Design Delegation

In 1996 the New York State Board of Regents approved rules and regulations as to when and how design responsibility may be delegated to or through an unlicensed professional (contractors and subcontractors). Those rules were the culmination of years of discussion and debate with the New York State Education Department. While GBC continues to believe that the delegation of design responsibility is in no one’s long-term best interest (least of all the construction clients and the public at large), the current rules have tended to limit the degree of design being delegated and have served to provide some protections against abuse.

In summary, the rules provide for the following items when seeking to delegate design responsibility:

• Owner and Contractor Notification: While the Education Department has backed off on this to some degree, when viewed in context of the overall rules of professional conduct, owners deserve to be notified when design is to be delegated to other than the designer with whom they have a direct contractual relationship. If nothing else, contractual requirements should, we think, demand this. Clients should want to know and should have the right to know that the designer of some piece of the work is not an incompetent buffoon without the means to obtain professional liability insurance or to even cover the deductible if he did.
  
  In addition, the contractor is to be clearly notified of the intention to delegate design responsibility. That notification is to be placed in the front end of the documents and not simply buried in the detailed specifications.
  
• Ancillary Components: The rule states that design may be delegated only on those pieces of design which are ancillary to the main components of the design. There remains a great deal of debate over the definition of the term "ancillary." For the time being, it has been left to case-by-case determination. In that, it is much like pornography – "We’ll know it when we see it."
  
• All Parameters: When the decision has been made to delegate design, the designer of record must specify all the parameters that must be satisfied in the delegated design. The secondary designer or contract cannot be responsible for determining the parameters that must be followed. The specification "design it to code" would not be permitted. Additionally, the contractor is not responsible for the adequacy of the performance criteria set forth in the contract documents.
  
• Certification: Where design is delegated, the rules demand of the secondary designer hired by the contractor that he certify and sign his design work. This certification need not be a professional seal.

• Approval: Once the secondary designer has submitted his design to the designer of record, that designer of record must review and clearly approve the design. That approval must be in writing along with a document stating that the design conforms to the overall project design and can be incorporated into such design. In large measure, the designer must treat the delegated design much like he would in a rubber-stamping situation and should critique the design.

Professional Liability Insurance: In light of design being delegated through the contractor, owners should strongly consider requiring some form of professional liability insurance from the secondary designer. Article 9.2.3 of the AGC Standard Form of Agreement between Contractor and Subcontractor (#650) provides some good guidance in this regard. It requires project specific professional liability coverage with prior acts coverage and a tail. Click here for more on professional liability insurance (link to come).