NEC ECC Option A: When does a PMI affect a C's design liability under a D&B arrangement?

The Client has procured a new high school under a D&B arrangement on an NEC3 ECC Option A contract. The contractor’s liability was reduced to reasonable skill and care. The WI state ‘The Contractor is responsible for checking and developing the existing concept design beyond that stated in the Employer’s Works Information and is to be responsible for completing the design of the whole of the Works’. A debate has now commenced regarding the design of a control room over a school hall and whether it has been designed correctly to serve its purpose.

In fairness to the C, within the WI the control room was limited to a rectangular room - with a tacit agreement that it was not really functional but due to a need to commence works on site that it would be reviewed post contract. Post contract, the C held a workshop and presented a number of alternative layout solutions incorporating glazed screens (one existing and two additional) with cills at 975 high and set closer to the hall side within a deep reveal). This resulted in an instruction to change the room layout which had been prepared by the C and accepted by the PM.

Because there was no desks or other furniture shown on the plans contained within the WI, a further instruction was granted, asking the C to ‘design, supply and install fixed work benching to the control room…overlooking the main hall following coordination with…’. The instruction is explicit that it must run the length of the room, to a minimum depth, etc.

Low and behold, after installation it transpires that an operator, when sat at the desk can not see out of the room to the production area and to have that ability to see and hear what is going on to make effective changes to the lighting, sound, etc. as such, the S has notified of Defect for correction.

Following a further workshop on site, it was agreed the current installation does not work and that a potential solution would be to i) reduce the height of the glazing screen cills to 810; ii) reduce the thickness off the stud wall so the control room operator is closer to the aperture; and iii) to profile the desk so the operator can again get closer. All improving the viewing angle. The C in now seeking a CE to undertake such works. As PM, my view is that a CE would be valid for the profiles desk arrangement, give that the instruction was explicit that a 600 deep desk should be provided. But, the issues with the room layout e.g. cill height and thickness of partitions, etc., could have been addressed first time around when the C presented the flawed design solution. Under a D&B arrangement, should he have coordinated the trades more effectively, I suggest (provocatively) that it should have been done right first time and the E should not be liable to pay twice. Acceptance does not dissolve the C of his design liability to act in the manner expected of an Architect.

I appreciate my view is biased and that I am making some bold assumptions and would therefore welcome some honest views. If my understanding is incorrect then I would been keen to know why.

Thanks in advance.

As I think you know from your text, this is going to be subjective.

As you note, the level of liability is reduced to reasonable skill and care i.e. the process and knowledge applied, so ask the architect to demonstrate the process followed by reference to notes etc… If he/she just knocked up a sketch with no thought, then he/she would probably have not used reasonable skill and care. If he/she referenced and research standards, spoke to the end user, had the end design checked etc. the situation may be different.