Since its decision in C.L. Maddox, Inc., design professionals have included language in their design-build-teaming agreements that state the responsibility of the design professional in the contractor`s reliance on the design professional`s offering phase services. An example of such language is as follows: when a design construction project proposal is prepared, the design professional`s fees are based on certain assumptions of the design professional, including, but not limited to, the scope of performance, the expected project schedule, the partners of the design team, and the terms of the design agreement. As with any project, the terms of the design agreement significantly influence the risk that the design professional takes on in a design construction project and should be considered from project to project. This may be a call to postpone negotiations on the specific conditions to be included in the „next agreement“; However, the postponement of negotiations on the specific conditions to be included in the „follow-up contract“ raises the question whether the teaming agreement obliges the contractor to retain the design professional when in charge of the design construction project and compromises the role of the design professional in the design construction team. If the contractor and the design professional are unable to agree on the terms of the subcontracting agreement after the award, the contractor may argue that there was no agreement between the contractor and the design professional on the essential terms of the subcontracting agreement and that the teaming agreement is only an unenforceable „agreement“ to be agreed. If the design professional is „threatened“ for his costs in the offer phase, it is particularly important to avoid any behavior that can be interpreted as an infringement of the applicability of the monitoring agreement for the project itself. When providing services in the offer phase under a team agreement, the design professional should grant the contractor a limited licence for the use of its work product where it is forced to bear its own offer costs.
- Keine Kategorien