1. Chief Legal Counsel, OSFC
DB Contract Documents
Lane Beougher
State Architect
Jerry Kasai
Chief Legal Counsel, OSFC

2. Design-Build Contracts Outline
Basic Design-Build Concepts
Benefits of Design-Build?
State of Ohio contract v. industry contracts?
The Public Authority’s team, including the Criteria A/E, and their roles?
The Design-Builder’s team and their roles?

3. The Design-Builder
Single entity that integrates the design and construction of a construction project
“Integration” of design and construction is key to success

4. Design-Build Law
ORC
(C)(2) “Design-build” means a project delivery system for improvements to real property by which a person is solely responsible contractually as a contractor to an owner for both the design and construction of the improvement, which design and construction may include a performance-based specification established by the owner rather than a specific design as an improvement goal. ( )

5. Design-Build Law
ORC
(A) Notwithstanding any other provision of this chapter, any person who performs labor or who provides services pursuant to a construction contract may offer or provide architectural services in connection with the person’s own labor or services if all of the following apply:

6. Design-Build Law
ORC
(1) The architectural services are provided and performed by an architect registered under this chapter or by a firm holding a certificate of authorization granted pursuant to this chapter through either direct employment or independent contract with the person contracting with the owner and offering the services.

7. Design-Build Law
ORC
(2) The architectural services are offered by the person who intends to perform the actual construction of an improvement to real property as part of a design-build contract.

8. Design-Build Law
ORC
(3) The contractor, the architect registered under this chapter, or the firm holding a certificate of authorization granted pursuant to this chapter meets the requirements of section of the Revised Code when design-build services are provided to a public authority as defined in section of the Revised Code.

9. Design-Build Law OAC 4703-3-12
(A) An architect may provide design services in a design-build contractual relationship provided the architect:
(1) Is an architect licensed to practice in the State of Ohio or represents an architectural firm authorized to provide architectural services in the State of Ohio, and

10. Design-Build Law OAC 4703-3-12
(2) Assures a written disclosure has been given to the client by the entity identifying the architect or architectural firm engaged by and contractually responsible to, the entity offering design-build project services, and

11. Design-Build Law OAC 4703-3-12
(3) Assures the entity agrees that the architect will have direct supervision of the architectural work and that the architect’s services will not be terminated on the project, without the immediate replacement by another architect.

12. Design-Build Law OAC 4703-3-12
(B) A design-build entity shall not offer to provide or provide architectural services, unless the design-build entity is, or independently contracts with, an architect practicing as a sole proprietorship, an architectural firm holding a certificate of authorization to provide architectural services as set forth in Chapter of the Revised Code or employs one or more architects authorized to provide architectural services.

13. Basic Design-Build Concepts
Pros
Single point of responsibility for owner
Faster completion than Design-Bid-Build
Good cost control
Early negotiation of guaranteed maximum price
Good process for complex projects
Owner sees design concepts from multiple teams

14. Basic Design-Build Concepts
Cons
Less owner influence during design
Costly for unsuccessful Design-Build teams
Less owner control after Design-Build team selected

15. Benefits of Design-Build
Comparison of U.S. Project Delivery Systems
(Construction Industry Institute / Penn State University Study)
Metric
DB vs. D-B-B
CMR vs. D-B-B
DB vs. CMR
Unit Cost ($/SF)
6.1% lower
1.6% lower
4.5% lower
Construction Speed
12% faster
5.8% faster
7% faster
Delivery Speed
33.5% faster
13.3% faster
23.5% faster
Cost Growth
5.2% less
7.8% more
12.6% less
Schedule Growth
11.4% less
9.2% less
2.2% less
“Comparison of U.S. Project Delivery Systems,” Mark Konchar & Victor Sanvido, Journal of Construction
Engineering and Management, Vol. 124, No. 6 (1998), pp

16. Benefits of Design-Build
How does Design-Build reduce cost?
Design decisions are guided by the entity guaranteeing the price:
At preliminary stage, the builder is part of the design process.
Price is now guaranteed by both designer and builder.

17. Benefits of Design-Build
How does Design-Build reduce cost?
Design decisions (cont’d)
Builder has control over design to manage price.
Designer has direct cost feedback, rather than simply depending on estimates.

18. Benefits of Design-Build
How does Design-Build shorten schedule?
Design and construction happen concurrently:
No longer is design completed prior to any construction activity, such as mobilization.
Long lead items may be ordered in advance, while design integration takes place.

19. Benefits of Design-Build
How does Design-Build shorten schedule?
Design and construction (cont’d)
Field decisions and coordination time is reduced because of mutual incentives.
Project close-out activities are concurrent rather than sequential.

20. Benefits of Design-Build
How does Design-Build improve quality?
Risk and liability structure of the delivery contract is completely realigned:
No longer do you have two contracts, there is only one contract with the Design-Builder.

21. Benefits of Design-Build
Risk and liability structure (cont’d)
The Design-Builder is liable for design negligence.
The Design-Builder is liable for means and methods and construction negligence.
The Design-Builder is responsible for operation and maintenance performance, warranties, and as-built documentation.

