I. History
and Introduction.
A. What Is Bridging?
On most design-build projects, the
architect or engineer works
eithereither
works in-house for the
contractor, or serves in a subservient role as a subcontractor. In still other cases, the design professional
leads the design-build team by holding the prime contract or acts as a joint
venture partner. With any of these forms
of delivery, the project owner does not have what it considers an “independent”
design professional watching out for the owner’s interests. Designers and contractors complain that in a
design-build competition, the cost of preparing designs sufficient to submit
cost proposals often prevents otherwise qualified teams from participating. . To solve both problems some owners
(especially in the public sector) retain an independent design consultant to
prepare a preliminary design, then prepare outline specifications, assist with
the RPF and selection process, and even stay on board during the construction
phase to review pay applications, inspect the work and certify the completion
date. . “Bridging” is the name given to this
process. A graphic depiction of bridging
is shown in figure A, below.
As shown below, the owner hires a design
consultant (the “Design Criteria Consultant”) to) to prepare design documents, usually to a level of no more than
30% complete. Those schematic design
documents are then used to obtain competitive proposals from design-build
teams. The successful team will include
architects and engineers who will complete the technical drawings with the
remaining 70% of information needed for construction. Since the design is often already laid out by
the owner’s consultant, some refer to the successor’s role as “Draw-Build,” in
that the design is already set and all that is left for the design-build team
is to “draw it.” The Design-Build
Institute of America (DBIA) sometimes refers to this method of delivery as “Design/Design-Build”
or two other equally awkward names “Design-Build/Bid” and “Design-Draw/Build”.[1] Still others call the role of the owner’s
design consultant “A/E-1.”
In the most common forms of bridging, the
owner’s design consultant remains as the owner’s representative to provide
limited construction administration services, including final inspections and
close out of the project, acting in the traditional role of the architect or
engineer. The owner’s consultant may
function as a neutral in resolving disputes and in passing judgment on the
quality of work.
Figure A.
The Bridging Concept
1. Origins
and Brief History
The term “bridging”
was conceived by George Heery, FAIA, formerly of Heery International, now a
principal of The Brookwood Group in Atlanta, Georgia. But the concept of one design professional
completing a design started by another is not new and has ancient roots. . Bridging goes back to the days of pharaohs
and pyramids, when due to a shorter human life span and the decades it took to
build the great Egyptian and Mayan pyramids, designs started by one person were
completed by another by necessity. . Centuries later, with the Gothic and
Italian Renaissance cathedrals, it was expected that the original designer
would not be the same one to oversee the project’s completion for the same
reason. Italian Renaissance architect Leon Battista Alberti remarked in the 15th
Century that, “The brevity of human life and the scale of the work ensure that
scarcely any large building is ever completed by the same man as begins it.”
Paying homage to the original designer’s intent, Alberti continued, “I feel
that the original intentions of the author, the product of mature reflection,
must be upheld.” [2]
A good example of
this is the great red-tiled cathedral in Florence, Santa Maria del Fiore, whose
original design was the combined work of architect Giovanni di Lapo Ghini and a
competing master mason, Neri di Fioravanti. The two designers built huge scale
models of their building designs in 1366.
The Fioravanti design was chosen in 1367, with its unprecedented 143
foot wide dome. [3] His model alone was
15 feet high and 30 feet long. The great cathedral took decades to construct
and each year the cathedral’s architects and wardens were required to place
their hands on a copy of the Bible and swear an oath that they would build the
church exactly as Fioravanti’s model portrayed it.[4] The project was later completed by yet another
master-builder, Fillipo Brunelleschi, whose model won the competition in 1418
to complete the cupola (or dome) and a later competition in 1436 for the
lantern on top of the dome. So while
many credit Brunelleschi as the “architect of record” for the Florence
Cathedral, it was Fioravanti whose elaborate set of
“bridging” documents – his huge model - outlined the overall design for the
structure and dome, while Brunelleschi merely engineered and finished the great
dome as a successor architect.
In modern-day design-build, the role of the
owner’s consultant is written into the laws of many states. The AIA, EJCDC and DBIA all publish form
contracts to be used in hiring an owner’s consultant to represent and assist
the owner, including the preparation of a preliminary design. [5] The concept has its fans and critics, like
anything else.
