[co-authors: Richard Foltz Jr., Meghan Harrison, Jennifer Flynn, Robert McCue P.E.]
Evolving, expanding, and enduring—the field of construction is consistently changing to meet demanding challenges. One of the ways these challenges are being met is the development of concepts of design assist and delegated design to more efficiently include the latest and most sophisticated building technology. This article strives to understand how construction has changed with respect to design and its delegation, to examine the present state of the industry and its limitations, and to propose recommendations for the future.
Master builders were the keystone of building projects during the Middle Ages and Renaissance.1 They were overall designers with expertise in aesthetic and structural issues.2 For them, “the structural form, strength and stability, and architectural expression were inseparable and complemented each other."3 With wide-ranging skills and a broad knowledge base, “their combined understanding of the technical and aesthetic issues involved in the production of structural form . . . have few equals today.”4
Present-day designers are highly specialized. Teams of professionals work on complex structures because one architect or engineer generally does not have the full range of expertise to be the sole project designer.5 Communication between the architects, engineers, contractors, suppliers, and manufacturers is key. “An architect may have an ingenious design concept, but unless it is developed into a technically viable scheme, the results could be disastrous.”6 From the beginning stages of the design process, it is important for the architect, engineer, and specialty vendors to explore design options and work together.7
The architect, who is unconcerned with technical issues, has a right, perhaps even a duty to innovate, experiment and challenge convention. The engineer on the other hand, with responsibility for the adequacy of the structure, must build on certain foundations. If the engineer wishes to develop and extend structural concepts beyond what is known to be possible, it is vital that he or she understands at a fundamental level why similar structural forms in the past did or did not work, and ensures that enough careful thought has gone into the consequences of proposing something different.8
Construction projects, from power plants to office spaces to sports arenas, continue to become more intricate due to new materials, processes, and evolving regulations and codes. Concurrent with the increasing complexity of construction projects over the past several decades, design and risk allocation methods like Delegated Design and design assist have been employed to utilize unique expertise more efficiently. Delegated design is “a form of collaboration between a design professional and contractor where the contractor assumes responsibility for an element or portion of the design.”9 Design assist is “a form of collaboration where a contractor provides information to assist a design professional’s design, typically before pricing for the work has been agreed upon or before the work has been awarded.”10
This article examines the past, present, and future of benefit and risk allocation in construction arising from delegated design and design assist. Part I surveys legal scholarship on design assist and delegated design. Part II surveys industry publications and forms that developed to allocate benefits and risk. Part III reviews recent design assist and delegated design cases. Part IV anticipates and discusses future trends and recommendations.
I. Legal Survey of Design Assist and Delegated Design
Project Delivery Methods
To handle complex construction projects, different project delivery methods have been developed to allocate the roles and responsibilities of project parties. Design-bid-build, design-build, and engineer, procure, construct (EPC) are delivery methods that meet specific needs of owners, contractors, and designers.
Design-bid-build is a traditional method where the owner retains an architect and contractor separately.11 During the early 1900s, design-bid-build became the dominant project delivery method in the United States.12 While there are different variations of design-bid-build, a contractor is typically hired through a bidding process.13 Advantages to this project delivery method include established precedent, clarity of the parties’ roles, potentially lower overall cost resulting from competitive bidding, more owner control of the end product, and checks and balances on designers and contractors because their respective contracts are separated.14 However, there are also disadvantages. The “owner bears the risk of deficiencies in the design documents—whether those deficiencies are errors, omissions of necessary features or information, or lack of clarity.”15 Additionally, the project may take longer to complete, lack input into the constructability of the design, and create an adversarial atmosphere between the parties instead of a collaborative one.16
In contrast, design-build and EPC are project delivery methods where the owner enters into a contract with one entity that is responsible for designing and building the project.17 Ideally, owners relinquish control over the details of the design and are able to take advantage of a design builder’s innovations in the design and logistics of carrying out the overall project.18 When this occurs, the liability for design deficiencies shifts from the owner to the design builder.19 In practice, owners are reluctant to give up control.20 “[E]ven though a contract document specifies that it is ‘design-build,’ to what degree the responsibility and liability for design deficiencies is actually shifted from the owner to the design-builder depends on the specifics of the transaction.”21 Advantages of design-build include improved coordination and communication between the parties, cost savings through fast tracking projects, expert knowledge on elements of the project, and more opportunities for connecting construction and design expertise during the design phase.22
Progressive Design-Build
One application of design-build is progressive design-build, the application of which has increased in response to costly litigation stemming from traditional design-build.23 Progressive design-build differs from traditional design build in the stepped, or progressive, process that it employs during procurement.24 It uses a “qualifications-based” or “best value” selection followed by a progressive process whereby the project owner moves toward a design and contract price with the design team.25 The qualifications-based selection permits a bidder to abstain from submitting a project bid until a certain completion threshold is reached on the project design.26 This arrangement permits a project owner to transfer risk that would traditionally be allocated to them onto the designer, making progressive design-build potentially more attractive to owners.27
Regulation of the Design Process by States
The design process is heavily regulated in most states and/or localities. For example, New York City requires that certain public projects have different design contracts for general construction, plumbing, electrical work, and heating and ventilation.28 Many regulations were the result of catastrophic disasters. In Florida, strict building codes were put in place after a disastrous hurricane. California has issued specific guidance for development projects due to the increase in major wildfires over the past decade. Because of these complex challenges facing project designers, licensing is required.
State authorities have greater trust in licensed professionals’ efficacy because of the substantial training such professionals have undergone. This is one of the reasons an architect or engineer’s stamp is required on shop drawings. The AIA defines shop drawings as “drawings, diagrams, schedules, and other data specifically prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work.”29 These documents undergo an intensive review process and indicate how work should be performed.30 Shop drawings are usually prepared by a subcontractor or a fabricator. Then, the general contractor or construction manager reviews the documents to ensure they “identify constructability issues and any coordination that will be required among other trades.”31
Stamps on shop drawings show that the designer oversaw the design work and that the designer takes responsibility for the work and some of its liabilities.32 Architects and engineers “can be held personally responsible if the design were to endanger any occupants.”33 Because it ensures that design professionals have oversight, state governments require a stamp.
As the world changes, construction and state regulation evolve to meet the demanding challenges. While the construction industry has nationwide and even worldwide scope, the regulation of project design is a matter of state law. An analysis of the regulatory schemes currently in effect in some of the more populated states follows.
