Issues & AdvocacyState
Introduction – March 2013
Concerned about the implications of design-build on architectural practice, AIA State & Local Government Relations staff, State Government Network, and task force volunteers initiated a study of project delivery laws across the country in order to assist and empower component chapters with strategies that advance the business interests of architects. The process has resulted in a new matrix of state laws (and their citations) for design-build and construction manager at-risk project delivery across the country and a “Design-Build Reform Toolkit” (“toolkit”) aimed to inspire volunteers to engage in the legislative process relating to project delivery. The toolkit is comprised of (1) an overall strategy summary of the issues, (2) optional, suggested legislative language to help components draft legislative proposals, (3) an issue brief on construction manager at-risk as an alternative to design-build, and (4) an overview summary document of project delivery methods.
What we’ve concluded through this research and analytical process is that while design-build is already deeply entrenched in the design and construction industry, and the Design-Build Institute of America (DBIA) will continue to focus on its expansion, AIA members can (and should) meaningfully influence positive change to improve the method for owners and maintain the role and expertise of architects. Design-build’s primary attraction for owners is the single point of responsibility/contract with one entity. This entity is usually a contractor who subcontracts with an architectural firm. Inherent in that structural context lies potential contractual conflicts of interest because the architect no longer has a contractual relationship with the owner. Instead, the architect’s contractual responsibilities and obligations flow to the contractor. This paradigm shift in itself is not problematic when there is a solid, trusting professional relationship between architect and contractor and the procurement process for both the architect and contractor is based on qualifications. Outcomes, however, can be significantly weakened when the ideal circumstances described above are not present and, consequently, architects should prioritize their engagement in the state policymaking process on issues of project delivery.
As design-build continues to gain traction across the country over design-bid-build, and as contractor-led design-build continues to trend upward, any and all expansion efforts by DBIA and other organizations must be balanced with the voice of architects. Owners, particularly public owners, need to know that claims of “faster, cheaper, better” rely heavily on variables such as the owner sophistication, the degree of diligence involved in developing the initial project scope, and the extent to which the owner is involved through the project’s duration, including construction. In light of these variables, having an independent architectural firm acting as the owner’s representative can make all the difference in the world; however, this consideration and other measures to ensure project control through construction are not being accounted for in state policymaking arenas. In fact, the vast majority of states that have passed design-build laws do not require independent architect oversight on behalf of the owner. Moreover, the vast majority of states do not allow, much less require, a pure qualifications-based selection process of the design-build team.
Not only can architects provide legislative solutions to fix the problems identified with design-build, but architects should also seriously consider whether construction manager at-risk might be preferred over design-build in your state. The final analysis should be made at the state level but we recognize that the contractual structure of CM at-risk, when written properly, has attributes that can indeed potentially deliver a project consistent with the “faster, cheaper, better” mantra of design-build BUT without the problems.