I. The
Basics
A. What
is Bridging?
1. Origins2
. Industry Definitions
The AIA and AGC defined bridging in a joint
1995 publication like this:
“Bridging is a hybrid of the traditional
design-bid-build process and design-build. An owner selects an AE to develop a
project design through design development (approximately 30 percent - 50
percent of the design work), and prepares scope of work documents which form
the basis for competitive selection of the project delivery team. The AE
specifies the project’s functional and aesthetic requirements but leaves the
details of construction technology up to the contractor. Construction
technology is specified with performance specifications. The project delivery team then has
single-point responsibility for final design and constructing the project.”[6]
3. The Canadian View
The concept of bridging has crept across
the border into Canada. The Canadian Design-Build Institute (CDBI) defines
“Bridging Consultant” in its Practice Manual as, “An individual or firm
employed or engaged by an owner to develop a design to an advanced stage
whereby the design-builder’s role is reduced to completing the construction
documents and construction (see Draw-Build).”[7]
The CDBI Practice Manual defines “Bridging” as, “A form of design-build
delivery whereby the owner enters sequentially into two separate contracts. The
first contract is with a Bridging Consultant who prepares preliminary and
developed designs. The second is with a draw-builder who completes (and assumes
responsibility for the design prepared by the Bridging Consultant) the
construction documents and builds and delivers the project.”[8]
The CDBI plainly sees the role of the
design-build contractor as merely drawing up the design prepared by the
Bridging Consultant, calling this form of project delivery “Draw-Build,” while
assuming full liability for the design prepared by the Bridging
Consultant.
4. Design Criteria Consultants
States that have fully developed
design-build statutes or regulations often write the role of the bridge firm
into the law. Florida was the first to
do so with its “Consultants’ Competitive Negotiation Act.” [9] Under the Florida Act, a “design
criteria professional” is selected to prepare a “design criteria package” used
toused
to furnish sufficient
information to permit designpermit design-build firmsbuild firms to prepare a bid or a response to a Request for
Proposal. The design criteria package is
to include:
“performance-based criteria for the public
construction project, including the legal description of the site, survey information
concerning the site, interior space requirements, material quality standards,
schematic layouts and conceptual design criteria of the project, cost or budget
estimates, design and construction schedules, site development requirements,
provisions for utilities, stormwater retention and disposal, and parking
requirements applicable to the projectstormwater.”
Under the Florida Act, the design criteria
professional must be abe a firm that has a current certificate of registration to
practice architecture or engineering.
The firm is selected using a qualifications-based process similarprocess similar to the procedures used to hire design
professionals for state work. In determining whether a firm is qualified, the
agency is to consider such factors as the ability of professional personnel;
whether a firm is a certified minoritycertified minority business enterprise; past performance;
willingness to meet time and budget requirements; location; recent, current,
and projected workloads of the firms; and the volume of work previously awarded
to each firm by the agency, with the object of effecting an equitable
distribution of contracts among qualified firms. Some other states that have written the role
of design criteria consultant into their procurement laws are Nebraska, South
Dakota and West Virginia (all of which call this role “performance-criteria
developercriteria developer”). [10]
5. Mini-Bridging
A variation used by some design firms who
lead design-build projects has been called “mini-bridging.” In this model, the design-builder hires
trusted engineering consultants to prepare design criteria and performance
specifications. Those preliminary
designs are then given to trade subcontractors who act as design-build
subcontractors for their respective portions of the project, e.g. mechanical,
electrical or even structural components.
The appeal of this model is that the design-builder can select trusted
engineering consultants to prepare design criteria that will meet the project
needs. This gives a comfort level when working with design-build trade
subcontractors in whom the design-builder does not have complete
confidence. The trade subcontractors
must prepare designs that meet the specified performance criteria.
B. Pros and Cons of Bridging?
1. Con’s
of Bridging. The
detractors of bridging discourages this method of
procurement, stating that it,it eliminates many of the advantages inherent in true
design-build. For example, DBIA’s
primary argument against bridging is that the real advantages of design-build
are lost when the design is merely handed to the team at a 30% level of
completion. Among DBIA’s criticisms of
bridging are:
1. That
this method precludes the design-build team from any significant creativity and
innovation, since basic solutions and concepts are determined before the
design-build team begins.