Example: New York
The unauthorized practice of architecture is a crime in New York. “It is a Class E felony for anyone not authorized to practice, to offer to practice, or to hold themselves out as being able to practice in any profession in which a license is a prerequisite to practice.”34 New York Department of Education law states that “[o]nly a person licensed or otherwise authorized to practice under this article shall practice architecture or use the title ‘architect.”35 New York requires that architects must stamp shop drawings and specifications they prepare with their own seal. Designs without a stamp will not be approved.36 However, there are exemptions to the license requirement. New York issues limited permits to nonresident architects for some projects. The state also exempts people working under the supervision of a licensed architect and professionals who do not hold themselves out as architects, even if their job requires some architectural
duties.37
New York City is not known for design-build contracts, at least for public projects. There is concern that design-build “violates the state Department of Education laws, which prevent the unlicensed practice of design services.”38 In 2020, however, the New York City Public Works Investment Act [the Act] was signed into law.39 The law allows certain city agencies to use design-build contracts for projects. To stave off concern, licensed professionals must stamp all design-related documents under the Act.40 Agencies with design-build contracts must submit an annual report. The reports must include “a description of the contract, information about the bidding process, the total cost, how much money the agency/department saved by using design-build and how much of the contract went to minority- and women-owned businesses.”41
Example: Pennsylvania
The Pennsylvania Procurement Code allows state institutions to use design-build project delivery for public projects. However, Pennsylvania also “requires [public owners] to use a multiple-prime project delivery system and each of these prime construction contracts must be competitively bid.”42 This requirement comes from the Separations Act, which has been law since 1913. “[T]he Separations Act is a major impediment to public entities that want to utilize design-build or engineer-procure-construct (EPC) project delivery models.”43 This effectively eliminates design-build as a potential project delivery method for any public project since the project threshold is $4,000.44 “Pennsylvania seems to be the lone remaining state requiring separate contracts for each portion of a public building contract.”45
“The Pennsylvania Uniform Construction Code regulates the codes and standards of building projects in the Commonwealth.”46 Ninety percent of state municipalities enforce the code locally.47 However, the Pennsylvania Department of Labor and Industry enforces the code in municipalities that opted out.48 “Architects are professionally trained and ultimately licensed by the Commonwealth to apply the building codes during the design process to a variety of construction projects.”49 All architecture firms must be licensed. “If you are providing architectural services, and you do not own and are not employed by a registered architectural firm, you must register for a sole-proprietor firm license.”50 There are penalties for “the practice of architecture without holding a currently valid certificate.”51 For a first offense, imprisonment not exceeding 90 days, fines of $500 or lower, or both are penalties.52 Subsequent offenses are considered misdemeanors.53 They are punishable with fines between $2,000 and $5,000, with imprisonment between one and two years, or with both fines and imprisonment.54
Example: Florida
In Florida, hurricanes were the catalyst for transforming design regulation. In 1992, Hurricane Andrew, a category-5 hurricane, hit the state. “Hurricane Andrew revealed loopholes in the building code and exposed the lax enforcement that had been going on for many years.”55 Over 25,000 homes were destroyed and 65 people died. Miami-Dade County was especially hard-hit due to “poor design, shoddy construction and inadequate inspection.”56 This led Florida to create tough “storm-specific building codes.”57
Architects must be licensed to practice architecture.58 Permits are necessary to construct, erect, alter, modify, repair, or demolish a building.59 Where there are permits, inspections and code compliance are needed. Florida localities may have their own licensing requirements that vary in different areas.
Example: California
The California Design-Build Consolidation Bill (SB 785) “allows those state and local agencies who were previously under various, different design-build laws to navigate under a single statute with better provisions.”60 In California, the Building Design Authority regulates the types of buildings that professionals can design. The Authority created a hierarchy: Structural engineers can design most any building type, but civil engineers cannot design public schools and hospitals. Architects may not design “the structural portion of a hospital,” but all other types of buildings are allowed. Unlicensed individuals may design storefronts, fixtures, interior additions, garages, agricultural buildings, as well as “single-family dwellings of not more than two stories and basement in height.”61
Similar to other states, California requires that architects be licensed. It is a misdemeanor to practice without a license, use terms confusingly similar to “architect,” use a licensed architect’s stamp, or advertise in a way that indicates to the public the person is an architect.62 These types of misdemeanors are punishable by a fine of between $100 and $5,000, by “imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.”63 Employees of licensed architects are exempt when they are acting within the scope of their employment.64
In October 2022, the California Attorney General “issue[d] guidance with best practices and mitigation measures for local governments considering approval of development projects in fire-prone areas.”65 Like Florida, California has struggled with natural disasters. In the past decade, eight of the largest California wildfires in history have occurred.66 While wildfires used to be caused by lightning, the most recent fires were the result of human activity. “Since 2010, wildfires have killed nearly 150 people in California, and since 2005, wildfires have destroyed over 97,000 structures, requiring mass evacuations and exacerbating California’s housing crisis.”67 The guidelines are intended to “help local governments design development projects in a way that minimizes impacts to wildfire ignition, emergency access, and evacuation, and protect California’s residents and the environment.”68
Collaboration Strategies: The Importance of Design Assist and Delegated Design
Collaboration strategies, like working with specialty contractors during the design and planning phases, allow valuable input from specialists on “the constructability of the design, sequencing of the work, and estimation of the project costs.”69 A recent survey found that 84 percent of all respondents, including, among others, owners, contractors, and designers, indicated that design-build increased collaboration and creativity during the construction process.70 When specialist vendors and practitioners are consulted in the early phases of a project, problems that normally arise after construction starts can be avoided.71 Collaboration strategies are typically used in the selection and design of mechanical systems, control systems, security systems, retaining walls, curtain wall assemblies, and structural steel.72
This article focuses on two current collaboration strategies: design assist and delegated design. “The key points of distinction between these collaboration strategies are (1) whether the contractor is merely providing input to influence a design or is taking contractual responsibility for a portion of the design itself, (2) the nature and timing of contractor involvement, and (3) the degree of liability that flows from the contractor’s involvement.”73
As previously stated, design assist is “a form of collaboration where a contractor [or specialty vendor] provides information to assist a design professional’s design.”74 As the design is developed, architects, engineers, vendors, or contractors can suggest modifications or alternatives. “Design assist is an emerging twist on modern project delivery methods, where the owner engages the construction team . . . during the early design phase to collaborate with the architect and engineer during the preparation of construction documents.”75 Design assist shines brightest where “the nature of the project is such that early engagement of the construction team, particularly specialty trades, in the design process can be most beneficial.”76
Potential benefits of design assist include reduced project time and costs for construction, improved constructability, enhanced operability and maintainability due to collaboration, and added value due to the expertise of the prime contractor and key trade subcontractors.77 While design assist has many benefits, there are also risks involved with this strategy. Consulting design professionals can be liable for potential design errors and omissions resulting from the collaboration with the contractor and specialty vendors.78 In some situations, the collaboration can bar the party responsible for the design from making design-error-related claims. While time and costs may be reduced during construction, design assist can increase costs and time during the design phase.79 Selecting contractors, paying them for their design assist services, and collaborating with them on the design process add time and increase costs.
