Design Risk Allocation Under a Traditional Build Contract

Kim Rosenberg

September 2012

A paper based on the commended prize entry in the Hudson Prize essay competition 2011

When a project is procured by the 'traditional route' (design by or on behalf of the employer), does this mean that the main contractor carries no risk for the buildability of the project as designed? In this paper, Kim Rosenberg argues that the situation is not straightforward, either at common law or under many standard forms. She explains why, using the FIDIC 'Red Book' as her focus and referring to authority from a wide range of common law jurisdictions.

1. Introduction - 2. Buildability design risks: current case law - 3. Allocation of the buildability design risk under the Red Book - Variations - Extensions of time - 4. Alternative arguments to relieve contractor - Extra work executed outside the construction contract - Construction contract has been frustrated - Negligent misstatement by the engineer - 5. Conclusions - Appendix (Relevant provisions of the FIDIC Red Book).

The author: Kim Rosenberg is a Senior Associate at Freshfields Bruckhaus Deringer LLP in London.

Text 16 pages plus appendix.