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A True Design-build Contractor Shoulders All The Risk

Monday, September 03, 2012 05:49 am


All design-build contracts are not created equal. Some place more risk on the contractor than others. Even where a contractor is largely responsible for the project design, it may succeed in holding the government liable for providing defective information on which the design is based. But victory will require that the contract documents made actual promises (not mere predictions) that the contractor was entitled to rely on, to its detriment.

Government is responsible for its specific plans

Risk shifts to the government when it provides information that it intends the contractor to rely on. In Pitt-Des Moines Inc., ASBCA 42838,96-1#BCA para. 27, 941 (1995), a contractor prevailed on its differing site conditions claim because the actual wall thickness of the building differed from what the contractor gleaned from government-supplied drawings.

Similarly, in M.A. Mortenson Co., ASBCA 39978, 93-3#BCA para. 26, 189 (1993), the board found that because the government had made certain warranties, the contractor should not shoulder the design risk all on its own. For example, the government prepared and furnished drawings that indicated specific sizes and quantities [...]

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