In contrast, delegated design transfers “design responsibility for an element or component of a project to a party other than the Design Professional of Record.” 80 This allows specialists in certain fields to design components of a project using the most current technology. The delegated designers must adhere to the design professional’s specifications for the intent of the delegated design.81
Whether it is a fire alarm system or a curtain wall, such components are complex and evolve rapidly, similar to the technology cycle of computer systems. Delegated design allows experts to design specialized components of a construction project.82 For such complicated portions of projects, experts’ up-to-date knowledge is invaluable.83 Among other things, such knowledge can help lower costs during the project’s construction phase and add value over the life cycle of the project.84
However, there are risks that must be considered. Contractors and others can be liable for the design delegated to them. Additionally, those to whom design is delegated have professional responsibilities for the satisfaction of regulatory and code requirements. Owners or the design professional of record may severely limit subcontractors in delegated design. Sometimes delegated designers are brought in for consultation too late in the process. In these instances, performance specifications and other coordinating design aspects guide and limit their work. Space and operability constraints also limit designers’ flexibility to provide the ideal system solution.85
State laws regarding delegated design can also pose complications for the best application of expertise. Even states with robust laws may not have a flexible approach to adopting a comprehensive implementation framework and they may miss details for how “it should work effectively in practice to avoid disputes between the participants.”86
Additional risks related to alternative design delivery arrangements in general are also relevant to the specific strategies of delegated design and design assist. First, since designers only have a limited right to rely on project owners and the information they provide, designers should be cognizant of the risk this limited reliance right imposes on them.87 Second, contracting and subcontracting arrangements in the alternative design delivery context permit project owners to transfer risk downstream if they so choose.88 It is particularly unclear, based on the limited existing case law, who will bear the risk captured in contractual warranty language and whether delegating a portion of a project also delegates the traditional duties a project owner holds.89 Finally, liability caps imposed by owners in the alternative design delivery context increase the amount of risk that project bidders will be subjected to if their bid is selected, which may increase bid amounts to reflect the cost of this additional risk.90
Jurisdiction-Specific Variations in How Delegated Design and Design Assist Are Treated
Many states are addressing delegated design and design assist through regulation and legislation.91 Each jurisdiction varies its approach, and “in some cases, presents potentially irreconcilable inconsistencies with other aspects of the jurisdiction’s regulatory framework.”92 New York, Pennsylvania, Florida, and California’s jurisdiction-specific variations are surveyed.
Example 1: New York
New York has a robust framework for design delegation; however, it is not comprehensive and it does not detail how design delegation should work effectively in practice.93 Under the Delegation Rule, the State Education Department’s Board of Regents exempts some design delegation from being considered “unprofessional conduct” when certain requirements are met.94 These require that the work is done on ancillary components; the “parameters that the design must satisfy are specified in writing by the delegator”; “the design meets performance specifications established by the delegator”; “the delegate is licensed to perform the design work and signs and certifies the design”; “the delegator reviews and approves, in writing, the design for conformance with the established specifications and parameters”; and “the delegator determines, in writing, that the design conforms to the overall project design and can be integrated into the project.”95
For the purposes of the rule, “delegatee” is a licensed and registered design professional “who is employed or retained by the intermediate entity to produce design work in compliance with the performance requirements and parameters specified by a delegator.”96 The contractor is typically the intermediate entity.97 While the statute states a delegatee may be employed or retained, “other aspects of New York law would appear to prohibit the direct employment of the delegate by a contractor.”98 For example, designbuild is generally only allowed “when the project owner, contractor, and design professional sign a threeway contract” and the design services are segregated in the contract.99 The case law shows: Even if a general business corporation employs a licensed professional, it cannot practice a design profession. However, the corporation can “contract with a licensed professional for the performance of the delegated work.”100
• If a contractor violates the licensing laws, its contract could be void. This would prevent the contractor
from recovering under the contract or under a theory of quantum meruit.101
• “[A] contractor’s agreement with an owner was not void (as against New York’s licensing statutes
and public policy) where the agreement provided that the contractor would engage a specified
licensed professional to perform the design aspects of the contract.”102
• A trial court found that the rule does not allow “a general business corporation to practice a design
profession even if it employed licensed professionals.”103
• A contract requirement that mandated architectural design services “be performed by a qualified
licensed” professional prevented the contract from violating New York’s licensing laws.104
• “[A]n electrical contractor was not licensed to perform engineering design work”; however, a
licensed engineer was sufficiently involved in the designs to “satisfy the policy underlying the licensing
statutes.”105
Despite the statutes and numerous cases, delegation procedures remain murky and need to be carefully discussed with an experienced construction attorney before entering into a delegated relationship.
Example 2: Pennsylvania
Design assist has been used in Pennsylvania on several building types. The Center for Healthcare Technology associated with University of Pennsylvania’s hospital, AQ Rittenhouse, and 1430 Walnut Street are all buildings where design assist was used. For the Center for Healthcare Technology, the design assist team helped save $1 million during the preconstruction phase.106 However, “[t]he commonwealth of Pennsylvania does not yet address the term in any of its statutes or case law.”107
Despite this lack of codification, the Bilt-Rite Contractors, Inc. v. The Architectural Studio case sheds light on a design professional’s liability.108 Contractors may rely on the design documents submitted by a design professional and “if the design plans and specifications are defective in a material way, the contractor who relied upon them may sue the design professional, even without a direct contract.”109 While Pennsylvania cases do not address the terms “design assist” or “delegated design,” the state supreme court will allow architects to be sued for economic loss resulting from a breach of their “common law duty of due care.” It is reasonable to assume that persons engaging in design assist or delegated design will also bear responsibility for the foreseeable consequences of their action, including potentially economic loss.
