May 17, 2017 Articles

The Contractor’s Emerging Exposure for Design Responsibility

The best course of action to prevent a contractor from being saddled with design responsibilities that could erode its Spearin rights is to be vigilant and proactive up front during the contract negotiation

by Jennifer S. Lowndes

On a design-bid-build construction project, it is the owner who is often stuck between a rock and a hard place when defects emerge during the build. For starters, the owner has the difficult task of proving whether the problem is due to defective design or defective construction. Pursuing a claim against a design professional carries a host of problems for an owner. Not only must an owner pass the higher hurdle of proving professional negligence against architects or engineers, but architect/engineer contracts are tight on limitations of liability. The contractor, on the other hand, is usually protected by what is known as the Spearin doctrine; a century-old policy shielding the contractor from defective construction when the owner-provided plans and specifications are followed without deviation. The result of this liability gap for the owner has been an emphasis on contractual risk shifting to the contractor, especially in the area of design responsibilities where a contractor’s Spearin defense is on more precarious ground.

Over the last handful of years, a large and growing number of disputes have arisen on construction projects litigating responsibility as between the design and construction teams. Shop drawings, attempted design delegation, and scope that includes installation of specialty or engineered systems are just a few ways in which contractors have seen their design-related responsibilities— and the potential for corresponding liability—expand. This article briefly examines the traditional protections for contractors and highlights potential ways in which contractors can expose themselves to design liability.

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