By: Richard E. Guttentag, Esq. and Alex Beck, Esq., Stearns, Roberts & Guttentag, LLC

“Design-build” projects involve an integrated approach that delivers design and construction under one contract. Under a design-build contract, the owner enters into a single contract, usually with a general contractor (who in turn enters into a contract with an architect), rather than the owner entering into dual contracts with a contractor and architectural firm.  Because the design-build contract involves both construction and architectural services, issues regarding the licensing requirements under a design-build contract have arisen. An issue involving the general contractor’s exemption from obtaining an architectural license under a design-build contract recently arose on a design-build project in Miami, and was addressed in the case of Diaz & Russell Corp. v. Department of Business and Professional Regulation, 2014 WL 2199757 (Fla. 3rd DCA 2014).

In Diaz & Russell Corp. v. Department of Business and Professional Regulation, the Contractor was a licensed general contractor, but was not licensed to practice architecture. The Contractor’s written design-build proposal did not identify a specific Florida-licensed architect hired by the Contractor to prepare the architectural drawings for the Project. However, the Contractor hired an architect to prepare the architectural drawings for the project, and the architect was identified on the drawings submitted to the building department.

The Board of Architecture and Interior Design (Board) filed a complaint against the Contractor alleging that the Contractor’s failure to identify the licensed architect in the written proposal was tantamount to practicing architecture without a license. In turn, the Contractor argued that the “design-build” proposal and services were authorized by the statutory exemption under F.S. 489.229(3), which provides in part:

“a general contractor who is certified or registered . . . is not required to be licensed as an architect when negotiating or performing services under a design-build contract as long as the architectural services offered or rendered . . . are offered and rendered by an architect licensed in accordance with this chapter.”

The lower court ruled that the Contractor was required to identify the architect on the project at the time the design-build proposal was submitted. The Contractor appealed.

The appellate court reversed the order against the Contractor, concluding that requiring the architect to be identified in the contract imposed requirements that were not found in the statute.  The appellate court found that while the exemption requires that the rendering and offering of architectural services under a design-build project be provided by a licensed architect, the statute does not require the contractor to identify the architect in the design-build contract.  Further, the exemption specifically authorizes a licensed contractor to ‘negotiate’ a design-build contract. Such negotiation requires the contractor to make and receive offers and counteroffers related to all components of the contract. During such negotiations, the scope of the project, and therefore, the architect performing the project’s design components can change, such that the identity of the architect ultimately performing the architectural services may not be known at the time the contract is executed. Accordingly, the Court held that as long as the negotiating contractor is neither offering to render, nor actually rendering the architectural services related to the “design-build” contract, the architect does not need to be identified in the contract and the general contractor is not required to be licensed as an architect.

This case demonstrates that a general contractor is neither required to identify the architect in a design-build contract, nor required to have an architectural license as a condition of entering into a design-build contract, as long as the architectural services offered or rendered in connection with the contract are offered and rendered by a licensed architect.

About the Author: Alexander S. Beck is an associate with Stearns, Roberts & Guttentag, LLC. Mr. Beck in construction law including construction lien claims, payment and performance bond claims, bid protests, construction contract preparation, and construction and design defect claims He can be reached for consultation at [email protected].

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