Design-Build Risks for Architects

When an architect is a sub to a contractor leading a Design-Build team, the architect’s primary allegiance is typically to the contractor and not to the owner. The Design-Build contractor is likely to control the architect’s scope of services and payment and to decide when and which information and decisions will be shared with the architect. The architect may be left out of the communication loop when it comes to submittals, substitutions, or other design changes; the architect may not have an opportunity to express concerns related to performance of proposed substitutions and other changes. Working directly for the contractor also means the architect may be directly responsible for tailoring services to the contractor’s schedule interests and may be directly liable to the contractor for delays the contractor attributes to the architect’s services, regardless of professional intent. The owner, having no direct contract with the architect, may be receptive to contractor complaints that the architect failed to perform, but may, as with other subcontractor complaints, advise the contractor to settle its complaint with the architect. If the owner has withheld payment from the contractor related to such a claim, the architect may be presumed by the owner and contractor to be liable for the contractor’s loss.

Although standard Owner-Architect agreements for Design-Bid-Build projects hold that the architect will be an unbiased interpreter of contract documents and of the performance of the owner and the contractor, it is often the owner that finds itself in the position of referee in arguments between the contractor and the architect. Similar to a judge or jury with limited knowledge of construction, the referee owner may have very limited knowledge of the specific matter in dispute, its technicalities and its relationship with overall project performance goals. Without direct contractual access to the owner on a Design-Build project, the architect may not find an unbiased ear when it comes to dispute resolution. The owner on the Design-Build project may see the contractor as the authority on matters related to design.