Design, designer and designer’s liability in construction procurement routes

In construction projects, the question of who bears the risk and responsibility for the design of the project is often a source of dispute between the project owner, on the one hand, and the architect/engineer or the contractor/subcontractor(s), on the other hand. All parties to a construction project should ensure they have read and understood their design responsibilities pursuant to the terms of their contracts. Most importantly, parties should ensure that the contracts explicitly reflect the intended allocation of design responsibilities and understand all of the consequences of that allocation. Furthermore, contractual parties should also be aware of the situations in which design responsibility, or a standard of fitness for purpose in respect of design responsibility, can be implied into a contract. In a traditional construction contract, design is undertaken by an architect or engineer employed by the employer. The contractor is provided with the design and must build the works in accordance with it. This is an absolute obligation. In design and build contracts a contractor will, in the absence of express words to the contrary, generally be found to have undertaken to provide works that are fit for purpose. One risk is the possibility that the contractor's liability to an employer is greater than the liability that it can pass down to consultants. Any consultant it engages will almost certainly carry out its design function on the less onerous 'reasonable skill and care' basis. In FIDIC forms of contract too there are clauses dealing with the liabilities of the designer. This issue will be kept outside the study. This paper will try to explore the scope of designer’s liability under construction contracts through a review of different procurement routes in use in the construction industry.

Jarosław Górecki