News Alert: Forum Members Complete Construction Litigation Mock Arbitration

In September 2023, members of the Forum on Construction Law completed a comprehensive mock arbitration event hosted by FTI Consulting at its office in New York City. Attorneys from three law firms and several consultants participated in the event which was designed to give developing construction attorneys and experts an authentic arbitration experience before a three-member arbitration panel.

The mock disputes included three parties: an owner, an architect, and a contractor. Approximately six months before the trial, an information pack was provided to the participants detailing the facts of the dispute, including items contributing to project delays and increased design and construction costs. The issues described in the event’s information pack detailed many items central to construction disputes, including differing site conditions, concurrent delays, work stoppages, design changes, remedial construction costs, and time-related damages.

Each of the parties was assigned a one or two attorney legal team and two construction experts to focus on the delay and damage components of the dispute. Each expert issued a written expert opinion and then provided a response to the opposing expert opinions. In total, the experts issued 12 expert reports. The issues and dispute background resulted in diverse opinions between the opposing experts.

Following the issuance of expert reports, the attorney took depositions of each expert. The depositions were recorded not only for use as part of the mock trial, but also for review and training opportunities. Each participant was assigned a mentor with significant trial experience as part of the event. The participants had an opportunity to review the depositions with their mentors for feedback on questions, responses, style, and body language before live questioning during the mock trial. 

The mock trial was held in person over two days and provided the feel of an actual arbitration. Counsel provided opening and closing arguments for each party. The experts provided direct testimony and were subjected to cross-examination by each opposing attorney. The panel heard a Daubert argument, actively questioned the experts, and ruled on objections. At each hearing stage, the parties were subject to time constraints. 

The panel provided immediate feedback to the participants after the hearing. Additionally, the hearing was recorded, allowing for additional training opportunities with a review between the participants and their mentors following the event.  

The in-depth nature of the event required a significant commitment from the participants. However, it provided an excellent opportunity for the attorneys to gain first-chair experience and for the experts to face live questioning from an adverse side. The teaming nature of the event also fostered relationships among and between the different parties. All involved participants spoke to the value of the event, and the participating firms are looking forward to similar opportunities in the future to develop their staffs and foster a new generation of construction attorneys and experts.

With the significant current caseloads carried by ABA Construction Forum members, a comprehensive mock trial may seem overwhelming; However, long-term planning and a commitment by the participants make it possible. Additionally, the experience that the participants gained provided immediate developments in their ability to support litigations while positioning them to step up to additional responsibilities sooner because of the event. 

The participating firms included: Fox Rothschild, LLP, Holland & Knight LLP, Peckar & Abramson, P.C., and FTI Consulting. 

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Author Chris Sammon is a Senior Director in FTI’s Construction, Projects & Assets Group. With twenty years of experience in construction as a contractor and consultant, Chris provides consulting services related to construction delays and damages across the construction industry.

Meet the Forum's In-House Counsel: RACHEL CLANCY

Company: Lobar, Inc. 
Email: rachel.clancy@lobar.com 
Website: www.lobar.com
College: York College of Pennsylvania (Bachelor of Science in Marketing, 2001)
Graduate School: Florida Institute of Technology (MBA in Acquisition and Contract Management, 2004)
Law School: Penn State University, Dickinson School of Law (JD 2007)
States Where Company Operates/Does Business: Headquarters are in Dillsburg, PA; construction projects located in Pennsylvania, Maryland, New York, and West Virginia

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Q: Describe your background and the path you took to becoming in-house counsel.

A: Before law school, I spent three years as a Contract Specialist writing construction contracts for the Department of Defense, Naval Facilities Command in New Jersey. I had no idea I'd eventually find my way back to construction. After law school, I spent five years in the business department of a local law firm handling corporate formations, a variety of commercial contracts, and learning some real estate law. After another four years in-house with a data and marketing company in Harrisburg, I accepted my current position with Lobar, where I've been for the last seven years. 

Q: How does working in-house compare or differ from firm life? 

A: As a business major in college, I always pictured myself as part of a business – one member of the team.  Although that was technically true in my years as an associate (I was one part of the law firm business), I noticed and was bothered by how minimally I was connected to the business of each client.  Depending on the needs of any particular client, I was able to glimpse only a small part of that business.  I handled a specific matter at the request of the client, but I did not have insight into other parts of the business, which I think is a disadvantage as counsel.  As in-house counsel I see all aspects of the business.  I can see how my decisions, actions, and work affect other employees and departments. I didn’t have that same opportunity or awareness as an associate in a law firm.  But, honestly, I didn’t have it during my first few years as in-house counsel.  It takes the right company and the right culture to feel like an integral part of the business. 