Example 3: Florida
Florida’s Administrative Code has a framework that defines the responsibilities of a Prime Professional Engineer, an Engineer of Record, and a Delegated Engineer of Record.110 However, the framework serves as a guideline for delegation of engineering design when a contractual relationship does not exist. The Prime Professional Engineer retains and coordinates “the services of other professionals needed to complete the contracted-for services.”111 The Engineer of Record has multiple responsibilities: (i) communication of engineering requirements112 and (ii) review of designs to ensure they conform to their intent, they were prepared by an engineer, and they meet the specifications.113 The Engineer of Record can also delegate design responsibility to another engineer. The Delegated Engineer of Record reviews the requirements, “timely contacts the Engineer of Record to resolve the conflicts,” prepares “engineering documents that comply with the written engineering requirements,” and signs and seals the engineering documents.
However, “no engineer shall practice architecture or use the designation ‘architect’ or any term derived therefrom, and no architect shall practice engineering or use the designation ‘engineer’ or any term derived therefrom.”114 Civil and structural engineers may perform architectural services if they are “purely incidental” to their engineering work.115 It is the reverse for architects, inasmuch as they cannot perform engineering services unless those are incidental to their architectural practice.116
Example 4: California
In California, design delegation “may encompass any portion of the work” for public school construction.117 Architects and engineers who have “an employment relationship with a contracting party for the construction” are prohibited from being delegated any of the work.118 Compared to other states, California’s laws are more flexible. Domestic corporations can “furnish architectural services as long as the architectural services are offered and provided under the responsible control of a licensed architect.”119 Similarly, architects can form a business entity or collaborate with nonarchitects, “as long as any architectural services are provided under the responsive control of an architect.”120 It is permissible for contractors to design work they agreed to perform, “as long as those design services are performed by or under the direct supervision of a licensed architect or professional or civil engineer.”121
II. Forms and Form Contracts
History of AIA, ConsensusDocs, and EJCDC
To manage the complexity of construction projects, the American Institute of Architects (AIA) published their first Uniform Contract (a contract between owner and contractor) in 1888.122 The Uniform Contract was created “in response to the rigid, express contractual risk allocation imposed by the legal Doctrine of Sanctity of Contract.”123 The doctrine “allocated almost all construction and completion risks to the contractor, unless the contract expressly stipulated otherwise.”124 This rigidness brought the AIA and the National Association of Builders together to collaborate and create standard construction contracts.125
Over the years, the AIA has become the major provider for standard construction documents, including design contracts.126 Other standard form contract providers include ConsensusDocs and Engineers Joint Contract Documents Committee (EJCDC). “ConsensusDocs was founded in 2007 under the leadership of twenty organizations in the architecture, engineering, and construction (A/E/C) industry.”127 They work to draft documents “that represent all voices from the A/E/C industry.”128 Similarly, EJCDC was founded in 1975.129 Their goal is “to develop and update fair and objective standard documents that represent the latest and best thinking in contractual relations between all parties involved in engineering design and construction projects.”130
Current Forms
The standard contract forms created by the AIA, EJCDC, and ConsensusDocs allow parties to save time and money in crafting from-the-ground-up contract provisions for design and construction. The documents give contracting parties a base from which to build detailed agreements and parties can modify the documents as needed depending on their unique project requirements.
“The AIA regularly revises its documents to take into account recent developments in the construction industry.”131 The AIA has Owner/Contractor Agreements, Owner/Architect Agreements, and many other forms. Their A201-2017 document, General Conditions of the Contract for Construction, “sets the rights, responsibilities, and relationships of the owner, contractor, and architect.”132 This document has been used as an umbrella document for design-bid-build contracts.133 A201-2017 “addresses delegation of design directly and requires a level of specificity as to design and performance criteria, but is vague when defining the boundaries of the delegation.”134
Recently, the AIA specifically created service agreement forms (C403-2021 and C404-2021) to deal with design assist and delegated design.135 For the design assist document, C403-2021, the services agreement “provides guidance and clearly defines contractors’ design assist services and compensation under a written agreement.”136 However, C403-2021 provides flexibility in defining “clients” and “consultants.” It is a form between the client and the consultant. While the consultant is responsible for its piece of the work and working collaboratively with others, the work is based on information provided by the client. It is the client’s responsibility to coordinate the multiple design parties, but the engineer or architect is responsible for overall coordination. The delegated design document, C404-2021, “is a flexible agreement that allows the parties to define the portion of the design that will be performed by the consultant.”137 This form is also between contractor and consultant, but here, the consultant is responsible for coordinating its portion of the work with the overall design. Despite this responsibility, “the primary design professional is still responsible for signing and sealing construction documents and [establishing] design criteria for elements of the design that are delegated.”138
EJCDC C-700 2018 is a similar document to AIA A201-2017 in that it provides standard general conditions for a construction contract. The document details parties’ duties and responsibilities, bonds and insurance, progress and final payments, substantial completion, status of the engineer during construction, subsurface and hidden site conditions, changes in the work, contract price and time, contractor warranties and guarantees, correction or rejection of defective work, work suspension or termination, and dispute resolution.139 Both EJCDC C-700 2018 and AIA A201-2017 are nearly identical in that they present basic risk allocations and responsibilities of the various contracting parties.
To manage a design professional’s risk, a contract needs to clearly state performance and design criteria that the delegated designer must satisfy.140 Architects and engineers should have limited review of delegated design submittals and the level of such review should be specified in the contract.141 Where there is specified limited review, “the design professional should avoid reviewing and commenting on anything not necessary to ascertain the limited purposes of the design professional’s review, as set forth in the General Conditions.”142 AIA and EJCDC express the level of review differently.
AIA A201-2017 § 3.12.10.1 expresses the limits of the architect’s review of delegated design submittals as follows:
[T]he Architect will review and approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given [in the Contract Documents] and the design concept expressed in the Contract Documents.
