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  • Question

    Can this project go out as a design build if all we want is the plans updated? Does it qualify as a design build if we already paid for the design once?


    Answer

    This does not sound like a design-build project as envisioned by FAR 36.3 in so far as you indicate the agency desire to use the 100% design already produced and simply have the contractor “update the design” since regulations may have changed in the past 5-6 years (and therefore grandfathering rules will not apply). 

    You have a classic case of lost design where the agency desire is to recover the sunk costs.

    Your dilemna revolves around professional design liability and the government’s ability (or lack of ability) to force a construction contractor to accept that professional liability without compensation.  The original designer produced a set of plans and specifications, was paid for that work and in the interim has moved on to other projects since the government did not use that product.  Now 5-6 years later, requiring a D-B firm to utilize someone else’ design forces them either to re-design (or at least re-work the calculations to access the risk) or accept the liability of an unknown design.

    The choice here is:
    1) Contract an A-E firm under the Brooks Act to update the design and contract the construction using normal means.
     or
    2) go with a design-build contract stating that the current design is a “concept” and accept the fact that a contractor may choose to use it or not use it.

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