This article was written for the ConsensusDocs newsletter and first appeared here.

Design‐build has continued its steady ascent in both the private and public spheres, revolutionizing how stakeholders approach construction projects. By melding design and construction responsibilities into a single point of responsibility, design‐build can streamline project delivery and reduce administrative inefficiencies. Yet, this consolidated approach does not immunize participants from complex warranty obligations. Rather, warranty issues remain murky as potential owner warranties are implicated by bridging documents, federal and state procurement regulations, and performance specifications. That said, we will explore an owner’s implied warranties in the design‐build context—first defining the problem, then describing measures for clarifying risk allocation between the parties. Ultimately, a well‐drafted design‐build contract will bridge over potential warranty pitfalls.

1. Defining “Bridging Documents” in Design‐Build

In “bridging” or “partial design” situations, the owner furnishes preliminary design documents or performance criteria that the design‐builder must finalize and implement. These bridging documents can include site data (e.g., geotechnical studies), conceptual plans, or schematic designs. From a warranty perspective the pivotal question is whether the owner’s partially complete plans inadvertently create an implied warranty as set forth in the landmark Spearin doctrine. Under United States v. Spearin, 248 U.S. 132 (1918), owners who provide defective design specifications can be liable for resulting cost overruns, schedule delays, or rework.

In design‐build, however, the design‐builder typically has primary responsibility for completing and validating the design; courts and Boards of Contract Appeals frequently hold that Spearin‐type warranties are “curtailed” because the contractor ultimately “owns” the design. However, if the owner is truly passing along design documents that are not subject to re‐evaluation, the design‐builder may still raise a Spearin‐like claim or defense if a defect later emerges in the bridging documents. The upshot then is that bridging documents must be approached cautiously.

2. Owners’ Implied Warranties in Design‐Build

   A. Traditional Spearin Warranty, Modified

Traditionally, Spearin ensures that when the owner prepares and provides design specs, it implicitly warrants their adequacy. In design‐build, the lines of responsibility shift. Nonetheless, an implied warranty can still arise if:

1. The owner supplies partial or bridging documents containing critical or detailed designs, and
2. The design‐builder reasonably relies upon them when finalizing its bid or completing the project scope.

To avoid this, many public and private owners attempt to disclaim any warranty or representation regarding the accuracy of the bridging documents.

         B.  Implied Fitness for Purpose

Courts in some jurisdictions have long recognized that an owner may implicitly warrant the “fitness for purpose” of the structure’s design if it provides specialized preliminary designs or site data. Kennedy v. Bowling, 319 Mo. 401, 4 S.W.2d 438 (1928). This risk can be heightened if the owner’s bridging documents reflect specialized knowledge that the design‐builder is entitled to rely upon or could not have reasonably come to know without the owner’s disclosure. N. Harris County Junior Coll. Dist. v. Fleetwood Constr. Co., 604 S.W.2d 247, 254 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref’d, n.r.e.).

3. Key Federal Frameworks: 41 U.S.C. § 3309, 48 C.F.R. pt. 36, § 36.3, and pt. 536

Under 41 U.S.C. § 3309 and the associated regulations in 48 C.F.R. Part 36—especially Subpart 36.3—federal agencies frequently use a two‐phase design‐build procurement model. In Phase One, the government evaluates potential contractors’ qualifications to form a shortlist. In Phase Two, these finalists submit technical proposals and pricing, relying in part on the government’s preliminary or “bridging” documents. Because the design‐builder is responsible for completing the design, the government typically includes disclaimers to limit its liability for any incomplete or erroneous preliminary information.

Two Federal Acquisition Regulation (FAR) clauses commonly define risk allocation in these contexts:

1. FAR 52.236‐21 (“Specifications and Drawings for Construction”)

This provision obligates contractors to interpret and follow government‐provided specifications and drawings, requiring them to report any inconsistencies or flaws they discover.

