NEC3: Design liability on Contractor proposed equipment/built elements

We are currently in the process of letting a main contract that includes MEP elements that are defined (effectively) by a performance specification. Naturally, the consultant has used a provisional equipment selection (that they will not share) to ensure design coordination and viability.

The Contractor is concerned that the lack of a named product, and the requirement to propose a product for acceptance constitutes “design”, as they have made a choice. Meaning that if there were legal issues at a later date (for whatever reason) the design liability would sit with them.

The Consultants understanding is that once a piece of equipment has been accepted all responsibility for design sits with the consultant, with any issues regarding installation/workmanship sitting with the Contractor.

Which is correct?


The Contractor is correct.