Q: What kind of work does your company do? Do you focus on specific sectors, states or regions? 

A: Lobar is a general contractor for public construction projects, handling primarily K-12 schools, water/wastewater treatment plants, and municipal facilities. We also have contracts with state and federal agencies. Our work is primarily within Pennsylvania, but we also have projects in New York, Maryland, and West Virginia. 

Q: How and when do you use outside counsel? In what kinds of matters? 

A: We use outside counsel for all disputes that go beyond negotiations and for specific areas where I lack expertise.

Q: What do you or your company take into consideration when vetting and/or selecting outside counsel? 

A: Most importantly, we are almost always searching for someone who has experience with public construction (even if the issue is not directly related to public construction).  Beyond that, we want to work with one attorney (or a small team) who will continuously and directly be involved with the legal matter for which we need assistance.  The law firm economics of origination and billable time should not be evident.  As a family-owned company, we seek consultants and counselors who can be part of our team.  We expect outside counsel to understand our culture, because that culture often dictates how we handle legal matters.  Therefore, we look for an attorney (or team) who has the expertise and will be the one(s) doing the work.

Q: What is the biggest problem that you see when working with outside counsel? 

Me and my two daughters.

A: Lack of communication.  I am rarely provided with documents being exchanged between the parties, and I do not have access to the document system used by outside counsel.  I end up having to use monthly invoices as a means of staying up to date (and updating the Board of Directors) on the status of a legal matter.  However, I understand that it is a challenge for outside counsel to determine how much to communicate because every communication is a cost to the client.

Q: What are some of your interests or hobbies?

A: I have been a soccer player since the age of six (and played through college). Despite a few years since then when I was raising children, I have continued to play in either an indoor coed league or an outdoor women's league. I’m also always in the midst of reading a book (or 2 or 3).  I drive almost 90 minutes roundtrip for my commute, so some of my “reading” is accomplished by listening to audiobooks.  Plus, I have more podcast episodes downloaded than I will ever have time to digest, even with my daily commute.  When I’m not with my daughters, playing soccer, working or sleeping, I’m learning something.

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Assistant Editor-in-Chief Jessica Knox is an Associate in the Minneapolis office at Stinson LLP. She represents owners, general contractors, and subcontractors in litigation disputes. Jessica can be contacted at jessica.knox@stinson.com. 

TOP TAKE-AWAY SERIES: The 2023 Fall Meeting in Washington, D.C.

Over 500 construction lawyers, experts, and consultants descended on Washington last week for the Forum’s 2023 Fall Meeting. Newly minted Forum Chair John Cook and Program Coordinators Catherine Delorey and Brian Zimmerman put together a stellar program focused on navigating government construction. For this installation of the post-meeting post, I'm teaming up with guest contributor, Jennifer Kanady, to bring you 10 of our top take-aways from this unique program. 

10. Contracting with the government is replete with risk that could easily trap the unwary. Nobody likes to be taken advantage of. But hell hath no fury like the U.S. Government scorned. Erin Cannon-Wells and Aaron Silberman, gave a (truly) delightful, Indiana-Jones-inspired presentation on the regulations that can doom the unwitting contractor who is less than perfectly forthright in its dealings. The government has created financial incentives for members of the public to report your company’s violations as part of a qui tam action. When you consider the number of potential whistleblowers in the bidding process and the contracting chain, a qui tam action would seem more likely than not. Add to that the sanctions contractors might face for even innocent errors either by their own companies or their downstream subs, and government contracting begins to sound increasingly like the Temple of Doom. Oh, and in case you were only focused on affirmative claims, beware the “reverse false claim” which is concealing information that would rightfully entitle the government to a credit…

9. The federal infrastructure act ("IIJA") can fund projects focused on clean water, clean school busses, and everything in between. Contractors who are clamoring to get their piece of the IIJA pie will need to make sure they can live by the government’s rules, chief among them being the Davis-Bacon Act (“DBA”). The DBA, among other things, requires contractors and subcontractors on federally funded construction projects to pay local prevailing wages and fringe benefits to laborers and mechanics. While this high-level aim may sound easy enough to achieve, there are several ancillary requirements built into the DBA that mandate that contractors must, for example, pay workers weekly and maintain adequate records for three years after completion of the work. It was for good reason that the DBA was one of the potential traps lying in wait for federal contractors discussed by Erin and Aaron (see Take Away No. 10 above). But during the Division 3 lunch program, Rob McDonald and Tamara McNulty advised attendees that the DBA is about to see the most significant and comprehensive changes it has seen in 40 years. Those changes to the DBA go into effect on October 23, 2023 so be on the lookout.