2. FAR 52.236‐23 (“Responsibility of the Architect‐Engineer Contractor”)

Although initially aimed at architect‐engineer services, it clarifies that design responsibility rests primarily with the contractor—thereby reducing the government’s exposure to Spearin‐type implied warranty claims.

However, these disclaimers are not absolute. If the government’s bridging documents contain errors that a design‐builder could not have reasonably detected before contract award, the Spearin doctrine (implied warranty of design adequacy) may still apply. Magnus Pacific Corp. v. United States, 133 Fed.Cl. 640 (2017).

4. State Level Design-Build Considerations

Further, understanding state-level statutes which govern design responsibility is vital to any successful design-build project. Some states adopted design-build specific warranty statutes which complicate the calculus. Although disclaimers can mitigate these risks, if the disclaimers conflict with statutory requirements, courts may deem them unenforceable.

For example, many states codify specific requirements for performance or design-criteria packages in design-build contracts. If an owner furnishes incomplete or inaccurate materials, it may still be exposed to Spearin-type implied warranties—even if the design-builder bears primary responsibility for finalizing the design. And as mentioned, certain states have commercial codes or other rules that carve out owner liability in design-build contracts, shifting verification duties for bridging documents back to the design-builder. Accordingly, to be enforceable, any disclaimers must be drafted in harmony with any such provisions.

Given these state variations, a design-build team should carefully assess the controlling law of the project before contract execution: document assumptions; request clarifications when bridging documents are unclear; and tailor disclaimers to align with any transparency, disclosure, or carve out statutes. By proactively negotiating risk allocations and adhering to statutory requirements, both owners and design-builders can minimize disputes and better manage these warranty issues.

5. Practical Measures for Clarifying Risk Allocation

1. Read All Regulations and Statutes Carefully

Design‐builders should confirm whether the contract incorporates clauses such as FAR 52.236‐21, 52.236‐23, or state‐level counterparts that can shift risk. On public jobs, pay close attention to how bridging documents are labeled and whether disclaimers conflict with transparency obligations. Raise those issues with the owner if identified, and be sure to address your state’s applicable law.

2. Request Clarifications Pre‐Award

If bridging documents contain ambiguities or omissions, ask for clarification or additional data. Document these inquiries through Requests for Information (RFIs).

3. Negotiate Express Warranties Thoughtfully

Many design‐build agreements include performance warranties that go beyond a typical “standard of care.” Accordingly, a prudent design-builder will negotiate language that:

• Limits open‐ended liability or consequential damages;
• Distinguishes between the owner’s bridging documents and the design‐builder’s final design obligations; and
• Includes disclaimers aligning with the relevant federal or state procurement statutes.

4. Maintain Thorough Documentation

Keep comprehensive design logs, records of design changes, and RFI responses. If a dispute arises, documentation can be pivotal in showing which party had responsibility for what portion of the design.

5. Monitor Protest Rights and “Transparency” Requirements

Under federal law, disappointed bidders can file protests at the Government Accountability Office (GAO) or the U.S. Court of Federal Claims. Similarly, states and other governmental entities have protest mechanisms. Understand the protest processes and remain vigilant about meeting solicitation requirements, especially on bridging documents.

6. Conclusion

Design‐build contracts bring about integrated responsibilities that can streamline projects, but these arrangements do not eliminate the complexities of implied warranties—especially when owners furnish bridging or partial design documents. Federal statutes (41 U.S.C. § 3309), regulations (48 C.F.R. pt. 36, 48 C.F.R. § 36.3, 48 C.F.R. pt. 536), and state laws underscore that both private and public design-build stakeholders must carefully consider disclaimers—while design‐builder contractors should remain keenly alert to potential implied warranties or items where clarification is needed.

By conducting thorough reviews of partial owner designs, negotiating express warranties with clarity, and ensuring documentation of any disclaimers or clarifications, design‐builders and owners alike can solidify a shared foundation of trust. Therefore, with proper planning, the challenges posed by bridging documents or partial designs swiftly go from potential pitfalls to little more than water under the bridge.