Design-build is generally seen as providing a means to accelerate a project by providing a single point of responsibility for design, construction and related claims. A design-build contracting team typically handles and/or prevents constructions claims based on defective design that arise during and even after construction has been completed.  Design-build procedures can also impact the acquisition of right of way needed for a project

Research is needed about whether liability for design, construction or acquisition damages is always transferred to the design-builder.  Transfer of liability depends on relevant statutes and case law, and is also affected by the level of design performed by the agency prior to award of a design-build contract, the terms and conditions of the contract, and the actions of the parties during the course of design and construction.  Information on the underlying legal rules affecting transfer of liability will be a useful tool for transportation agencies that are planning design-build procurements, drafting procurement and contract documents, administering contracts and litigating tort, construction and acquisition claims.

            This digest:

·        Discusses case law relevant to design liability, particularly in design-build contracts, including the extent to which a high level of pre-contract design and a high level of discretion regarding design decisions or project acceptance may affect an agency’s ability to transfer design liability;

·        Provides examples of contract language relevant to design liability (including performance standards, indemnification provisions, insurance requirements, warranties, disclaimers regarding design furnished by the project owner and language making it clear that approval of the design by the owner does not affect the design-builder’s liability);

·        Provides information about state laws relevant to liability and indemnity for design-build projects, including laws regarding design immunity and statutes of limitation and repose; and

·        Addresses the extent to which design-build procedures and deadlines, including design changes, impact the acquisition of right of way and condemnation proceedings.

     It should be helpful for administrators, contracting officials, attorneys, planners, engineers, Agency financial officials and staff involved in the construction process.

STATUS: This Report has been published as Legal Research Digest 68.