What changes in a design-and-construct contract
In a traditional contract the employer’s designers are responsible for the design, and the contractor is responsible for building it. In design-and-construct (also called design-and-build) arrangements, the contractor takes responsibility for the design, directly or through appointed designers. Some contracts transfer the employer’s designers to the contractor, which is often called novation.
The shift affects insurance in two ways. First, the contractor now has professional liability exposure for design that normally belongs to the employer’s team. Second, the physical-damage and liability policies must be coordinated so that gaps and overlaps around the design are understood.
This page focuses on how the covers fit together on such a contract. The product itself is described on the professional indemnity page.
Who may need to think about it
- Contractors who have won, or are tendering for, design-and-construct or turnkey contracts.
- Civil contractors responsible for the design of drainage, pipelines, roads or earthworks.
- Contractors who inherit designers by novation and need to understand their insurance.
- Contractors who produce temporary works design for complex excavations, shoring or lifting operations.
What the insurance programme may need to address
- Professional liability for the design
- Usually dealt with through professional indemnity cover, either as a project-specific policy or under an annual arrangement, subject to underwriting.
- Design defects and the works
- Contract works policies often treat damage resulting from a design defect differently, and may exclude the cost of improving the design. Ask how your policy wording deals with it.
- Subcontracted and novated designers
- Whether appointed designers carry their own PI cover, in what amount, and whether you can see evidence of it.
- Third-party liability
- Design-related events can produce third-party claims. Check how the public liability policy and the PI policy fit together.
- Contractual insurance requirements
- The contract may require a stated PI limit for a stated period after completion. Check whether this can be met and at what cost.
Important limitations and questions to discuss
- Fitness for purpose
- Standards higher than reasonable skill and care can fall outside PI cover. Ask your adviser to review the clause before you accept it.
- Gaps between policies
- A design failure may involve physical damage, third-party loss and a professional claim at the same time. Confirm which policy would respond to which element.
- Period of cover
- PI cover is usually claims-made. The contract may require cover to be maintained for years after completion, which has cost and planning implications.
- Design completeness at tender stage
- If the design is incomplete when you price, you may be assuming risk that was not obvious. Insurers will ask what stage the design has reached.
- Limits and excesses
- The limits and excesses required by the contract may be higher than your existing policies provide.
Coordinating the covers on a design-and-construct project
| Risk | Cover to discuss | Point to check |
|---|---|---|
| Negligent design causes financial loss to the employer | Professional indemnity | Claims-made basis, retroactive date, fitness-for-purpose wording |
| Physical damage to the works | Contractors All Risk | How design-related damage is treated |
| Injury or damage to third parties | Public liability | Interaction with the PI policy and exclusions for professional services |
| Subcontracted designer fails to deliver | Designer’s PI and the contract terms | Evidence of cover and the limit required |
| Contract requires security for performance | Performance guarantees | Distinct from insurance, and subject to the issuer’s assessment |
Information we usually need for a quotation
Design-and-construct enquiries benefit from sharing the contract documents early.
- The contract form, the employer’s requirements and the insurance clauses.
- A description of the design responsibility you carry and the stage the design has reached.
- Who the designers are, whether they are in-house, appointed or novated, and their PI cover.
- The PI limit and period of cover the contract requires.
- The contract value and programme.
- Details of your existing PI, contract works and liability policies.
- Your claims history and relevant experience on similar projects.
You do not need everything on day one. A short description of the work is enough to start, and the quote form only asks for the details relevant to your enquiry.
Frequently asked questions
Does a Contractors All Risk policy cover design errors?
Often not in full. Many policies exclude or limit loss caused by faulty design, while accidental damage that results may be treated differently. Check the wording and discuss design-related cover with us.
Do I need project-specific PI cover?
Sometimes, if the contract requires it or your annual policy does not suit the project. Project-specific cover and annual cover each have advantages. We can discuss which is appropriate.
What if my designer is novated to me?
You will want to know whether the designer carries PI cover, for what amount and for how long, and whether you can see evidence. The novation agreement and the insurance requirements should be reviewed together.
Related cover
- Professional indemnityCover aimed at claims arising from professional services a contractor provides, such as design, specification or supervision.
- Contractors All RiskCover for the works under construction, such as roadworks, drainage, pipelines and structures, subject to policy terms.
- Public liabilityCover aimed at your legal liability to third parties for injury and property damage arising from your work.
- Performance guaranteesHow performance guarantees work, what to check in the wording, and what the application and assessment involve.
Related guides
- NEC, FIDIC and GCC insurance considerationsAn overview of insurance considerations under NEC, FIDIC and GCC contracts, why requirements are not identical across forms, and how to check your own contract.
- Latent defects explained for contractorsWhat latent defects are, how they differ from patent defects, how liability may continue after the defects period and why insurance does not automatically cover them.
- Insurance after winning a tender: what to prepareWhat to do about insurance after a contract award: reading the contract’s insurance clauses, listing required covers and evidence, timing, and what to send your broker.