In today's article from our Tuesday Mornings for Construction series, we'll briefly outline the designer's responsibilities in connection with the implementation of a design contract. First, we'd like to introduce you to who a designer is and what their responsibilities are in the complex construction process.
A designer is a participant in the construction process. They are the author of a construction design or the person who has adapted a construction design for a specific investment. Only an architect can be a designer. The scope of a designer's responsibilities is defined by the contract concluded with the investor and Article 20 of the Construction Law. However, the designer's responsibilities under the aforementioned Act cannot be limited by the contract concluded with the investor, as these are mandatory provisions.
According to the Construction Law, the designer has the following obligations:
1) preparation of a construction design in accordance with the requirements of the Building Law, the arrangements specified in administrative decisions concerning the construction project, applicable regulations and principles of technical knowledge, including in particular the local spatial development plan or, in the absence thereof, in accordance with the decision on development conditions;
2) ensuring, if necessary, the participation of persons with building qualifications to design in the appropriate specialty in the development of the construction design;
3) mutual technical coordination of design studies carried out by the persons referred to in 2), ensuring that the safety and health protection principles contained in the regulations are taken into account in the construction process, taking into account the specificity of the construction project and ensuring compliance of the technical design with the plot or land development plan and the architectural and construction design;
4) preparation of information on safety and health protection due to the specific nature of the designed building, taken into account in the safety and health protection plan;
5) determining the area of influence of the planned facility;
6) obtaining the required opinions, approvals, and verifications of design solutions within the scope required by specific regulations. This obligation applies to obtaining opinions, approvals, and verifications that the designer obtains outside of administrative proceedings, e.g., confirming the correctness of design solutions with fire safety regulations;
7) clarifying doubts regarding the project and the solutions contained therein;
8) preparing or agreeing on individual technical documentation, within the scope of approval for individual use in a construction facility of construction products for which the manufacturer has issued a declaration of conformity of the construction product with the documentation and regulations;
9) exercising authorial supervision at the request of the investor or the architectural and construction administration body in the scope of:
a. determining, during the execution of construction works, the compliance of the implementation with the design,
b. provided for in the design, reported by the construction manager or the investor’s supervision inspector;
10) the designer also ensures that the architectural, construction and technical design is checked for compliance with the regulations, including technical and construction regulations, by a person with building qualifications to design without restrictions in the relevant specialty.
The obligation referred to in point 10) does not apply to the scope covered by verification and opinion-giving on the basis of specific provisions and designs of simple construction objects, such as: single-family residential buildings, small farm buildings, livestock buildings and storage facilities.
The above obligations arise directly from the Construction Law. However, under the principle of freedom of contract, the investor may impose additional obligations on the designer as part of their legal relationship. In practice, in addition to the obligations described above, the designer is also obligated under the contract to:
1) preparation of the investment implementation design,
2) obtaining a decision on a building permit for the building whose design he prepared,
3) carrying out cost estimation work regarding the prices of materials used to implement the investment,
4) taking steps together with the investor or other third party to obtain a decision on an occupancy permit.
In summary, the designer, as a participant in the construction process, has specific obligations imposed on him, aimed at ensuring the complex construction process. We would also like to highlight the differences between statutory obligations arising directly from the Construction Law and the contractual obligations to which the designer has committed as part of the contract concluded with the investor. This is of significant importance in the context of the investor's responsibility, which we will discuss in the next article in this series.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of December 6, 2022
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