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There has been considerable experimentation with forms of procurement, with the objective of making the design and construction processes much more interactive. This has been due to the development of subcontracting, its increasing specialization and the need to provide a mechanism for designers to access the information. The development of various forms of contract and the implied relationships are shown in Figure 12. The most common form of contract is still the lump sum typified in the UK by the standard form of contract produced by the Joint Contracts Tribunal (1998) with quantities, but even this has gone through many transformations to enable specialist design information to be provided. In its basic form the design team does not have any direct link with the specialists and all communication is via the main contractor who, in many cases, will not Fig. 11. The network of project managers.

Fig. 12. The relationship between designer, specialist and contractor developed within common procurement arrangements.

accept design liability. This can result in a grey area of responsibility and liability as information is passed from one to the other.

As projects became more complex and knowledge more specialized, management contracting was developed, among other things, to give the designer access to the specialized information sources. This was done by the contractor becoming a member of the design team at an early stage to advise on management and production issues and, at the same time, provide an early purchasing system for specialist contractors. However, much of the enthusiasm for the principles of co-operation has been diluted as the management contractors have been made to accept many of the liabilities and responsibilities typical of lump-sum contracts and the division between design and construction has been reinforced.

A recent development has been the emergence of construction management by clients frustrated with the difficulties of obtaining an efficient output from the industry. By employing all contributors directly and providing the co-ordinating management, a cohesive design and construction organization is created, with the client assuming the total risk. One feature of this approach is the raising of the specialist contractor to a major position in recognition of the total knowledge of design and production within their specialization. American and European practice is often cited for this development, but it is a logical outcome of the developments in the UK. The major difference is that UK designers still retain considerable control over the final details and so the complexity of information interchange still exists, but within an integrated management-controlled regime.

Control of the design process would also be provided in the design-and-manage approach. In this the contractor takes the risk and employs all parties, but still with the same objective of managing the design process to achieve an efficient construction process.

There are many other forms of procurement, most of which are variations on these basic themes. All have arisen because of deficiencies in the traditional lump sum contractual system (Rougvie, 1981). The single biggest barrier to efficient construction has been the division between the designer and the contractor and the difficult problem of providing access to specialist knowledge without abrogating responsibility and breaching liability.

Whichever form of procurement or contract is chosen, the parties should recognize the problem inherent in the implicit organizational structure and encourage sensible practice in accordance with the recommended practice in this book.

4.6 Liability

If the involvement in design changes so much from stage to stage, design liability cannot be easily attributed to an individual contributor. This is not a new problem. Every case of alleged negligence involves an enormous amount of auditing to attempt to apportion blame.

The roles that have been described represent the true picture of the management of modern medium and large-scale building projects. However, the extent of liability is not necessarily dependent upon who does what, but on who accepts liability. In other words, the documents used for appointing the various contributors are important in identifying the fundamental responsibilities for defects.

A client must decide whether strict liability is required so that the building achieves

‘fitness for purpose’, or that only ‘skill and care’ is to be exercised by the participants. The former is often more expensive, and is certainly more difficult to enforce as most, if not all, professional indemnity (PI) insurance policies will not cover ‘fitness for purpose’. The client who wishes to pursue this course must make the appointments on a suitable basis.

Alternatively, all parties in the project should undertake their duties with ‘reasonable skill and care’. This is normally covered by their PI policies and therefore is enforceable. Each consultant and specialist must undertake to ensure that they perform their services adequately and sign a contract to carry out the work for which they have been appointed.

To clarify the position, there are two types of liability:

䊉 professional liability, imposing an obligation on a consultant to act with ‘skill and care’, and;

䊉 absolute liability, requiring ‘fitness for purpose’. This may be attached to an agreement to provide a finished building.

The way in which the contract defines the work to be done will dictate the type of liability.

Tort actions are taken in common law and need no contract. The scope of this kind of recourse is restricted to physical injury and damage to other property only, and ‘pure economic loss’ is specifically excluded. As a result it is necessary to rely on contractual remedies, which is why collateral warranties have become so popular. They form a contract that defines the liability placed on the professional consultants and other designers such as specialist contractors. However, professional indemnity insurance policies usually exclude product liability, so consultants must be aware of what they sign.

Clients must also understand the relationship between collateral warranties and PI insurance. A final word of warning is that each professional consultant must ensure that he or she is not the only one with a collateral warranty. The danger is that the consultant with whom there is effective recourse may end up with the whole of the liability.

The effect of the various liabilities and the difficulty of resolving problems through the courts has been that each designer takes extreme care to ensure that the information that is approved for construction is correct. Consequently more time is taken in checking and cross-referencing between the designer and, for example, the specialist contractor.

Problems of co-ordination may appear where designers are extremely reluctant to sanction approval of each other’s work and make commitments at the interface. On fast track projects, this raises considerable difficulties, as it may not be possible to speed up the design process unless sufficient time has been allowed to ensure that the design is correct.

4.7 Summary

The design process can be subdivided into many elements and stages. However, there are crucial points of decision where the design together with the cost and time budgets must be approved before the project can continue. It is the task of managers to identify these stages clearly and to achieve the following.

䊉 Decide what is to be completed at the end of each stage.

䊉 Ensure that the contributors agree to this.

䊉 Ensure that the design team understands the change in relationships at the beginning of each stage in order to focus on the goals at the end of that stage.

䊉 Ensure that the formal agreements with each of the design practices contributing to the design clearly specify the stages, tasks and changing managerial responsibilities.

䊉 Ensure that designers, in attempting to limit design liability, do not confuse their co-ordination and management responsibility with liability for the content of their design and so limit their co-operation.