Design/build contracts do not confer upon contractors broad discretion to design the project. The contracts typically mandate not only the conceptual parameters of the project, but also extensive performance standards and design features. In order to be enforced against the contractor, however, the design requirements must be included as express terms of the contract.
A design/build contractor on a federal project was recently allowed to recover for a constructive change. The government imposed a performance standard that had not been stipulated in the contract. The contractor was entitled to base its design on historical use data, provided in a “for information only” section of the contract. If the government wanted to mandate a specific performance standard, after contract award, the government would have to pay the increased cost of design and construction.
The other case in this issue involved prevailing wage rates for apprentice workers on public works projects. New York’s highest court ruled that workers enrolled in approved union apprenticeship programs could be paid lower apprentice rates only when performing tasks within the trade in which they were enrolled. For all other tasks performed on site, the state prevailing wage statute required full wage rates.