Loulakis and Smith at the Forefront of Design-Build Liability
by Andrew Ausel | January 21, 2016
A new report published by the National Cooperative Highway Research Program (NCHRP) highlights the issue of liability in design-build projects and was in-part authored by two of DBIA’s most influential members and thought-leaders. The report titled, Liability of Design-Builders for Design, Construction and Acquisition Claims, outlines case law and legal precedent that underlie the transfer of liability in design-build projects. Contributors to the report include Michael C. Loulakis, Esq., DBIA and Nancy C. Smith, Esq., DBIA who have contributed to DBIA and its vision as dedicated DBIA members.
The problem this report seeks to address is the need of state highway departments and agencies to continually update their knowledge of operational practice and legal changes in highway law. According to the publication, “this report continues the NCHRP’s practice of keeping departments up-to-date on laws that will affect their operations.”
The goal of the report was to provide a “useful tool for transportation agencies that are planning design-build procurements, drafting procurement and contract documents, administering contracts, and litigating tort, construction, and acquisition claims.”
According to the report, “the digest-
• Discusses case law relevant to design liability, particularly in design-build contracts, including the extent to which a high level of pre-contract design and a high level of discretion regarding design decisions or project acceptance may affect an agency’s ability to transfer design liability.
• Provides examples of contract language relevant to design liability (including performance standards, indemnification provisions, insurance requirements, warranties, disclaimers regarding design furnished by the project owner, and language making it clear that approval of the design by the owner does not affect the design-builder’s liability).
• Provides information about state laws relevant to liability and indemnity for design–build projects, including laws regarding design immunity and statutes of limitation and repose.
• Addresses the extent to which design-build procedures and deadlines, including design changes, impact the acquisition of right-of-way and condemnation proceedings.”
Among many other achievements and contributions to DBIA, Loulakis led the production of DBIA’s series of Design-Build Done Right Best Practices and is the winner of the DBIA Brunelleschi Lifetime Achievement Award. Smith is a Partner at Nossaman LLP, advises DBIA on various legislative initiatives and is the winner of a DBIA Distinguished Design-Build Leadership Award.
If you are interested in reading more, the full report can be found here.