We have all heard the expression death by a thousand cuts. Listen to the just-released AGC ConstructorCast and hear about a design-build construction project that had over 88,000 cuts. These cuts came in the form of owner comments on the contractor’s submittals that typically expressed an owner “preference” that was not necessarily a contractual requirement. Just trying to parse out the nature of the owner’s comments, the design-builder estimated it cost the company 49 person-years! Comments stating a preference were four times more likely than comments indicating something “non-compliant.” Some ENR top 75 firms have left the design-build market amidst this “midlife crisis” of risk.
More broadly, if you have ever wondered about the pros and cons of design-build and how builders are increasingly on the hook for design liability, you will want to listen to this podcast. This Constructorcast explains the Spearin Doctrine, which derives from the most famous U.S. Supreme Court case in construction law. The case established that design plans have an implied warranty to be buildable.
Dirk Haire, co-chair of Fox Rothschild’s Construction Law Practice Group, and David Hecker, group general counsel overseeing all claims, litigation, and investigations for Kiewit Corporation, share their wealth of knowledge on design-build risk on this podcast. Find out when and why contractors do not always bear the risk of design errors or omissions on a design-build project. Co-hosted by AGC’s Vice President & Counsel of Risk Management Leah Pilconis and Brian Perlberg, Executive Director for ConsensusDocs & AGC's Senior for Construction Law, this ConstructorCast podcast episode explains design-builders' liability standard and discusses certain types of overreach by owners that merit pushback from design-builders. One listener commented, “no design-build contractor or engineer should miss this. It is an extraordinarily well-done podcast on design-build risk.”