22. Differences in Construction Reform Design-Build & Private Industry
Process
Pre-qualifications

23. Differences in Construction Reform Design-Build & Private Industry
Process
Best Value

24. Differences in Construction Reform Design-Build & Private Industry
Process
Guaranteed Maximum Price

25. Differences in Construction Reform Design-Build & Private Industry
Process
Criteria Architect
Criteria Architect

26. State of Ohio Design-Build Contract
Agreement Form
Performance Bond Form
Payment Bond Form
GMP Amendment

27. State of Ohio Design-Build Contract
Contracting Definitions
General Conditions
Supplementary Conditions
State of Ohio Subcontract Form

28. State of Ohio Design-Build Contract
Based on CMR Contract except:
Design services scope for A/E of Record (AOR)
DB secures plan approval and storm water permit (documents sealed by AOR)

29. State of Ohio Design-Build Contract
Based on CMR Contract except (cont’d)
Design services fee (separate from preconstruction services fee)
Professional design liability insurance required for A/E of Record
Limited role of Criteria A/E during construction

30. Other Design-Build Contracts
AIA Contract Documents (A141)
American Institute of Architects
ConsensusDOCS (410)
ConsensusDOCS, LLC (Primary Sponsor: AGC)

31. Other Design-Build Contracts
DBIA Contract Documents ( )
Design-Build Institute of America
EJCDC Contract Documents (D525 + D700)
Engineers Joint Contract Documents Committee

32. Role of the Criteria A/E
Public Authority’s Project Team
Project Manager (Contracting Authority)
Owner’s Representative (Owner)
Criteria Architect/Engineer (Criteria A/E)
Retained by the Public Authority per ORC through (QBS) or is an employee thereof

33. Role of the Criteria A/E
Preconstruction Services (Article 5)
Verify or Develop Program of Requirements
Validate Project Scope, Budget, and Schedule
Develop Project Definition and Criteria
Assist development of Request for Qualifications
Ensure design is compliant with the design criteria and owner requirements

34. Role of the Criteria A/E
Construction and Closeout (Article 6)
Ensure construction is compliant with the design criteria and owner requirements
Certify payment requests are commensurate with extent of completed Work
Manage quality testing and special inspections
Provide analysis of claims
Assist the owner review the Design-Builder’s punch list and perform final inspection

35. Construction Administration Roles
Section
Topic
CMR Contract*
DB Contract*
5.8.1
Secure Plan Approval
A/E
DB (AOR seals plans)
5.8.4
Secure Storm Water Permit
6.9
Special Inspection (Ch. 17)
A/E (Cont. Auth.)
Cont. Auth. (Crit. A/E)
Structural Testing
A/E (CMR)
DB (Crit. A/E)
6.10.2
Request for Interpretations
6.21
Review Action Submittals
6.23
Direct Uncovering the Work
6.27.2
Conduct Punchlist Review
“Primary responsibility listed first with secondary responsibility listed in parentheses (if requested)

36. Construction Administration Roles
Section
Topic
CMR Contract*
DB Contract*
6.30
Certify Contract Completion
A/E
Cont. Auth. (Crit. A/E)
7.2
Prepare Change Orders
7.3.1
Prepare Proposal Requests
7.4
Prepare Change Directives
A/E (Cont. Auth.)
7.5
Direct Minor Changes
7.6
Review Differing Conditions
Crit. A/E
8.8
Provide Analysis of Claims
Certify Payment Requests
“Primary responsibility listed first with secondary responsibility listed in parentheses (if requested)

37. The Design-Build Team Determining Team Members
Establishing Ground Rules
Intangibles
Establishing trust
Getting the right people on the bus

38. The Design-Build Team
Goal
Communication
Collaboration
Integration

39. Design-Build Team Structure
Integrated firm
A firm with design and construction capability
Joint venture
A/E and contractor form a legal partnership
Contractor led team
Contractor engages A/E as design consultant
Designer led team
A/E engages contractor to perform Work

40. CONSULTING ENGINEERS Various
Integrated Firm
OWNER
DESIGN /BUILDER
in-house design +
construction staff
PROJECT MANAGER
(in-house or subcontracted)
CONSULTING ENGINEERS Various
SUBCONTRACTORS
SUPPLIERS

41. Joint Venture OWNER JOINT VENTURE (A/E + Contractor)
ARCHITECT/ENGINEER
CONTRACTOR
CONSULTING ENGINEERS Various
SUBCONTRACTORS
SUPPLIERS

42. Contractor Led OWNER DESIGN /BUILDER (Contractor)
SUBCONTRACTORS Various
ARCHITECT
CONSULTING ENGINEERS Various

43. Architect/Engineer Led
OWNER
DESIGN /BUILDER (Architect/Engineer)
CONSULTING ENGINEERS Various
CONTRACTOR
SUBCONTRACTORS Various
SUPPLIERS Various

44. Design-Build Team Structure
1. Contractor Led: 49%
2. Integrated Firm: 24%
3. Designer Led: 24%
4. Joint Ventures: 3%
2005 Study by the Design-Build Institute of America (DBIA)

45. DB Contract Documents
Questions: Lane J. Beougher State Architect Jerry Kasai Chief Legal Counsel