Liability of Design-Builders for Design, Construction, and Acquisition Claims (2015) / Chapter Skim
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Pages 22-27
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From page 22... ...
22 otherwise, including but not limited to losses of use, profits, business, reputation or financing. The exclusion referenced in Section 10.4.2 specifically notes that the consequential damages waiver is not intended to affect the payment of liquidated damages, which include some damages that might be considered consequential.
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From page 23... ...
23 It further stated that the level of design development that is included in the RFP is vital in conveying the scope of work and is dependent on the amount of innovation the owner would like to encourage for a given project. Designs that are nearly complete do not give design–builders adequate room to innovate, whereas designs that are not clearly defined make pricing the project difficult and risky.81 The synthesis cited several studies that showed levels of procurement design ranging from 5 percent to 40 percent, with the average level of design prior to design–build contract award being 27 percent.82 Its overall conclusion in looking at different transportation agency approaches to preliminary design development was that "there is not a ‘onesize-fits-all' level of design in DB.
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From page 24... ...
24 the U.S. 181 Harbor Bridge project.90 The Harbor Bridge contract contains provisions restricting the design–builder from making material changes to the "Basic Configuration" without owner approval, but also provides that, if the basic configuration is not constructible, the owner will pay the design– builder's costs for fixing the problem.
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From page 25... ...
25 review before the final design would be "released for construction." This gives the transportation agency an "intermediate point at which to verify that the design development is proceeding in accordance with the contract requirements and to ensure that it is progressing according to the schedule." The synthesis offered an example from a Mississippi Department of Transportation (MDOT) project: The CONTRACTOR will prepare and submit a single preliminary design submittal for the entire project.
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From page 26... ...
26 A much more significant concern, however, relates to the possibility that the owner may direct changes in the design through the design review process, thereby opening the door to delay claims as well as claims for additional costs associated with the design change. This risk can be managed by contractual limitations on the scope of the design review, such as providing that the design review is limited to a check for compliance.
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From page 27... ...
27 this, the synthesis noted that in the past several years, more public owners have decided that it is in their best interests to accept the risk of DSCs on design–build projects, and therefore use DSC clauses in their design–build contracts. This is due, in part, to the fact that design–build contracts are typically awarded before a thorough subsurface investigation is completed and a geotechnical design report is developed, making it difficult to mitigate this risk during procurement.
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