2. Work
performed in the first phase determines many of the design and functional
aspects of the project for which the phase two team has to take responsibility
(and liability), without any real input, leading for greater potential for
disputes.
3. True
design-build permits fast-track construction with the ability to procure long
lead time items and begin field operations well before a project is at the 35%
point of design.
When more than 30% of the design is
provided in the RFP, the selection of the design-build team tends to be more price oriented since the design is already set. In those
cases, there is often less emphasis on qualifications-based selection. DBIA
urges selection of design-build teams based on a combination of qualifications
and price, but feels that under “bridging” or “design/design-build” the
selection is based solely on the basis of low price. Case studies of actual public sector projects
would show otherwise, since bridging is regularly used in public procurement,
yet qualifications of the design team remain a large portion of the selection
criteria.
The level of design done by a bridging
consultant varies. In the best uses of bridging, there is a great amount of
design left up to the design-builder, who can be innovative in developing the
design. When all that is left is to draw up the plans, however, the real value
of design-build is lost. The level of
completeness of bridging documents is an open debate and is often
project-driven. One study by the New
York State Department of Transportation in September 2002 reported the
following ranges of designs included in procurement packages for highway and
other project types: [11]
5% to 15% Alameda Corridor Transportation Authority
10% Florida
DOT
10% to 20% Arizona DOT
10% to 40% Ohio DOT
15% Utah
DOT
20% Atlantic
City/Brigantine Connector (New Jersey DOT)
30% Utah
Transit Authority (light rail project)
30% to 40% Washington State DOT
35% initially NAVFAC (NAVFAC (now ranges 15% to 35% depending on project complexity)
35% Transportation
Corridor Agencies (Eastern)
35% Transportation
Corridor Agencies (Glenwood)
35% Transportation
Corridor Agencies (San Joaquin)
2. Pro’s
of Bridging. On
the “Pro” side, corporate owners have been downsizing in-house construction
staffs and outsourcing more of those functions.
With design-build, where the project’s program and design-build
selection are important to success, owners need help because they have more
responsibility for defining and procuring than in traditional construction
where an A/E firm traditionally helps with programming and contractor
selection. This presents opportunities
for a new type of owner-consultant, such as program managers, and even new
roles for traditional design or construction management firms.
Where modest stipends are awarded to the
unsuccessful design-build teams, most would agree that the amount received does
not come anywhere near covering the cost of the actual design competition. If five firms are short-listed, with only one
winning the full design-build contract, the four unsuccessful teams can invest
substantial sums. Only the larger firms
can play that game on a regular basis and write off the uncompensated design
effort. However, with bridging the teams do not have to incur a costly design
fee just to compete, and can use the preliminary design prepared by the
bridging firm. This entices more qualified firms, more often, to participate
when there is no expensive design competition.
Owners are used to having an architect to
discuss the project with, to advise them and to “keep an eye on the
contractor”. Design-build without a
bridge consultant requires a great deal of trust. Some owners are just not
ready for that level of trust and a bridge consultant helps make the transition
to design-build.
3. Bridging
As A Target Market. Bridging
is a target market for some design firms.
The CEO of one large A/E firm in Virginia said in 1999 that his firm’s
main focus is to be an “A/E-1”, handling conceptual design and then acting as
the owner’s agent supervising the design-build team.[12]
With firms targeting this role for their business niche, expect more
competition. Firms will begin to compete
on who is the most qualified “bridge” firm.
While fees for “bridge” architects are
generally less than for traditional full-scope services, there is an attraction
toward this service for at least three reasons.
First, most architects will agree that the “fun” part of architecture is
the design phase. Construction documents
and specifications, the technical side of design, preparing “working drawings”
is the less glamorous aspect. Bridge
architects get to do concept designs, the way architects did in studio in
college, leaving the remaining sticky, technical drawings and detailed
specifications to the design-build team to develop. Second, the bridge architect retains a close
relation to the owner, preserving the role of agent, advisor and trust that is
enjoyed on traditional project delivery.
