Business and Professional Practices
Full Session without Abstracts
David Hatem is an attorney with Donovan Hatem LLP in Boston. David has extensive experience in construction law and defense of claims against design professionals.
Sam Muir is an attorney at Collins Collins Muir + Stewart LLP. Sam has extensive experience in construction law and defense of claims against design professionals.
Paul Kelley is an engineer with Simpson Gumpertz & Heger Inc. in Boston. Paul has experience in forensic engineering, including evaluation of design-build disputes
The presenters will discuss themes of recent disputes between contractors and their designers about the adequacy and completeness of preliminary design information prepared as part of the pursuit of large design-build assignments and
will moderate a discussion of areas for improvement and risk mitigation.
1. Typical Teaming (Pre-Award Design or Pursuit Design) Agreement Issues
a. What is Preliminary Engineering?
b. What standards define expectations of Preliminary Design?
i. Level of completeness
ii. Ratio of pursuit and final design fees
iii. Types of design work deferred to post-award design
iv. Owner review acceptance of proposal design
v. Thoughts on Contingency
c. Who is responsible for quantities – especially for forecasting items not fully developed in Preliminary Design and that increase by design evolution during design development up until final drawings?
d. Who identifies risks and mitigation/monetization of risks?
e. Other relevant terms in the Teaming Agreement
2. What is a Risk Matrix or Reliability Matrix?
a. Common forms
b. Who leads the process?
c. What is designer role?
3. Avoiding preliminary design claims
a. Better teaming agreements
i. Limitations on liability from pre-award work/decisions
ii. No warranty/responsibility for Contractors reliance on pre-award work
iii. Access to contingency to mitigate design evolution risks
b. Robust communications
c. Relevant Defenses