| TERMINOLOGY |
| Construction specifications should be drafted to use defined terms and terminology that is consistent with their associated contract(s). This will increase the potential for more consistent interpretations of contractual requirements, as intended by the documents’ drafter.
When design-build construction specifications are developed from the traditional design-bid-build (DBB) specifications, commonly used defined terms in the source specifications may need modification. For example, “Contractor” will likely need to be changed to “Design-builder” or “Subcontractor.” The role of the design professional in design-build is different from traditional DBB, design-negotiate-build (DNB), construction manager as advisor (CMa), or construction manager-at-risk (CMAR), and responsibilities allocated to the design professional in DBB specifications may need to be modified for design-build. In DBB, the owner-hired design professional is the owner’s representative and ‘watchdog,’ visiting the site and reviewing shop drawings to help ensure compliance with the contract. In contrast, in design-build, the design professional works for the design-builder and is responsible only to its client and the obligations of its professional license. In design-build, the design professional neither represents the owner nor serves as the owner’s onsite watchdog. In design-build, the design-builder’s project design professional(s) are responsible for the design, but not for observing the construction and ensuring it is in accordance with the owner’s project criteria. Therefore, in preparing design-build construction specifications from DBB source documents, each instance of the terms “Engineer,” “Architect,” or “Consultant” (as applicable) needs to be carefully considered and possibly revised, depending on the project and how the design-builder will implement the construction plan. This is not to suggest the design professional abdicates its responsibility for the design once construction starts. In some standard design-build prime contracts, the owner has an explicit right to rely on the design-builder’s project design professional(s) complying with the obligations of their professional license. Finding the appropriate balance between allowing the design-builder and its construction subcontractors appropriate leeway in implementing the construction, while complying with the letter and intent of professional licensure obligations, can be challenging in design-build, where such responsibilities tend to become blurred compared with those in DBB, DNB, CMa, and CMAR. Other defined terms or terminology common in DBB source specifications may also need modification. For example, many standard contract documents and specifications for DBB, DNB, CMa, and CMAR include the defined term “Work,” referring to the physical construction and related services to be performed by the contractor. However, in design-build, the term “Work” is often defined as including both the construction and project design professional services. The extent to which the design-builder warrants to the owner “the Work,” as opposed to “the Construction” (a term defined in the Engineers Joint Contract Documents Committee [EJCDC] D-700–2016, “Standard General Conditions of the Contract between Owner and Design-Builder.”) is relevant to this matter. Even the commonly used term “Work” needs to be carefully evaluated in the source documents used for design-build construction specifications. Similar cautions may also apply to other defined terms. |