Last, there is less risk for the bridge firm. Insurance statistics show
that the majority of claims against A/E firms are for design errors or
omissions. With the bridge firm doing only a 30% or so set of schematic or
design development drawings, which are normally not even sealed, it is expected
that the design-build team will prepare the final technical details used for
construction and seal those documents. If there is a design error or omission
in the drawings or specifications, liability will most likely fall on the
design-build team’s architect or engineer who prepared those documents, not on
the bridge firm.
C. Industry Views on Bridging
Up until 2005, the AIA’s official Position
Statement on design-build and bridging recommended that when public agencies
use design-build, they should put out a detailed RFP with “project specific
comprehensive scope of work documents prepared by licensed architects and other
qualified professionals who are retained for the duration of the project.” The AIA also recommended that the
design-build proposals are evaluated by a jury of qualified professionals,
“including those licensed professionals who prepared the scope of work
documents”. AIA recommended that the
design-build entity be required to retain and use the design architect of
record “throughout the duration of the project to maintain design integrity,
functional and technical responsiveness, and to conduct on-site construction
observation.” This is, of course, intended
to make sure that the contractor does not hire an architect only to prepare
construction documents, with no role during constructionduring construction.
The AIA’s official Board Position on alternative delivery was revised in
2005 and no longer takes a position on bridging.
2. Industry Definitions
3. Canada, elsewhere
B. Owners: Pros and Cons Like it.
C. “Mini-Bridging”
Defined and Recommended Applications
D. Industry
Views on “Bridging”
II. Legal Issues in Bridging.II.
A. Selection Laws
In those states with laws governing the
selection of a design-criteria consultant, it is stated that the selection
shall be on qualifications, just like when hiring an architect or
engineer. Once chosen to be the owner’s
consultant, however, many states bar the owner’s consultant from serving on a
design-build team for that same project due to either a conflict of interest,
or an unfair advantage to a design-build team who snatches up the owner’s
confidential advisor.
Several states have laws that prohibit an
architect or engineer from bidding on plans they prepare.[13] South Carolina law bars architects and
engineers who perform design services from performing any work on the same
project as a contractor, either directly or through a business in which the
architect or his firm has “greater than a five percent interest”.[14]
The intent of such laws is to prevent an unfair competitive advantage to the
firm most familiar with the design. It would certainly defeat the purpose of
having an “independent” architect/engineer if the bridge firm could prepare the
design criteria package and then link up with one of the design-build teams
competing for the project. The better
approach is to bar the bridge firm from participating on any of the
design-build teams.
Florida’s
“Consultants’ Competitive Negotiation Act”,
Fla. Stat. § 287.055, makes it clear that, “A design criteria professional who has been selected
to prepare the design criteria package is not eligible to render services under
a design-build contract
executed pursuant to the design criteria package.” Likewise, South
Dakota procurement law states that, “The performance criteria developer may not
submit a proposal to enter into the design-build contract and the
design-builder may not delegate or contract services under the design-build contract
to the performance criteria developer.” [15] West Virginia says the performance
criteria developer is “disqualified” from submitting a proposal and no
design-builder may delegate services to the performance criteria developer. [16]
At least one Federal case has ruled that in
this situation, the bridge firm cannot be part of a contractor’s design-build
team.[17] The court ruled that Federal Acquisition
Regulations (FAR) barred such participation and that with the bridging
consultant’s participation, that team would have an unfair competitive
advantage and an “organizational conflict of interest”. The case hinged, in part, on a Federal
regulation, FAR part 9.505-2. That
regulation stated that, “If a contractor prepares, or assists in preparing, a
work statement to be used in competitively acquiring a system or services -- or
provides material leading directly, predictably, and without delay to such a
work statement -- that contractor may not supply the system, major components
of the system or the services [with certain exceptions]”.
B. Conflicts of Interest
The current AIA Code states:
“E.S. 3.2 Conflict of Interest: Members should
avoid conflicts of interest in their professional practices and fully disclose
all unavoidable conflicts as they arise.
Rule 3.201 A Member shall not render professional
services if the Member’s professional judgment could be affected by responsibilities to another project or
person, or by the Member’s own interests, unless all those who rely on the
Member’s judgment consent after full disclosure.”