EJCDC C-700 2018 paragraph 7.19.E is more specific regarding the limits of the engineer’s review of delegated design submittals:
[The] Engineer’s review, approval, and other determinations regarding design drawings, calculations, specifications, certifications, and other Submittals furnished by Contractor pursuant to an Ownerdelegated design will be only for the following limited purposes:
1. Checking for conformance with the requirements of this Paragraph 7.19;
2. Confirming that Contractor (through its design professionals) has used the performance and design criteria specified in the Contract Documents; and
3. Establishing that the design furnished by Contractor is consistent with the design concept expressed in the Contract Documents.143
Like the AIA and EJCDC, ConsensusDocs form agreements “include language relating to the general apportionment of responsibility and the overall process for design delegation between project participants.”144 Specifically, ConsensusDOCS 200—Agreement and General Conditions between Owner and Constructor, Section 3.15 (2017), provides:
DESIGN DELEGATION. If the Contract Documents specify that Constructor is responsible for the design of a particular system or component to be incorporated into the Project, then the Owner shall specify all required performance and design criteria. Constructor shall not be responsible for the adequacy of such performance and design criteria. As required by the Law, Constructor shall procure design services and certifications necessary to satisfactorily complete the Work from a licensed design professional. The signature and seal of Constructor’s design professional shall appear on all drawings, calculations, specifications, certifications, shop drawings, and other submittals related to the Work designed or certified by Constructor’s design professional.145
While the AIA, EJCDC, and ConsensusDocs all provide language for delegated design, the documents are only a general framework. “The essential challenge the industry must overcome to avoid failed endeavors and costly and complicated disputes lies in addressing the specific problems that arise within each unique scope of work.”146
Current Limitations
While design and construction contract forms have developed substantially since 1888, there is room for improvement. Clarity and communication are crucial to the success of construction projects. “The industry should strive for clarity and incorporate that clarity in specifications, contract documents and collaborative processes, specifically tailored to the varied scopes of work that are delegated.”147 However, the AIA A201-2017 vaguely defines the term “delegation.” The definition has been criticized as being “too open to be effective” in allocating risks and defining roles.148
Additionally, as specialization and complexity continue to increase in construction projects, the “designers and the contractors must often rely on specialty trades or products and sometimes in novel and untested ways.”149 The standard allocation of risk in the AIA, EJCDC, and ConsensusDocs forms may not suffice. In those circumstances, “protective clauses and carve-outs should be added to the standard form.”150 AIA documents tend to favor architects over other contractual parties.151
Common mistakes when using standard forms include (i) failing to clearly define the parties’ roles, responsibilities, and contractual relationship; (ii) failing to use subcontractor agreements with compatible language; (iii) modifying standard forms and failing to revise incorporated documents; and (iv) using forms that are not the right fit for the project at issue.152 Standard form contracts offer advantages. They can save time and money.153 While these form contracts offer time and monetary savings, current limitations mandate that parties read the documents carefully within the context of their specific project and adapt the documents as the project requirements evolve.154
III. Recent Design Assist and Delegated Design Cases
Although case law relevant to risk allocation in design collaboration dates back to the late 1990s, case law specific to delegated design and design assist is sparse.155 The common takeaway is that courts will often try to understand and give effect to parties’ intent when analyzing contractual language. There is not yet a standard of care or in-place practice regarding delegated design, so careful review of contract language is necessary to protect clients. The following cases highlight the need for careful review of contracts.
Specific provisions stating the rights of the parties should be included in the contract. In Advancetec, LLC v. Wohlsen Construction Company, a subcontractor argued that it clearly told the contractor its rights to the subcontractor’s design assist deliverables would terminate if the contractor did not hire the subcontractor for the project.156 However, the design assist contract did not include that provision. The court granted the contractor’s motion to dismiss and held that the contract permitted contractor’s use of the Design Assist work and that such use was not contingent on selecting the subcontractor to work on the project. Because the termination provision was not included in the design assist contract, the usage rights did not terminate.
In a different design case, lack of information in preliminary design documents was of no consequence because the fabricator knew the design was incomplete when it bid on the project and agreed to take an active role in finishing the design. In South Florida Stadium, LLC, et al. v. Alberici Constructors, Inc. (d/b/a Hillsdale Fabricators), the project owner and construction manager received a favorable outcome.157 In 2014, the owner of Hard Rock Stadium in Miami Gardens, Florida, engaged a structural steel fabricator to fabricate and install a structural steel canopy over the stadium. The fabricator specialized in large complex structures and touted itself as a “preeminent player” in the steel fabrication and erection arena with substantial Design Assist expertise and capabilities.
The fabricator executed a design assist and delegated design subcontract with the owner’s construction manager. The subcontract price was a lump sum of $77 million. The contract required the fabricator to perform numerous design assist responsibilities and to design and engineer all the steel connections.
To complete the work, the fabricator hired sub-fabricators to perform portions of the steel fabrication work. The fabricator delegated the critical element of the project to a sub-fabricator that failed to deliver its portion of the work on time. This delay led to fabrication resequencing to meet the owner’s deadline, which required completion before the Miami Dolphins 2016 football season.
After finishing its work, the fabricator sought an equitable adjustment to its subcontract for over $100 million, relying on a modified total cost method of pricing; this method, however, was prohibited under the subcontract’s unit price reconciliation and change order provisions.158
In October 2016, the owner and construction manager filed suit for damages and declaratory relief to enforce the subcontract. The fabricator filed a counterclaim, alleging that the preliminary design documents it relied on to bid on the project lacked information, which “forced” the fabricator to infer the design of the connections for which it was responsible. The fabricator also alleged that, as the design developed, the structural steel member sizes increased to achieve a code-compliant design. The fabricator asserted that this resulted in a tonnage increase and associated fabrication and erection costs.
Among other items, the case result focused on the fabricator’s having bid the project with knowledge that the design was incomplete. Despite that, the fabricator agreed to take an active role in completing the design. After one week of a nonjury trial, the lawsuit settled favorably for the owner and construction manager.
Like Hillsdale Fabricators, Conner Bros. Constr. Co., Inc. v. United States concerned a delegated design case where a lack of design detail granted the contractor “a significant amount of discretion in making the system operational.”159 The contractor sought an equitable adjustment on the project based on a contention that design specifications were incorrect. The allegedly incorrect specifications resulted in the mechanical subcontractor incurring $246,000 in additional costs. According to the contractor, the issue stemmed from a failure to coordinate between two drawings: (i) a set of demolition drawings showing the existing ceiling plan prior to demolition and (ii) a second set of drawings that informed bidders of the planned ceiling. The contractor submitted that the lack of detail regarding the location of diffusers and grilles demonstrated that the plans were performance specifications, which accordingly granted the contractor substantial discretion in making the system operational. The court, however, held that the specifications were not “defective” in such a way to entitle payment for changed conditions.