8. The U.S. Government is using its massive purchasing power to force sustainable construction. The U.S. Government is the largest purchaser of goods and services in the world. On an annual basis, it spends over $550 billion, with more than $24 billion of that spent on construction. According to James Nagle, the government is attempting to wield this purchasing power to force the "greening" of construction. Contractors who wish to bid on government projects are not just going to be evaluated on technical merit, key personnel, and price. They are also going to be assessed on their carbon footprint. The impact of these requirements on the bottom line has yet to be seen but will likely be substantial.

7. “Language connects us and shapes our most significant moments.” Attendees of the fall meeting were invited to a networking reception hosted at the Planet Word Museum where they sampled the culinary contributions of different immigrant cultures and were given free access to several floors of exhibit halls. Opened in 2020, Planet Word is the only museum in the country dedicated to inspiring a love of language. The museum’s mission is ever more critical given the fact that literacy rates in this country are actually declining; Planet Word reports that there are 32 million adults in the U.S. who can’t read. The museum's immersive exhibits had an amazing way of bringing words—whether signed, spoken, written, or sung—to life. Be sure to check out the video below to watch John Cook connecting with his karaoke skills!

6. Government contractors who fall victim to cyber-attack can find themselves subject to government sanctions as a result.  This is the word on the street by B. Stephanie Siegmann and Alex Trafton who gave an insightful workshop on the evolution of the threat to cybersecurity. The most startling statistic was that the vast majority of companies have experienced some form of cyber-attack over the last 12 months. To match the risk, federal rules requiring companies to provide adequate security and to report cyber incidents are being implemented. As if the loss of the data were not punishment enough, government contractors and grant recipients that fail to follow cybersecurity standards may be held accountable to the government for putting U.S. information and systems at risk.

5. When it comes to the government claims process, "two roads diverged in a yellow wood…" If you or your clients don’t agree with the contracting officer’s response to your claim for time and money, you have two paths to appeal: (i) the Court of Federal Claims and (ii) the Boards of Contract Appeals. Andrew D. Ness, Michelle D. Coleman, Timothy C. Tozer, and David Wonderlick gave an interactive presentation on the claims process and their perspectives about which of the roads should be taken depending on the circumstances. The Boards of Contract Appeals are presided over by administrative law judges and will be less formal. They allow pro se litigants, have accelerated processes available for claims under $100,000, and hew more closely to what you would expect to see in arbitration. If that doesn’t sound appealing (or if you miss the 90-day window to appeal with the Board), the Court of Federal Claims might be for you, although there's no guarantee that road will be less traveled by.

4. Attorneys can request—but not direct—their client’s current (but not former) employees not to speak to opposing counsel. This was just one of several ethical minefields we navigated with the help of Thomas E. Spahn. Other nuanced take-aways: (i) while it could be considered malpractice not to search the social media of an adverse witness, you can cross the line by attempting to “friend” them; and (ii) while most jurisdictions require you to return documents inadvertently sent by opposing counsel whether it is ethical to look at metadata that is inadvertently disclosed is highly state specific. Research the rules in the state where you are licensed so you don’t run afoul of them.

3. Engaging in ADR with the feds is a delicate—but possible!—process. It is always important to understand how a federal construction project might differ from a private one, particularly when it comes to resolving disputes. While historically the government was not willing to engage in ADR, this is no longer the case according to the Hon. Jeri Somers, Adrian P. Bastianelli, III, and Scott N. Flesch. Just because the possibility of ADR with the feds is on the table does not mean it should be pursued without careful planning. Harry Potter fans know it would be unwise to approach a Hippogriff with too much haste; so, too, a contractor must be patient and respectful in approaching the contracting officer with a proposed meditation plan. In order to set the stage for successful mediation with the government, a contractor should: (i) understand who has authority to bind the government; (ii) give the government rep time to understand and evaluate the case before requesting a mediation; (iii) be prepared and willing to select a mediator from the government’s preferred panel of judges; (iv) understand whether settlements will be paid from the Judgment Fund (which covers liabilities of the government); and (v) be prepared to establish some exposure that will justify settlement and recognize that the government will never settle for nuisance value. 

