Taking Precautions

Collaborative Delivery Models & Risk Allocation

by Trent Cotney, Partner, Adams & Reese, LLP

(Editor’s Note:  Trent Cotney, partner at Adams & Reese, LLP, is dedicated to representing the roofing and construction industries.  Cotney is General Counsel for the Western States Roofing Contractors Association and several other industry associations.  For more information, contact him at (866) 303-5868 or go to www.adamsandreese.com.)

Collaborative delivery models are no longer niche concepts reserved for large institutional projects.  Approaches such as design-assist, integrated project delivery (IPD), and hybrid collaborative structures are now common across commercial, mixed-use, and high-end residential developments throughout the Western United States.  While these models are often adopted to improve efficiency, encourage innovation, and reduce conflict, they fundamentally alter how responsibility and risk are assigned during construction.

         For architects, specifiers, and other design professionals, understanding these shifts is essential.  Project failures rarely stem from a single misstep.  More often, they arise from layered decision-making, shared assumptions, and blurred authority, which are conditions that collaborative models can unintentionally foster if roles are not carefully defined.

How Collaboration Alters Traditional Risk Allocation

         Under a traditional design-bid-build structure, responsibility follows a relatively predictable path.  The design professional develops the plans, the contractor executes the work, and liability generally aligns with that division.  Collaborative delivery disrupts this clarity by introducing early contractor involvement, shared problem-solving, and real-time input into design development.

         Contractors may contribute to system selection, detailing, sequencing, or value engineering before construction documents are complete.  While this collaboration can improve constructability and performance, it also explains why courts increasingly examine who influenced key decisions when a project later experiences defects or failures.

Design-Assist Is Not Design-Free

         A common misconception is that design-assist arrangements reduce or transfer design responsibility away from architects.  In practice, the opposite is often true.  If roles are not clearly delineated, design-assist can expand exposure for everyone involved.

         Design professionals typically retain responsibility for overall design intent and code compliance.  Contractors who provide recommendations may assume responsibility for constructability input, sequencing strategies, or performance assumptions embedded in those recommendations.  When contracts and documents fail to distinguish between advisory input and delegated design, disputes become difficult to untangle.

IPD & the Limits of Shared Risk

         Integrated project delivery is frequently marketed as a shared risk, shared reward model.  While IPD agreements may include internal waivers of certain claims, those protections have limits.

         Claims can still arise from owners, insurers, or third parties who are not bound by internal project agreements.  When disputes reach litigation, courts tend to look past collaborative philosophies and focus instead on concrete issues: who made the decision, who approved it, and who exercised control over execution.

Why Specifications Matter Even More

         Collaborative projects often streamline specifications to promote flexibility and speed.  While this can accelerate schedules, vague or open-ended performance criteria can introduce significant downstream risk.  If specifications rely heavily on contractor input without clearly documenting final decisions, responsibility becomes unclear.  Design professionals should ensure that specifications still define performance expectations, testing requirements, and approval thresholds.

Submittals & Review Exposure

         Collaborative delivery often involves extensive submittals, iterative reviews, and frequent coordination meetings.  Over time, approval stamps and detailed comments can unintentionally expand responsibility.  Courts increasingly examine whether repeated review cycles cross the line from compliance verification into direction of means and methods.

Manufacturer Participation

         Early manufacturer involvement is common in collaborative projects and can provide valuable technical insight.  At the same time, it adds another voice to the decision-making process.

         Collaborative delivery can be effective without increasing exposure, but only if risk is managed deliberately.  Best practices include clearly distinguishing advisory input from delegated design, documenting decision-making authority, maintaining clear performance-based specifications, and ensuring contracts align with actual project behavior.

         Collaborative delivery offers real benefits, but it does not eliminate risk.  It reshapes it.  When authority, responsibility, and accountability are clearly defined, collaborative delivery can reduce disputes.  When they are not, collaboration itself may become the evidence used to assign liability.