Clash points

In this post-Egan era, single-point responsibility seems to be all the rage. Many of the industry’s problems are laid at the door of fragmentation, both of the construction process and of the supply base, so it is hardly surprising that clients are adopting prime contracting, principal contracting and even good old design and build with such enthusiasm.

You might expect contractors to be delighted at this prospect, and indeed many of them are working very constructively with clients in these new relationships. But there is one aspect of the move towards single-point responsibility that is not so popular. This is the wolf in sheep’s clothing – the design-and-build contract that is, in reality, simply a risk transfer mechanism.

Any contractor can give you numerous examples of tender documents that arrived complete with a design-and-build form of contract and a set of employer’s requirements setting out 60%, or even more, of the design. And these are not, as you might expect, performance specifications and other output-based requirements but genuine detailed design that imposes real constraints on the rest of the works.

This design work is usually accompanied by a demand that the contractor accepts a novation of the original designer’s appointment, and that the contractor takes on full legal responsibility for all the design that has already been carried out.

There are obvious and very significant risks for contractors in this approach, including:

• Inability to check the design properly – short tender periods and the sheer cost of detailed checking will usually preclude a thorough process

• Limited ability to sue the original designer for defects in the original design. This will depend on the designer’s terms of appointment with the employer – which are frequently sketchy, to say the least.

In any case, those rights will only have any real value if the designers either have substantial assets or sufficient insurance; if the contractor has no real choice but to accept the novation, this will be a matter of pot luck.

Novated designers frequently – and perhaps naturally – look to their original client rather than to the contractor in the event of any problems arising. This is not conducive to the creation of teamwork on the supply side.

Perhaps most importantly, this is not design and build, it is detail and build, and as such cannot deliver the level of synergy between designer and contractor that will ensure buildability, good communication and an integrated team.

It is not that contractors are unwilling to take on risk, but that they will only do so readily where they are given the opportunity to manage and control that risk – in this case through the choice of designers, the terms on which they are appointed and the way in which design is integrated with the rest of the construction process.

Single-point responsibility is fine, but surely Ann will agree that it must be based on single-point control.