Tom Dunn, Jessica Knox,
and Chris Caddell at the Puttery

2. You can discover more about someone in an hour of play than in a year of conversation. That lesson was never better illustrated than at the divisional socials on Thursday evening. Divisions 1 and 6 teed off for a few friendly rounds of mini golf at the Puttery. Some were fortunate to experience the unparalleled exhilaration of a hole in one. Others mastered using the reverse side of the putter to chip balls over the obstacles instead of around. While the debate continues to swirl as to whether this technique was in the “spirit” of the game, fun was nevertheless had by all.

1. Dare to dream big. While Jackie Robison wasn’t considered the best African American player to come out of the Negro League, he became the first to break the Major League color line in 1947. This was the act that Bob Kendrick -- President of the Negro Leagues Baseball Museum in Kansas City, Missouri -- credits with igniting the civil rights movement. Until that time, the Negro League was the only option open to African American men (and women) who wanted to play professional baseball in this country. The fact that the athletes in the Negro League faced profound discrimination and adversity did not prevent them from competing at the highest levels. While they certainly weren't given their due respect contemporaneously with their achievements, a total of 35 Negro League players have now been inducted into the Major League Hall of Fame, including: (i) Andrew “Rube” Foster, credited with inventing the screwball; (ii) “Cool Papa” Bell, who could circle the bases home to home in 12 seconds flat; and (iii) Josh Gibson, aka “the Black Babe Ruth” who is reported to be the only player (of any color) to ever hit a ball out of old Yankee Stadium. They are the ultimate testament to the fact that if you dream big, there is no limit to what you can achieve!

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Co-author Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

Co-author Jennifer M. Kanady is Senior Counsel at FAC Services, LLC, a professional services firm with over 40 years of experience providing high quality, timely and trusted business services to architecture, engineering and construction management firms. Jennifer focuses her practice on design professional practice management and construction litigation and can be reached at JKanady@facfin.com.

Message from the Chair: Kelsey Funes (Volume I)

I am so honored to assume the Division 1 mantle from my friend, Tom Dunn, and look forward to carrying on his good work.

For those of you who don’t know me, I’d like to take this opportunity to share a bit about my background. I grew up in New Orleans and went to LSU for undergraduate and law school. (Geaux Tigers!) I started my practice in 1997 at Phelps Dunbar LLP in Baton Rouge, where I still practice today. I manage the litigation group in the Baton Rouge office of the firm. I practice as a construction lawyer full time and serve on the Construction Panel of the American Arbitration Association and serve as a mediator in construction cases.

I am married to Dr. Chris Funes (the world’s best pediatrician) and we are the parents to two high schoolers. My son is a high school senior and my daughter is a sophomore. So, when I am not lawyering, I have been spending my time lately touring colleges, prepping for homecoming, and helping to teach my daughter to drive (all very relaxing!!). We also have a very sweet (and very hairy) rescue dog, Maggie, who makes sure we get lots of walks.

I started attending Forum meetings almost 20 years ago. Division 1 created a gateway for me to build relationships and learn how to be a better construction lawyer. I’ve gained so much value from the Forum and can’t wait to pay it forward!

During my tenure as chair, I plan to keep up all the fantastic work that Division 1 has been doing. Over the next year, we will be focusing several of our programs on discovery which is the bread and butter for litigators and is in a season of change with the incorporation of AI. I have found that the best way to maximize Forum membership and deepen Forum relationships is by helping to do the work of the Forum.

I’m looking forward to seeing many of you in Washington D.C. later this week at the Forum’s Fall Meeting. We will be kicking off the meeting with a 2-hour planning retreat on Wednesday morning (September 27) at 9 am which any Division 1 member should feel free to join. 

On Wednesday afternoon we are presenting another fantastic practicum, A Guide to Bid Protests, which will offer valuable insight from experienced speakers on how to successfully prosecute a bid protest. 

On Thursday (September 28), our luncheon presentation is "A View from the Arbitrator’s Bench" which should not be missed by anyone who arbitrates construction cases. 

Finally, on Thursday evening, we will have a great time socializing and playing mini golf with D1 friends new and old at The Puttery. For tickets, go to the following link: http://Sendomatic.com/eY2Vk or find me or a member of the D1 Steering Committee to get the QR code to sign up. If you are attending the Fall meeting, I invite you to join us for all of these outstanding activities.

I look forward to working with all of you and encourage anyone with program ideas and suggestions to reach out to me.