In contrast to the above cases, the court in William Gordon Assoc., Inc. v. Heritage Fellowship United Church of Christ held that the contractor was not liable for the design since the contractor was not required to furnish sealed submittals or shop drawings.160 In Heritage, an engineer had contracted with a church owner to design site plans for a rain tank system. The contractor installed a stormwater system, including the rain tank. Later, the tank collapsed, which delayed the occupancy of the church by several months. The engineer claimed that the contractor was liable for the collapse and resulting delay because of its Delegated Design responsibility for the rain tank. The contractor argued that the engineer’s design was prescriptive, rather than a performance specification, and that the design did not delegate the design obligation to the contractor. The contractor was not required to furnish sealed submittals or shop drawings. The court held that the construction contract did not shift the design liability to the contractor and the flaws in the engineer’s design were the cause of the tank failure.
In 2020, the court in Delaware State University v. Thomas Co., Inc. denied a summary judgment motion because the parties disputed whether certain project elements were part of the “delegated design.” The court found that competing arguments and facts precluded the court from holding, as a matter of law, that the contractor was not delegated design responsibility. Lack of clarity regarding responsibilities led to a longer lawsuit.161
These cases highlight the importance of clearly defining the roles and responsibilities of the parties in the contract. Contractual ambiguity and lack of information can lead to costly litigation.
IV. Recommendations for the Future
Parties to a delegated design or design assist agreement “must clearly set forth the obligations and liabilities of the construction team with respect to the plans and specifications so that there are no unintended consequences.”162 The scope of delegation or assistance, the limitations of that scope, and the required deliverables must be clearly defined and communicated in the contract.163 Vagueness in contractual language leads to confusion about duties and responsibilities, which can ultimately lead to long, expensive lawsuits.
From the beginning stages of the conceptual design process, dividing the design responsibility, coordinating the design intent, and melding the project design are important for efficient coordinated and integrated construction work. Parties should do their due diligence. “[It] is vital to effectively identify[] and address[] the risks associated with incomplete or ambiguous documents.”164 Parties should address all potential issues up front before making agreements.165
V. Conclusion
Construction design is heavily regulated in the United States; however, design assist and delegated design regulation is still in its infancy. Looking at the recent history shows how regulations have developed because of undesirable outcomes and even catastrophic disasters. As the industry and technology changed, construction norms and state regulation evolved to meet the demanding challenges. Providers like the AIA, EJCDC, and ConsensusDocs created standard forms to facilitate drafting provisions and save time and money. The documents are basic starting points and are beneficial, but there are emerging gaps that contracting parties must fill in. Since the scope of the work is unique and project specific, gap-filling allows for needed refinement and flexibility. However, contractual agreements must clearly describe obligations, liabilities, and the scope of the work. Contractual forms will continue to evolve due to the technological obsolescence and the unavoidable complexity of construction projects. Whether design assist and delegated design are chosen as collaborative strategies, the parties must communicate their specific intent. Communication is key to a successful construction project when collaborative strategies are utilized.
*This was republished with permission from American Bar Association. Click here to access the publication.
Endnotes
1. Olga Popovic Larsen & Andy Tyas, Conceptual Structural Design: Bridging the Gap Between Architects and
Engineers 29 (2003), https://www.google.com/books/edition/_/8H2q0KUZeOsC?hl=en&gbpv=1&pg=PA29.
2. Id.
3. Id. at 30.
4. Id. at 35.
5. Id. at 41.
6. Id.
7. Id.
8. Id. at 42.
9. Am. Inst. of Architects (AIA) & Am. Inst. of Steel Constr. (AISC), Delegated Design, Design
Assist, and Informal Involvement—What Does It All Mean? 9 (2020), https://learn.aiacontracts.com/
articles/6319312-delegated-design-design-assist-and-informal-involvement-what-does-it-all-mean/.
10. Id. at 6.
11. Michael T. Callahan, Shared Design: An Overview of Major Project Delivery Methods 3–4 (2011).
12. Id. at 3–5.
13. Allen L. Overcash, Project Delivery Methods: Modern Construction Problems 2–3 (ABA F. on Constr. Indus.,
Toronto, Ont., Can., Sept. 29–30, 2005), https://www.americanbar.org/content/dam/aba/directories/construction_
industry_knowledge_base/keydecision3.pdf.
14. Id.
15. Callahan, supra note 11.
16. Id.
17. Id. at 3–14; see also Edward Seglias, Robert O’Brien & Matthew Skaroff, Nailing Down “Design-Assist”:
Legal Issues in Construction Contracting, The Legal Intelligencer, Aug. 14, 2019 (“‘design-build’ projects allow
owners to contract with a single entity to handle both project design and construction”).
18. Seglias, O’Brien & Skaroff, supra note 17.
19. Id.
20. Id.
21. Id.
22. Overcash, supra note 13.
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23. See Progressive Design-Build a Hot Contracting Topic That’s Gaining Attention, ConsensusDocs (Mar. 7,
2023), https://www.consensusdocs.org/progressive-design-build-a-hot-contracting-topic-thats-gaining-attention/.
24. Design-Build Inst. of Am. (DBIA), Progressive Design-Build: Design-Build Procured with a Progressive Design
& Price 3 (Oct. 2017), https://dbia.org/wp-content/uploads/2018/05/Primer-Progressive-Design-Build.pdf.
25. Constr. Law Today, Episode 14: Design Build Project Delivery, ABA F. on Constr. Law (Nov. 17, 2020), https://
constructionlawtoday.podbean.com/?s=design%20build%20project%20delivery.
26. Id.
27. Id.
28. Id.
29. Am. Inst. of Architects, AIA Document A201-2017, §3.12.1.
30. Christopher P. Caine, Design Professional Liability: Determining Professional Negligence During the Submittal
Review Process (2009) (unpublished M.S. thesis, Pennsylvania State University) (on file with Penn State University
Libraries Electronic Theses and Dissertations for Graduate School).
31. Id. at 10.
32. Tyler Stone, Can an Architect Just Stamp Your Drawings? (No! And Here’s Why), Neumann Monson Architects
(Dec. 20, 2021), https://neumannmonson.com/blog/can-architect-stamp-drawings.
