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Suggested Citation:"==============." National Academies of Sciences, Engineering, and Medicine. 2015. Liability of Design-Builders for Design, Construction, and Acquisition Claims. Washington, DC: The National Academies Press. doi: 10.17226/22074.
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Legal Research Digest 68 national Cooperative highway researCh program December 2015 liability of design–builders for design, ConstruCtion, and aCquisition Claims This report was prepared under NCHRP Project 20-06, Topic 20-02, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Michael C. Loulakis, Capital Project Strategies, LLC; Nancy C. Smith, Donna L. Brady, and Rick E. Rayl, Nossaman LLP; and Douglas D. Gransberg, Gransberg and Associates. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. the problem and its solution State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specific problems in highway law. This report continues NCHRP’s practice of keeping departments up-to-date on laws that will affect their operations. applications Design–build is generally seen as providing a means to accelerate a project by providing a single point of respon- sibility for design, construction, and related claims. A design–build contracting team typically handles or pre- vents constructions claims based on defective design that arise during and even after construction has been com- pleted. Design–build procedures can also impact the acquisition of right-of-way needed for a project. Research is needed on whether liability for design, construction, or acquisition damages is always trans- ferred 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 condi- tions 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 plan- ning 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, par- ticularly in design–build contracts, including the extent to which a high level of pre-contract design and a high level of discretion regarding design deci- sions 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 stat- utes of limitation and repose. • Addresses the extent to which design–build pro- cedures and deadlines, including design changes, impact the acquisition of right-of-way and con- demnation proceedings. It should be helpful for administrators, contracting officials, attorneys, planners, engineers, agency financial officials, and staff involved in the construction process. responsible senior program officer: gwen Chisholm smith These digests are issued in order to increase awareness of research results emanating from projects in the Cooperative Research Programs (CRP). Persons wanting to pursue the project subject matter in greater depth should contact the CRP Staff, Transportation Research Board of the National Academies of Sciences, Engineering, and Medicine, 500 Fifth Street, NW, Washington, DC 20001. Transportation Research Board 500 Fifth Street, NW Washington, DC 20001 Subscriber Categories: Construction • Design • Law n C h r p lr d 68 tr b NON-PROFIT ORG. U.S. POSTAGE PAID COLUMBIA, MD PERMIT NO. 88

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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest 68: Liability of Design-Builders for Design, Construction, and Acquisition Claims discusses case law relevant to design liability, provides examples of contract language relevant to design liability, provides information about state laws relevant to liability and indemnity for design-build projects, and addresses the extent to which design-build procedures and deadlines impact the acquisition of right-of-way and condemnation proceedings.

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