Department Design Errors: Why the Contractor is Still Held Liable
Theme: Tendering to Execution; Module: Engineering & Site
Author: Dr. Pradeep Reddy Sarvareddy
Published Date: 28 Jan 2026
If a Department provides all the Designs & Drawings, most Contractors assume that the Contractor cannot be blamed for the Design mistakes and that the Contractor does not have any design liability. This is a dangerous assumption and myth. In many Government and Infrastructure Contracts, the Design Liability and risk is shifted to the Contractor, instead of the Design Engineer or the Government Department, by using terms like “duty to verify” or by some other “innocent” clauses. This situation may create a legal obligation on the Contractor when a failure occurs in the construction. This article explains these traps & risks, how to understand such clauses and what practical steps can be taken by the Contractors to protect themselves.
In some contracts, the Department provides all the designs and drawings. In such Contracts, most contractors believe that the contractor cannot be blamed when something fails due to a Design Issue. Unfortunately, this belief is wrong and the Contractor could still be blamed and likely even be held responsible due to faulty design issues.
In many contracts or drawings, there will be innocent lines of text such as “Contractor shall examine the drawings and notify discrepancies” or “Contractor is deemed to have satisfied himself of the Design”. These clauses do not make the Contractor a designer, but they create a legal obligation or expectations that the Contractor will notify the designer or engineer when something is not as per the “assumptions” or “details” as noted by the designer. This means that the Contractors have to understand the design, prepare a list of assumptions, prepare a list of details and other factors which a design engineer considered in the design and drawings. If the Contractor is silent, then it could be assumed that the Contractor is at fault and was negligent for the design deficiency.
Most people explain that contractor need not check design calculations. But they say that the Contractor is expected to identify any site condition that could be spotted which the design engineer could have missed or considered wrong or assumed. But, how do you do this practically?
Next aspect that most people tell a Contractor is to check the drawings and details, and identify any discrepancies or clarifications in the drawings that the design engineer mentioned wrongly. These issues could be missing dimensions, congested reinforcement, ground levels that do not match, improper sequence of drawings, etc. Some of them could be identified during execution, but some come up at the last minute, which means that the work has to stop for a few days. In this anxiety, oral instructions are received from “someone” (who nobody knows), the work is completed without stopping and there is no document. So, if something goes wrong, no issue, we can always blame the Contractor.
So, here are some quick lessons. There are three kinds of defects.
- Latent defects are hidden engineering errors and these not discoverable during normal checks. These will be known only after construction, like water seepage inside a newly constructed building after a few years.
- Patent defects are the visible defects. Even if no one objected during the construction, they could object during inspection or final billing or even otherwise, blame the contractor when the structure collapses.
- Execution defect are the ones that include defects during construction. Usually these are noticeable by most and are rectified immediately. This is natural. The Contractor usually has a QA / QC team which will approve before construction. But these defects are noted in registers and are magnified whenever a dispute occurs, without mentioning that they were identified by the Contractor himself and rectified. No one can work on a large project without committing any mistake. That is why QA / QC teams exist to catch such mistakes before completion. But this aspect gets forgotten and the Contractor is shown in poor light and as incapable.
Finally, even when disputes occur, people are disputing as to which kind of defect they should dispute about. This can become a cyclic argument and there is no end to it.
Next lesson. Know that even when the design is perfect, there can be changes due to hidden site conditions which is not possible to know unless you dig. Hence, the blaming the Contractor is easy. Note that the ground or site conditions include groundwater, soil conditions like soft soil, presence of underground utilities, etc. So, learn to document everything and get written instructions. Otherwise, even if you use the correct materials, the Contractor would most likely be blamed for these issues.
Due to these kinds of risks, some contractors (actually very few and those that suffered earlier) engage a design engineer to check all the designs and drawings, even though it’s not in their scope and they do not get paid for such design checks. These feels like a wasted expense, but compared to the future / potential risks, penalties or even the process of facing legal accusations, this expense is cheaper. This is like insurance. You never know when you need the benefit of insurance. Oh, that reminds me. Take “insurance”. Literally, insurance, so that your risks are actually insured.
Quick summary of the lessons learnt. First hire a design engineer, obtain insurance before starting any work, document everything at the site and obtain written instructions. When a Contractor understands where the Contractor’s risk begins (even though the reason for the risk is not within his scope), the Contractor can protect not just the project, but money, reputation and peace of mind.
What a smart Contractor does: ask, record, clarify and shift the burden to the Department.