BOOK CLUB SERIES: Everything You Want to Know About Construction Arbitration But Were Afraid to Ask

John Foust (left) and Andy Ness (right)

I recently had the pleasure of speaking with construction law notables John Foust and Andy Ness to discuss the release of their new book—Construction Arbitration: The Advocate’s Practical Guide. The goal of their book: to teach attorneys what they need to know to maximize their effectiveness in the arbitration context. To that end, the book covers every aspect of the arbitration process including motion practice, conduct as an advocate, presentation of the case, and post-hearing submissions. Read on for Andy and John’s candid, behind-the-scenes take on how this book came to be and why you should get your copy now, while supplies last!

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Q: Who is the target audience for this book?

Andy:  In the editing process (and in writing my own chapter on Navigating an International Construction Arbitration) I pretended that I was speaking with a construction lawyer who was a few years out of law school, with some litigation experience, who was getting ready to take on a significant and complex construction arbitration for the first time.  The book presupposes knowledge of the basics and tries to anticipate the questions that would be asked when you are trying to think through the whole arbitration process from start to finish. What should my pleadings look like? How much discovery am I likely to be able to obtain? How should my demeanor be different from what I would do in a courtroom? How much should I object during the hearing? In a nutshell, it’s “What do I need to know to maximize my chances of success in the arbitration setting?”

Q: What was the inspiration behind this book? Why this topic and why now?

John: There is nothing like it out there that we could find. There are a couple of much longer, scholarly treatise-like books about arbitration law, but nothing that was concise, readable, and practical. We wanted to provide something useful and accessible that would get you on the right track in a construction arbitration, right from the start — things that our authors had to learn on-the-job. As to timing, it just seemed overdue!

Q: Is this the first time this topic has been tackled in an ABA-sponsored text? What do you think sets this book apart from the others?

John: It’s the first, all right, and we hope it will be something of a model for other Forum books down the road. Keep it concise and practical, rather than trying to produce a lengthy tome that looks impressive, but will mostly just sit on a shelf.

Q: How did you go about creating the framework for the book?

Andy: We intentionally took a soup-to-nuts approach, consistent with the goal to get the reader ready for every stage and part of the arbitration process, from deciding whether arbitration is right for the dispute (where you have that option) to handling a post-award motion to vacate.

Q: The list of people who authored chapters in this book reads like a veritable “who’s who” in construction law. What was it like collaborating with such an impressive group of folks?

Andy:  It definitely is an All-Star team of authors, and that was the idea from the outset. Let’s find the best group of people who have had a highly successful track record as arbitration advocates, and (for the most part) have, in more recent years, seen arbitrations mainly from the vantage point of an arbitrator. Six of the ten lead authors are former Forum Chairs, and all ten are members of the American College of Construction Lawyers.

Working with this group was a lot of fun and pretty easy. While they are all busy, they turned in high-quality first drafts, mostly on schedule. And they all are self-deprecating as a rule and keep their egos in check.  They appreciated that, despite extensive experience, they don’t know everything and were receptive to adding ideas and insights where we, as editors, suggested something.

Q: What was the biggest challenge you encountered in putting the book together? Any regrets/lessons learned you care to share?

John: Putting together any book, even when 90% of the chapters are authored by others, is a big undertaking. No regrets, but it always works out to be considerably more effort than you anticipated at the start. The biggest challenge is just keeping at it; finding time every month to push the book ahead, for seemingly endless months, even when you are busy with work that you get paid for!

Q: You state in the book's introduction that even the most seasoned construction attorney can benefit from this book...As experienced practitioners yourselves, what did you learn in putting together this book that surprised you?

Andy: Perhaps surprisingly, I learned the most from the international arbitration chapter that I wrote. I asked two other chapter authors (Wendy Venoit and Zach Torres-Fowler) who do a lot of international arbitration to review and comment on my draft. Each of them brought out several interesting points from their own experience that I had not encountered, and those added real value to the chapter. It was also interesting to see that the authors of the discovery-related chapters (Deb Ballati and Jim O’Connor) had some different viewpoints as to how much discovery is commonly allowed.

Q: In what ways has construction arbitration changed or evolved in recent years? Will this book provide some “continuing education” on the current best practices in this space?

Andy: Construction arbitration evolves at a more rapid pace than most appreciate. This occurs as different ways of speeding the process and making it more efficient are tried and spread organically when they work well. What we are seeing currently is greater adoption in the U.S. of practices used with frequency in international arbitration, like the use of witness statements in lieu of direct examination and simultaneous testimony from matched expert witnesses. This borrowing of successful ideas used elsewhere will likely only accelerate as more advocates and arbitrators have favorable experiences with them. We included discussion of many such new ideas and techniques, and not just in the international arbitration chapter, to help this process along and keep the book relevant, hopefully for many years to come.

