Under a design-build project delivery, typically the general contractor contracts with the owner to be responsible for both the design and construction of the project.  This benefits the owner because if there is a design or construction issue–whether causing an increase in budget, a defect, or a delay–the owner can point to the contractor since it is the entity responsible for both disciplines.  This benefits the contractor (in addition to the owner) because it is now working closely with the design professional so their interests are aligned and the contractor can have more control over value engineering or cost savings implementation and obtaining answers to requests for information or approvals to submittals and shop drawings.  Since the contractor is fully accountable for both the design and construction, it is working closely and collaborating with the design professionals to improve the efficiency in the construction process. Furthermore, since the contractor is responsible for the design, it has more flexibility fast-tracking the construction in phases even though the complete design is not finalized.  By fast-tracking the construction and overlapping the construction with the design, the contractor is ideally in a position to efficiently meet scheduling and production requirements.

 

 

A contractor is able to offer and perform design-build services because there is an exemption under the required licensing statutes for a contractor, architect, and engineer that allow these entities to negotiate / contract for design-build work as long as they are engaging a licensed professional to perform those tasks in which they are not licensed.  For instance, a contractor is exempt from the requirement of being a licensed architect when contracting and offering design-build work as long as the contractor engages a licensed architect to perform the design. This is set forth in Florida Statute s. 481.229(3) that provides:

 

“Notwithstanding the provisions of this part, a general contractor who is certified or registered pursuant to the provisions of chapter 489 is not required to be licensed as an architect when negotiating or performing services under a design-build contract as long as the architectural services offered or rendered in connection with the contract are offered and rendered by an architect licensed in accordance with this chapter.”

 

 

Similarly, while less common, an architect or engineer is exempt from the requirement of being a licensed contractor when contracting and offering design-build work as long as these design professionals engage a licensed contractor to perform the construction.  This is set forth in Florida Statute s. 489.103(16) that provides:

 

 “An architect or landscape architect licensed pursuant to chapter 481 or an engineer licensed pursuant to chapter 471 who offers or renders design-build services which may require the services of a contractor certified or registered pursuant to the provisions of this chapter, as long as the contractor services to be performed under the terms of the design-build contract are offered and rendered by a certified or registered general contractor in accordance with this chapter.” 

 

Despite these exemptions, recently the Florida Board of Architecture and Interior Design in Diaz & Russell Corp. v. Department of Business and Professional Regulation,  39 Fla. L. Weekly D 1125a (Fla. 3d DCA 2014), charged a general contractor for improperly performing services as an architect (when it was not a licensed architect) simply because the general contractor was offering design-build services.  Basically, the Florida Board of Architecture maintained that the contractor needed to identify the designated architect in its proposal to the owner offering the architectural services.  On appeal, the Third District Court of Florida correctly reversed this ruling because there is nothing that requires the contractor to identify the architect or engineer at the time of the proposal / contract just like there is nothing requiring the architect or engineer to identify the contractor at the time of the proposal / contract.  The statutory exemption would simply require the contractor to engage a licensed architect to perform the design, which was not an issue in this case because the contractor properly hired an architect to prepare the design.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.