Construction Today - June 2017 - 78
By Sarah Biser
The Gray Area of
re design/build construction
contracts legal in New York for
both public and private projects?
Surprisingly, the answer is not a
simple yes or no.
Traditionally, construction projects have
not been design/build, but rather design/
bid/build. In that system, the owner contracts first with a design professional and
then separately bids out the project and
contracts separately with a contractor. The
designer is responsible only for its failure to
meet the "standard of care." This means the
owner is responsible for the design to the
extent that there are non-negligent errors
or omissions. The owner also bears the risk
of the designer and contractor blaming each
other for errors or delays.
In a design/build project, builders and
independent licensed design professionals
bid together and enter into a single con-
CONSTRUCTION-TODAY.COM JUNE 2017
tract with the owner - a process that many experts believe reduces
the time and cost of projects, minimizes disagreements, reduces
change orders and reduces construction issues often related to lack
of coordination. The contractor/designer team with the winning
bid is responsible for delays, cost overruns, and all other construction related damages. Finger pointing between the design professional and the contractor, which often leaves the owner in the
lurch, is eliminated.
Design/build seems to be a home run. So what's the problem? The
answer differs for public and private projects.
New York Governor Andrew Cuomo has proposed legislation that
would expand the use of design/build among state agencies (but
not in New York City agencies), just in time for President Trump's
proposed $1 trillion infrastructure program. Currently, New York
has authorized the use of design/build process for only a few state
agencies and authorities since 2011, when New York passed a law
authorizing five agencies and authorities - including the Department
of Transportation - to use design build.
Notable design/build projects in New York include the $3.9 billion