One of my typical roles as an owner advisor is to review proposed construction management at-risk (CMAR) and design-build contracts from a commercial perspective—i.e., what’s the likely marketplace reaction to the contract and is the contract consistent with the philosophy behind collaborative delivery? I am continually amazed by what I see. For example, on two of my current public design-build projects, the RFP versions of the contracts: Made design-builders responsible for consequential damages Gave very limited rights for time and cost relief for events beyond the design-builder’s reasonable control Contained substantial, uncapped, schedule liquidated damages Made the design-builder responsible for not only managing the performance of the owner’s other prime contractors, but for their delays in performance Obligated the design-builder to a far-reaching and uninsurable indemnity Provided that all disputes would be fully and finally resolved by the owner’s chief engineer, with limited appeal rights When I pointed out my concerns to the project’s legal team, the reaction was one that I have heard for years: “Yeah, whatever. Let’s see how the marketplace responds. They can price the risk in their proposal.”