CLICK HERE TO PURCHASE A COPY OF

CONSTRUCTION ARBITRATION: THE ADVOCATE'S PRACTICAL GUIDE 

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Editor Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.

Consultant Corner: Key Players and Common Issues in Delegated Design

Delegated design as set forth in construction documents for buildings, while an often-used instrument, can be misunderstood or poorly executed by the Owner, Design team, and/or Construction team, and result in disastrous consequences. The term ‘delegated design’ as commonly used in the AIA B-101 Contract between the Owner and Architect means that “if the Contract Documents specifically require the Contractor to provide professional design services or certifications by a design professional related to systems, materials or equipment, the Architect shall specify the appropriate performance and design criteria that such services must satisfy.”

The Key Parties involved include the Architect and Engineer of Record, the General Contractor, the Specialty Contractor, and the Specialty or Delegated Engineer; their relationship can graphically be described as follows:

Typical delegated design items include stairs, handrails, davits, structural steel connections, precast concrete components, elevator support rails and beams, façade components and cladding, and other such items where, ideally, the Contractor and the Contractor’s engineer can provide the components by taking advantage of the Specialty Contractor’s means and methods and provide that value to the Owner.  The delegated design may include unique attributes associated with the selected Contractor, such as concrete strengths, manufacturing processes, glass types, steel connection hardware, configurations of components, and specialty fabrications.

Owner

On behalf of the Owner, the Design team, consisting of the architects and engineers included in the term ‘Architect’ above, decides whether to delegate a portion of the design to the Contractor.  Sometimes the designers believe they can reduce their own labor costs by delegating some of the design, but commonly this decision results in more time spent for the Architect in specifying the performance and design criteria as well as performing a close review of the shop drawings and calculations.  It is important to note that the Design team must coordinate all of the dimensional aspects of the building in order to meet the Owner’s criteria for the use and function of the space.  This means that the dimensions of delegated components must be worked out and coordinated by the architects and engineers, not left to the imagination and whims of the delegated Contractor and their engineer.

Design Team

In the graphic illustration above, the Architect of Record and the Structural Engineer of Record are typically contractually bound to each other, and responsible for the coordination of the project design.  The delegated components are technically delegated to the Contractor or Specialty Contractor, who engages the Specialty or Delegated Engineer to design the components and connections.  There is no ability, nor contractual mechanism, for the Delegated Engineer to directly coordinate with the Architect of Record to confirm wall thicknesses, beam depths, clearances, conceptual connections, column locations and sizes – these must be worked out between the Architect and Engineer of Record.

In some states such as Florida, there exist Administrative Rules or Codes that prescribe the details required of the architect and engineer in delegating the design of components.  These can include the configuration (size, spacing, shape) of the components, as well as details of supports, anchors, and connections.

Construction Team

The Contractor may receive a set of drawings from the architect and engineers (the ‘Architect’) that contain delegated designs that do not sufficiently ‘spell out’ the appropriate performance and design criteria, or that are missing the configuration and sizes of the components such that coordination of the work will be required.  In those instances, the Contractor should ‘raise the flag’ and note that the particular design has not been properly delegated – and not just hope that the information can be flushed out during the shop drawing review process.  Again, there is no contractual link between the Delegated Engineer and the Architect – and therefore, the necessary coordination between disciplines cannot occur in a proper and timely manner.

Summary

Delegated design can provide cost, schedule, and quality improvements for a building Owner if the Architect follows the guidelines for properly delegating the design of components to the Contractor, and the Contractor engages a Delegated Engineer who provides calculations and drawings for the component design in accordance with the performance and design criteria specified by the Architect.

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Author Bill Bast specializes in the design and investigation of building structures, and has forty years of experience as a structural and forensic engineer, construction manager, and contractor. He is a Past President of SEAOI and NCSEA and serves as an expert witness on structural engineering and standard of care issues, and can be reached at william.bast@socotec.us

Editor Thanh Do is an Associate in Thornton Tomasetti, Inc.'s Forensics practice group. As a structural engineer, structural failure analyst and investigator, Dr. Thanh Do examines infrastructure inadequacies and determines the root cause of the alleged failures. He specializes in Design-Build project delivery, quantity growth investigation, building collapse investigation, standard of care assessment, construction defects and design errors/omissions evaluation.