Refer also to the NSPE Code of Ethics
for Engineers, Rule II. 4.a (July 1996) which
requires disclosure of all known or potential conflicts of interest that “could
influence or appear to influence” the engineer’s judgment. Conflicts of interest are the most common ethical issue in
design-build, so much so that federal regulations discuss this topic. The
regulations published by the Department of Transportation’s Federal Highway
Administration in December 2002, (67 Fed. Reg. 75902), show that significant
thought was given to the issue of organizational conflicts of interest. The
final rules state in 23 C.F.R. §§ 636.116 to 636.118 that policies on conflicts
of interest should be stated in the RFQ or RFP, including that consultants who
assist the owner in preparing the RFP will not be allowed to participate on a
design-build team, unless involvement was at a “low level”.
FAR 9.502 states that an “organizational
conflict of interest” may result when there are factors which create “an actual
or potential conflict of interest on an instant contract, or when the nature of
the work to be performed on the instant contract creates an actual or potential
conflict of interest on a future acquisition.”[18] Participating on a competing team may give
that team an advantage in terms of qualifications since no other team could
match the level of familiarity that the developer of the scope of work would
have with the project. It would also
effectively prohibit the owner from using that same design consultant for
construction administration services during construction.
C. Spearin Doctrine and
Bridging
Bridging
adds a new twist to the proper role of the Spearin[19]
doctrine in resolving the dispute. As the educated construction lawyer
knows, the Spearin doctrine holds, generally, that when the owner
furnishes detailed specifications to a contractor, the owner is deemed to impliedly
warrant that those plans and specifications are accurate and suitable for
their intended use. The Spearin
case held that, “if the contractor is bound to build according to plans and
specifications prepared by the owner, the contractor will not be responsible
for the consequences of defects in the plans and specifications.” [20] How does bridging change this doctrine? The
answer depends on the level of design detail provided by the owner’s
consultant, and the amount of design discretion given to the design-build team.
As noted by the Veterans Administration
Board of Contract Appeals in one case:
A properly written and administered design build contract
transfers the risk of design and sufficiencies from the VA to the design
builder. The owner is shielded when the
design results in cost over-runs or does not work. M.A. Mortenson, ASBCA No. 39978, 93-3BCA, ¶ 26,
189. . . .Specifications
included in a design-build contract, however, to the extent that specific
requirements, quantities, and sizes are set forth in the specifications, place
the risk of design deficiencies on the owner.
[21]
When the owner elects to substitute its
discretion for that of the design-builder by providing detailed specifications
via its bridging consultant, the owner should expect to carry the risk that
comes with that substituted discretion, under traditional Spearin
concepts. If the owner, in its effort to
provide the design-builder a better idea of exactly what the owner seeks from
the scope of work, provides erroneous or faulty information, the owner can be
expected to bear liability under an implied warranty as with “traditional”
project delivery.
D. Performance vs. Prescriptive Specs
In the 2002 New York DOT study, a number of
state agencies surveyed indicated their preference for performance
specifications where possible on design-build projects, but almost all of the
agencies relied on prescriptive specifications for significant portions of the
project. [22] This can create a mixed bag of legal
issues to sort out on public design-build projects when both types of
specifications are included in the bridging documents.
Performance Specifications describe
an end result, an objective or standard to be achieved, and leave the
determination of how to reach the result to the contractor. [23] By contrast, Design or Prescriptive
Specifications set forth in detail the materials to be employed and the
manner in which the work is to be performed, and absent special circumstance,
the contractor is required to follow them as one would a road map and without
deviation.[24] It is not uncommon for a contract to contain
both design and performance characteristics, and certainly
one can find numerous government contracts exhibiting both performance and
design specifications. Therefore, some forethought needs to be given into the
level of detail contained in a set of bridging documents. The more detail and
prescription given to the design-build team by the owner, the more likely the
owner will be deemed to warrant the adequacy of its documents.