33. Id.; see Duncan v. State Bd. for Architects, Pro. Eng’rs & Land Surveyors, 744 S.W.2d 524 (Mo. Ct. App. 1988)
(A project engineer placed his seal on shop drawings submitted by a steel fabricator. A walkway collapsed, killing
over 100 people and injuring many others. The project engineer was found grossly negligent in his review of the shop
drawings.).
34. Permissible Forms of Practice, N.Y. State Educ. Dep’t (Apr. 15, 2021), https://www.op.nysed.gov/professions/
architecture/professional-practice/permissible-forms-of-practice (quoting sec. B.1.b; N.Y. Educ. Law § 6512).
35. Id. (sec. B.1.a).
36 See N.Y. Educ. Law § 7307.
37. See id. §§ 7305, 7306.
38. Id.
39. Kim Slowey, Gov. Cuomo Signs NYC Design-Build Legislation, CONSTRUCTIONDIVE (Jan. 2, 2020), https://
www.constructiondive.com/news/gov-cuomo-signs-nyc-design-build-legislation/569680/.
40. Id.
41. Id.
42. David A. Scotti, Pennsylvania’s Separations Act: Recognizing and Addressing the Limitations of the Multiple-
Prime Delivery System, Master Builders’ Ass’n of W. Pa., Inc. 1, https://www.mbawpa.org/assets/imports/
PASeparationsActScotti.pdf (last visited Oct. 10, 2022).
43. Michael McKenna, Blame the Separations Act: Why the Design-Build Model Is Unavailable
to Pennsylvania Public Owners, JD Supra (Dec. 14, 2021), https://www.jdsupra.com/legalnews/
blame-the-separations-act-why-the-2322700/.
44. Id.; see H.B. 710 (Pa. 2021).
45. McKenna, supra note 43.
46. PA Uniform Constr. Code (UCC), PennState: Coll. of Eng’g, https://www.phrc.psu.edu/Industry-Education/
Resources/Uniform-Construction-Code.aspx (last visited Oct. 13, 2022).
47. Id.
48. Id.
49. AIA Pa. Testimony on the Uniform Construction Code: Hearing Before the H. Labor & Indus. Comm., https://
www.legis.state.pa.us/WU01/LI/TR/Transcripts/2021_0096_0003_TSTMNY.pdf (last visited Oct. 13, 2022).
50. RA & Architecture Firm License Renewals Due June 30, AIA Pa. (May 28, 2021), https://aiapa.
org/2021/05/28/ra-architecture-firm-license-renewals-due-june-30/#:~:text=Instructions%20provided%20by%20
the%20PA%20Department%20of%20State,you %20must%20register%20for%20a%20sole-proprietor%20
firm%20license.
51. Architects Licensure Law, Act of Dec. 14, 1982, Pub. L. No. 1227 (Pa.), No. 281, § 20(a).
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52. Id.
53. Id.
54. Id.
55. Kim Bellware, Hurricane Andrew Transformed Florida’s Building Codes. The Champlain Towers Collapse
Could Usher in a New Era of Regulations, Wash. Post (June 30, 2021), https://www.washingtonpost.com/
history/2021/06/30/florida-building-codes/.
56. Id.
57. Id.
58. See Fla. Stat. Ann. § 481.213.
59. BCIC LLC, Florida Building Construction Standards: Advanced FBC Permits and Application of the Code
(2012), https://www.floridabuilding.org/fbc/commission/FBC_0413/Commission_Education_POC/173/173-1-MATERIAL%
20.pdf.
60. SB 785 Signed into Law, Design-Build Inst. of Am. W. Pac. Region (Oct. 3, 2014), http://www.dbiawpr.org/
news-events/news/sb-785-signed-into-law/.
61. Building Design Authority, BD for Pro. Eng’rs & Land Surveyors, https://www.bpelsg.ca.gov/pubs/building_
design_auth.pdf (last visited Oct. 13, 2022).
62. Cal. Bus. & Prof. Code § 5536.
63. Id.
64. Id. § 5536.1.
65. Press Release, Rob Bonta, Att’y Gen., Attorney General Bonta Issues Guidance to Local Governments to
Mitigate Wildfire Risk from Proposed Developments in Fire-Prone Areas (Oct. 10, 2022), https://oag.ca.gov/news/
press-releases/attorney-general-bonta-issues-guidance-local-governments-mitigate-wildfire-risk.
66. Id.
67. Id.
68. Id.
69. Whose Design Is It, Anyway? The Benefits and Challenges of Delegated Design, ABA F. on Constr. Law 2
(2018).
70. FMI Consulting & DBIA, Design-Build Utilization Update 25 (Sept. 2021), https://fmicorp.com/insights/
industry-insights/design-build-utilization-study.
71. Id.
72. Id. at 3.
73. Id.
74. Id. at 6.
75. Steven Henderson & David Ratterman, United States: Pre-Bid Due Diligence, MONDAQ (Mar. 15, 2019),
https://www.mondaq.com/unitedstates/construction-planning/789252/pre-bid-due-diligence.
76. Gregory Andre, Design-Assist: Getting Contractors Involved Early, Legal Insight: K&L Gates (Sept. 19, 2012).
77. Henderson & Ratterman, supra note 75; see also Andre, supra note 76.
78. Henderson & Ratterman, supra note 75.
79. Andre, supra note 76.
80. Whose Design is it, Anyway?, supra note 69.
81. Id. at 10.
82. Gregory H. Chertoff & Navid Ansari, Design Delegation: Legal Definitions, Practical Considerations, and the
Need for Clarity, Associated Gen. Contractors of Am. 1 (Jan. 2019), https://www.agc.org/sites/default/files/pdf/Handout%
20on%20Delegated%20Design.pdf.
83. Id. at 3.
84. Id.
85. The Construction Dorkcast, Episode 36: Design Assist or Design Rescue (Nov. 21, 2021) (downloaded using
Google Podcasts).
86. Chertoff & Ansari, supra note 82, at 10.
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87. See Constr. Law Today, supra note 25.
88. Id.
89. Id.
90. Id.
91. Id.
92. Id.
93. Id.
94. Chertoff & Ansari, supra note 82, at 10.
95. Id. at 7–8.
96. N.Y. Comp. Codes R. & Regs. § 29.3(b)(3)(iii) (emphasis added).
97. Chertoff & Ansari, supra note 82, at 8.
98. Id.
99. Frequently Asked Questions on Design-Build Matters in New York State, NSPE-NY (Mar. 13, 2013),
http://nysspe.org/2013/03/13/frequently-asked-questions-on-design-build-matters-in-new-york-state/.
