Unfair Risk Allocation on Design-Build Projects

Risk reward sign

The Spearin Doctrine protects a builder from design documents containing errors by entitling them to receive equitable compensation.

June 13, 2022
Brian Perlberg, Executive Director of ConsensusDocs Coalition & AGC Senior Counsel

The AGC annual convention included a session entitled “Who’s on the Hook for Design Defects in Design-Build Projects.” Fox Rothschild’s Dirk Haire, Les Synder of Infrastructure Construction Brightline West, and David Hecker of Kiewit presented. Attendees crowded into a standing-only room because more and more builders are facing design liability, especially design-builders on large infrastructure projects. The presentation highlighted how some owners abuse the submittal process on design-build jobs to make changes without compensating the builder with more time, money, or both. One project took a sample of owner comments and extrapolated that just one project generated over 15,000 submittals and generated over 110,000 comments of “concern” or “preference.”

Certain owner-representatives and attorneys for owners have oversold the risk allocation transfer aspect of design-build. The Spearin Doctrine protects a builder from design documents containing errors by entitling them to receive equitable compensation. The design-build project delivery method erodes potential Spearin protections. Ways that an owner may retain some design responsibility and bring Spearin protections back into play for a builder include the following:

  • Accuracy of reports prepared by owner’s outside consultants
    • Owner’s design approval process
    • Viability of owner’s stated design and project criteria


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