provisions provide owner-provided information with rights to rely on it and address Differing Site Conditions through contract adjustments.<br /><br />Overall, the presentation advises careful contract language selection to manage risks effectively and clarify responsibilities in design-build agreements.

Keywords

Design-Build Contracts

Delay Claims

Liquidated Damages

Standard of Care

Performance Specifications

Unforeseen Conditions

DBIA Contracts

AIA Contracts

Risk Allocation

Contractual Risk Management