100. Chertoff & Ansari, supra note 82, at 8.
101. Id.
102. Id.
103. Id.
104. Id.
105. Id. at 10.
106. Mechanical Construction, Burns Mech., https://www.burnsmechanical.com/mechanical-construction/ (last visited
Oct. 14, 2022).
107. Seglias, O’Brien & Skaroff, supra note 17.
108. 581 Pa. 454 (2005) (the Pennsylvania Supreme Court held that “an architect in the absence of privity of contract
may be sued by a general contractor or the subcontractors working on a construction project for economic loss
foreseeably resulting from breach of an architect’s common law duty of due care in the performance of his contract
with the owner”); Edward Seglias & Robert J. O’Brien, Contractor Obligations in the Design Assist Model, Cohen
Seglias Pallas Greenhall & Furman PC, https://www.cohenseglias.com/news-article/contractor-obligations-in-thedesign-
assist-model/ (last visited Oct. 13, 2022).
109. Seglias & O’Brien, supra note 108.
110. Chertoff & Ansari, supra note 82, at 8.
111. Id. at 11.
112. Id. at 11–12
113. Id.
114. Fla. Stat. § 481.229(4).
115. Id.
116. Id.
117. Chertoff & Ansari, supra note 82, at 14.
118. Id.
119. Id.
120. Id.
121. Id.
122. The History of AIA Contract Documents, AIA Cont. Documents, https://www.aiacontracts.org/contract-docpages/
21531-the-history-of-aia-contract-documents (last visited Oct. 10, 2022).
123. Philip L. Bruner, Construction Law: The Historical Perspective, in Construction Law (William Allensworth
et al. eds., Am. Bar Ass’n 2009), https://www.americanbar.org/content/dam/aba-cms-dotorg/products/inv/
book/364203095/5570241_sample.pdf.
124. Id.
125. Id.
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126. Mark Patterson, Standardization of Standard-Form Contracts: Competition and Contract Implications, 52
Wm. & Mary L. Rev. 327, 352–53 (2010).
127. About, ConsensusDocs, https://www.consensusdocs.org/about-us-consensusdocs-coalition/ (last visited Oct.
13, 2022).
128. Id.
129. Engineers Joint Contract Documents Committee, EJCDC, https://www.ejcdc.
org/#:~:text=EJCDC%C2%AE%20has%20existed%20since,engineering%20design%20and%20construction%20
projects (last visited Oct. 13, 2022).
130. Id.
131. The History of AIA Contract Documents, supra note 122.
132. List of All Current AIA Contract Documents, Am. Inst. of Architects, https://www.aia.org/resources/6150803-
list-of-all-current-aia-contract-documents (last visited Oct. 14, 2022).
133. Id.
134. Whose Design Is It, Anyway?, supra note 69.
135. Increase Design Collaboration with New Design Assist and Delegated Design Services Agreements, AIA Cont.
Documents, https://www.aiacontracts.org/articles/6431092-increase-design-collaboration-with-new-design-assist-anddelegated-
design-services-agreements (last visited Oct. 13, 2022).
136. Id.
137. Id.
138. Id.
139. C-700 2018 Standard General Conditions, EJCDC, https://www.ejcdc.org/product/c-700-standard-generalconditions-
2018/ (last visited Oct. 14, 2022).
140. Kevin O’Beirne, Shop Drawings and Submittals, Part 6—Delegated Design Submittals, EJCDC (June 14,
2022), https://www.ejcdc.org/shop-drawings-and-submittals-part-6-delegated-design-submittals-by-kevin-obeirnepe/#:~:
text=Delegated%20design%20is%20when%20a,of%20the%20completed%2C%20functioning%20
project.
141. Id.
142. Id.
143 Id.
144. Gregory H. Chertoff & Levi W. Barrett, Design Delegation—Practical Considerations
and the Need for Clarity, ConsensusDocs (Mar. 28, 2019), www.consensusdocs.org/
design-delegation-practical-considerations-and-the-need-for-clarity/.
145. Id.
146. Id.
147. Id.
148. Whose Design Is It, Anyway?, supra note 69, at. 8–9.
149. Bill Ohle, Op-Ed, Standard Form Construction Contracts: Uses and Misuses, Schwabe Williamson & Wyatt
(Mar. 2, 2018), https://www.schwabe.com/newsroom-publications-14868.
150. Id.
151. AIA documents were “[d]esigned to protect the financial interests of architects.” Patterson, supra note 126.
152. Id.
153. Ohle, supra note 149.
154. Id.
155. See M.A. Mortenson Co. v. United States, 40 Fed. Cl. 389, 431 (1998) (holding that a design builder may rely
on project owner–provided design specifications such that they are not liable for damages if reliance on specifications
results in project defect); Metcalf Constr. Co., Inc. v. United States, 742 F.3d 984, 990 (2014) (vacating trial court
decision that design builder could not rely on design specification information provided by project owner); Coghlin
Elec. Contractors v. Gilbane Bldg., 36 N.E.3d 505, 512 (Mass. 2015) (holding that a project owner’s implied warranty
of sufficiency of plans and specifications can apply in a construction management at-risk contract); Middlesex Corp.,
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Inc. v. Fay, Spofford & Thorndike, Inc., No. SUCA201502592BLS1, 2019 WL 3552609, at *11 (Mass. Super. June 28,
2019) (holding a designer not responsible for harm suffered by a contractor as a result of their pricing and cost bid
mistakes related to the design).
156. 2017 WL 1904255 (E.D. Va. May 9, 2017).
157. Case No. 16-026070-CA-01, in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County,
Florida (2016) (settled out of court).
158. The total cost method subtracts the bid price from the actual cost of performance and adds profits.
159. 65 Fed. Cl. 657, 686 (2005).
160. 784 S.E.2d 265 (Va. 2016).
161. Del. State Univ. v. Thomas Co., Inc., 2020 WL 6799605, at *25–26, 48 (D. Del. 2020).
162. Henderson & Ratterman, supra note 75.
163. Whose Design Is It, Anyway?, supra note 69, at 8.
164. Henderson & Ratterman, supra note 75.
165. Id.