E. Ownership and Copyrights
The bridging consultant certainly is aware
that another design professional will use its preliminary design to complete
the project. Therefore, it is without saying that a firm serving as owner’s
design consultant must authorize the successful design-build team to copy and
use its design. However, the bridging
consultant may wish to restrict the use of the design to this one and only
project, so that a successful design could be used again under control of the
bridging professional.
AIA’s B142, Owner-Consultant
Agreement (2004 edition), says in Paragraph 3.2.1 that, “Drawings,
specifications, and other documents, including those in electronic form,
prepared by the Consultant and its sub-consultants are Instruments of Service
for use solely with respect to the Project. The Consultant and its
sub-consultants shall be deemed the authors and owners of their respective
Instruments of Service and shall retain all common law, statutory and other
reserved rights, including copyrights.”
The consultant grants the owner only a license to reproduce and use the
documents in connection with the one Project, “including the Project's
further development by the Owner and others retained by the Owner for such
purposes, including the Design-Builder and the Design-Builder’s design
professionals.” The license extends
specifically to the design-builder and it design professionals.
F. Who Is The A/E of Record?
It will be interesting to see how design
professionals handle the credit for projects in which one firm does preliminary design and another serves as the
design-build team’s architect. Many of
the AIA ethical complaints relate to one firm not giving proper credit to
another firm when both play a role in the project. This comes up in awards
competitions, in marketing brochures and in subsequent head-to-head competition
and interviews. Two firms showing the
same project in their qualification statement and brochures will confuse owners
and hurt credibility. There is also the conflict as to who is the “architect of
record” or “engineer of record” for the project. These labels, which have no legal meaning nor definition in standard contracts, often
cause confusion when multiple firms are involved. Who is the true project “architect” on a
project in which one firm does the bridge package and another firm does the
remaining 70% or so of the design work?
The AIA’s ethical Rule 4.201 requires
members to “accurately state the scope and nature of their responsibilities in
connection with work for which they are claiming credit.” The official commentary to this Rule says
that the intent is to prevent members from claiming credit for work they did
not do and “denying other participants in a project their proper share of
credit.” Seven of the AIA’s ethics
decisions between 1987 and 1992 dealt with the giving or taking of credit for
work. With bridging injecting two design
firms into a project, we can expect more ethics complaints unless firms come up
with a way to credit a competing firm with their role as either bridge
architect or project architect or some other terminology.
Documentation:
A. AIA, DBIA, AGC, others
B. Custom
Documents
III. State Laws on Design Criteria
Consultants.
A. Similarities
B. Differences
IV. How to Select Bridging Firms.
A. Selection
Criteria; Procedures
B. Who
Can Qualify?
V. Negotiating Bridging Arrangement
A. Owner’s
Perspective
B. Design Perspectives
C. Construction
Perspective
D. Recommended Practices and Pointers
Designed to Achieve Successful Projects.
1. When Bridging Goes Too Far.
2. Amount of Information Provided
VI. Liability of the Bridging Firm.
A. Liability
of Owner; Spearin Doctine
B. Insurance Coverage and Risk Allocation
VII. Bridge Firms Participation on Design-Build
Teams.
A. Unfair
Competitive Advantage
B. Projects
That Change Delivery Mode
C. State
and Federal Laws
D. Case
Law
VIII. Acting as Neutral
IX. Ethical Issues.
A. Conflicts
of Interest
B. Tainting
of Bidders; Prior Relationship
C. A/E
of Record
D. Selection
Committee III. Risk
Assessment and Contractual Solutions From the Perspective of the Design Consultant for a
Construction Project Using Bridging-Design-Build Procurement
A.
Introduction and Background –
Setting the Stage
The
managing principal of one of your design professional clients just called to
engage you to assist it in the negotiation and drafting of its contract for a
new project. You have represented the
client for many years, but you have no prior knowledge about this particular
project. The client is excited because
it was chosen to provide the design for this unique, world-class project.
The
client informs you that it is a large “bridging-design-build project”. The Client has been selected as the prime
design professional for the Owner and will be called the “Bridging-Design ConsultantBridging Design Criteria Consultant”.
The owner is a governmental entity and will use some form of bonds or
certificates of participation to finance the Project.
She
tells you that the firm’s scope of work for the Project is subject to
clarification during the contract negotiation process but generally will
consist of and include: