Claim Reduction is a monthly series by the ASCE Committee on Claims Reduction and Management designed to help engineers learn from problems that others have encountered.
Delegated design is where design responsibility is partially transferred from the Engineer of Record or architect to contractors or specialist subcontractors. Increasingly, it is used in projects where specialized components such as curtain walls, mechanical systems, electrical systems, and/or structural elements require detailed design expertise from suppliers or manufacturers. While this approach offers efficiency and leverages specialized knowledge, it also introduces various engineering, contractual, and risk-related challenges. This article identifies some of those risks and suggestions for reducing the impacts from those risks.
Understanding delegated design
In a traditional project, the EOR is responsible for delivering a complete, coordinated design that meets code and owner requirements. Delegated design shifts a portion of the design responsibility, often related to specific systems and/or components to the contractor. When delegating the design, the EOR provides performance specifications. The contractor or its subcontractor or supplier then develops detailed design documents including drawings and calculations based on performance specifications. Some common delegated systems include:
- Steel connections.
- Fire protection systems.
- HVAC systems.
- Curtain walls and facades.
- Precast concrete components.
- Electrical systems.
- Excavation shoring.
- MSE retaining walls.
These systems often require specialized knowledge of proprietary products or manufacturing methods, making delegation appealing.
There are technical issues ensuring seamless integration of delegated designs into the overall project. The EOR is responsible and coordination for the overall performance of the project design. Gaps in coordination can lead to:
- Mismatched interface conditions.
- Structural incompatibilities.
- Delays due to redesign.
- Inconsistent or ambiguous design responsibilities.
This is particularly critical in systems with physical interfaces such as precast systems connecting to a structural frame. Other examples include mechanical and electrical system integration. Somewhere in the agreements between the owner and contractor and between the contractor and its subcontractors providing delegated design coordination the responsibilities need to be clearly spelled out.
Ambiguity in design intent
A recurring issue in delegated design is the insufficient clarity of the performance specifications. If the EOR does not adequately define the performance criteria (such as load capacity, fire rating, or energy efficiency), the contractor may produce a design that meets minimal compliance but fails in terms of constructability, maintainability, or integration.
Verification and review burdens
EORs must review and approve shop drawings and submittals from delegated designers. However, confusion often arises about the extent of the review:
- Is the EOR responsible for verifying all engineering calculations?
- Can the EOR reject the delegated design if it meets performance specifications but not the original design intent?
This gray area increases the risk of overlooked deficiencies or disputes regarding design adequacy. If the EOR is planning on requiring delegated design, the roles and responsibilities need to be clearly defined in the agreements between the owner and contractor and owner and engineer.
Responsibility and liability
Delegated design can blur lines of liability:
- The EOR may be held responsible for overall design, even if a failure occurs in a delegated component.
- Contractors may disclaim design responsibility, citing adherence to the specifications.
This makes it critical to define responsibilities clearly in contracts, including indemnity clauses, insurance requirements, and professional licensing compliance for those providing delegated design.
Licensing and professional accountability
Contractors providing delegated design in most jurisdictions must use licensed professionals. If a contractor undertakes delegated design without involving a licensed engineer, the resulting design may be legally invalid, leading to project delays, liability claims, or code violations. The specifications should clearly state that any delays resulting from these licensing requirements is the contractor’s responsibility.
Check code compliance
Since the delegated designer is not usually involved in the full project design, there is a risk that their design might not comply with:
- Local building codes.
- Fire protection standards.
- Accessibility requirements.
- Energy codes.
Unless the EOR rigorously checks compliance, the project may require costly rework or risk rejection by code officials.
Communication and documentation challenges
A common pitfall in delegated design is unclear demarcation of who is responsible for what. This often arises when:
- The performance specification(s) are too vague.
- There is no clear division of design responsibilities; the EOR’s responsibilities vs. the contractor’s responsibilities.
- Who is responsible for submitting and responding the delegated design elements to the code/permitting authorities.
Such ambiguities can result in duplicated efforts or gaps in design coverage, leading to construction delays and rework.
Another pitfall is poor documentation practices. Inadequate documentation during delegated design can lead to confusion during construction, lack of decision-making traceability, and difficulty in post-construction maintenance and troubleshooting. Forensic investigations following system failures often reveal poor documentation as a root cause.
Risk management issues
Delegated design can increase complexity in the QA/QC process that isn’t always considered. Ensuring quality in delegated design requires a robust QA/QC process, including:
- Detailed submittal review protocols.
- Third-party checks.
- Regular coordination meetings.
QA/QC processes need to be clearly defined in the contract documents including the EOR role. Without this, design and construction defects may go undetected until late stages, resulting in delays to the project schedule and increasing costs.
Even when a delegated design component fails due to contractor error, the EOR may be liable if it is determined that the EOR inadequately reviewed the design. The delegated design usually applies to a single element of the project; the EOR is therefore responsible for cross-referencing submittals with the project’s design intent. The EOR is responsible for the structural and functional integrity across all elements.
Here’s one example where the EOR was included in a lawsuit: The civil site design for a project designed a perimeter access drive with a 15-foot-high contractor-designed wall separating the road from a wetlands area. The contractor subcontracted with another engineer to design the wall, and the earthwork contractor built it. When the wall moved horizontally due to instability during a rain event, the civil engineer was included as a defendant in the owner’s lawsuit.
Mitigation strategies
To address these engineering challenges, there are several recommended practices to consider:
Clear scope definitions: Use Responsibility Matrix documents to define roles and responsibilities. Clearly define the role of the EOR and Contractor. Clearly state what is included in the base design vs. what is delegated.
Robust performance specifications: Ensure that delegated components are defined with precise functional and performance criteria. Avoid generic language that could be misinterpreted.
Enhanced review processes: Allocate sufficient time and resources for reviewing the delegated design. Maybe use another engineer in the office to review and confirm coordination between the project design and delegated design.
Effective communication: Conduct coordination meetings early and often. Encourage open dialogue between EOR, contractors, and delegated designers.
Legal safeguards: Clearly allocate liability in contracts. Require that delegated designs be sealed by licensed engineers or other professionals. Ensure that professional liability insurance is adequate.
Conclusion
As we rely more and more on specialists in developing designs, we are seeing more requirements for delegated design on our projects. Delegated design offers flexibility and leveraging specialized expertise. However, it introduces complex engineering challenges that require careful and well-coordinated management. Clear scope definitions, robust communication, detailed performance specifications, and rigorous design review processes are essential to mitigating the risks when utilizing delegated design.
Ultimately, the success of delegated design depends on the clarity of roles and responsibilities, as well as the integrity of the coordination between the EOR and the delegated designer. Projects that fail to address these issues often suffer from delays, cost overruns, and disputes. Those that manage them well, on the other hand, benefit from improved efficiency and innovation in engineering design.
Learn more at ASCE’s Risk Management Hub.
Read more helpful insights from the committee’s Claim Reduction series on the Civil Engineering Source.
