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Sat 14 Nov 2009 04:00 AM

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Design responsibility – do as you are told, no more no less!

Philip Adams discusses the need to do only as your contract tells you to do when it comes to design.

In the UK there is a paint manufacturer who promotes its product with the slogan ‘it does exactly what it says on the tin' and I am reminded of this slogan whenever the issue of design responsibility arises, which it does with frustrating regularity.

On projects where design responsibility is shared between engineer and contractor, it is common for the contract to describe the contractors design obligations using terms like ‘design to the extent provided or described or specified in the contract.' Therefore, by implication, the engineer retains responsibility for the design except to the extent provided, or described, or specified in the contract.

This seems reasonably clear so far, but what about the interface between elements designed by the engineer and those designed by the contractor? The contractor is obliged to design exactly what the contract says he is to design, no more and no less, and the engineer designs the rest. Therefore, if the contract does not provide, describe or specify that the contractor is to design a particular interface, then the design of that interface remains the responsibility of the engineer.

However, this position can be complicated when considering those other great sources of disagreement and difference - coordination and integration. From my experience and whether by accident or design (excuse the pun); engineers, contractors and subcontractors consistently become confused by these terms, and whether and to what extent this involves coordinating or integrating the design. Again my advice is, do only what the contract tells you to do.

Where there exists conflicting interpretations and opinions with respect to design obligations, a useful tip is to go back to basics. For example, consider the dictionary definition of the verb ‘coordinate' ie. ‘to set in order, arrange'; and ‘integrate' ie. ‘to unite or combine'. If a contractor then applies these meanings to the contract definition of the term ‘works' and any specified areas of design responsibility, he can begin to gain some clarity with respect to exactly what his contractual design coordination or integration obligations entail.

If a contract does not provide, describe or specify any design responsibility then any reference to ‘coordination' or ‘integration' will be limited to arranging or combining the various entities or trades that make up the works ie. works coordination. Alternatively, if the contract does specify some design responsibility then in addition to his works coordination obligations, a contractor will be responsible to arrange or combine the design of those specified elements.

Contractors should pay particular attention to any words which impose a coordination obligation with respect to contractors shop drawings. For example, a contract that requires the contractor to coordinate his shop drawings with other contractors, may impose some element of design co-ordination responsibility.

Finally, any comments from the engineer on shop drawings submitted for approval should also be treated with caution. In response to the comment and in an effort to progress the works, a contractor may inadvertently prepare what is effectively a design solution and thereby be held responsible for the design, even if the contract imposes no design obligation (NB - this should also be treated as a variation). It should be remembered that Article 880 of the civil code imposes a ten year strict liability for design.

In conclusion, to all you contractors and subcontractors out there, do exactly what it says in the contract. To all you engineers and employers, identify all design interfaces and ensure that the contract clearly allocates responsibility, preferably to the party best able to deal with it.

Adams is a senior consultant at Systech in Dubai. He has provided commercial, contractual and dispute resolution advice on projects ranging from high specification offices, data centres and long distance fibre optic networks to major civil engineering projects, multi-storey offices and hotels. He is a member of the Royal Institution of Chartered Surveyors and a fellow at the Chartered Institute of Arbitration.

The opinions expressed in this column are of the author and not of the publisher.

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