Ownership of Design

Question

Our Consultant in final stage to completed a design of water and road projects which will be implemented under FIDIC Red Book.
I would like to know during the implementation who will be responsible to any error in the final design. Design Consultant, Client or Contractor?

Answer

The principle is that each party is responsible for what he/she is doing.

I understand that you are the Client, have a contract with a Consultant and under this contract the Consultant has to issue a design. Under this contract, the Consultant is responsible for the design, i.e. any defect of the design is the Consultant responsibility.

The Client will sign a FIDIC Red Book contract with a Contractor which will have to execute works according to the design given by the Client. Under this contract, the Employer is responsible for the design, since he provided the design.

In case a defect of the design is found during the implementation of the works contract, the Client is responsible for this in his relation with the Contractor. Due to the fact that the design was not issued by the Client, but for the Design Consultant, the Design Consultant is responsible for the design in the relation between the Client and the Design Consultant, but within the works contract the Client remains responsible for the design.

Practically, for a defect found in the design during the implementation of the works contract, the Contractor will receive financial compensations from Client, and the Client will receive financial compensation from the Design Consultant through the service contract concluded between the Client and the Design Consultant. The safest way for the Client to recover his loses/damages because of the defects in the design issued by a Design Contractor is to have a valid performance guarantee or performance bond delivered by the Design Consultant and, in case the Design Consultant refuses to compensate the Client for his losses because of the bad design, the Client can make a claim under the performance guarantee/bond.

During the implementation of the works contract, the Client is responsible for the design in relation with the Contractor, and the Design Consultant is and remains responsible for the design in relation with the Client. The Design Consultant cannot be responsible for the design in relation with the Contractor, since the Contractor and the Design Consultant has no relationship, either contractual or other kind of relationship. The Client provided a design to the Contractor and these 2 have a contractual relationship, therefore the Client is responsible in relation with the Contractor for what he was provided (this case, the design).

These above are not applicable in case, during the implementation of the works contract, the Contractor proposes a change/modification of the Works to make better the project. This case, the modification is to be dealt under Sub-Clause 13.2 [Value Engineering] and the Contractor is responsible for the changed design, therefore for any defect of this part of the final design. For all the other parts of the design, the Client remains responsible in relation with the Contractor, and the Design Consultant in relation with the Client.

http://en.allexperts.com/q/Construction-Law-914/2010/1/ownership-Design.htm