Don't Let Your Guard Down
Having a claim-free record doesn't guarantee you will be free of future problems. There is a very real risk for even the most careful engineer and you must do everything possible to prevent a claim. That may well mean having a reasonably protective contract for every project. When faced with a client-developed contract that may attempt to shift risk to you, you should have available a number of contract provisions that you can substitute during negotiations. You will always feel more confident in the negotiation process if you can walk away from a project if you have to.

Can You Get a "Free Zone" in Your Contract?
Some contracts provide for a "free zone" and state that a certain dollar amount of change orders are to be expected, whether caused by the engineer or not, and the owner will pay for them and make no claim against the engineer. It may not be the easiest language to get into a contract but good negotiators have been able to do it. This scenario recognizes one of the practicalities of construction business that no set of drawings are expected to be perfect or their author infallible.

Federal Facilities Design Services Can Amount to 10-14% of Construction Cost
According to a report entitled Responsibilities of Architects and Engineers and their Clients in Federal Facilities Development, there is agreement among design professionals that government design fees are generally adequate and are not a barrier to achieving a quality project. A reason given it that government agencies procure a range of services outside the scope of basic design. These may include programming, site investigations, criteria development, research and other activities. These together can easily reach 10-14% of construction cost.

The "Brooks Bill" is Still the Law
Passed in 1972, it has been and still is the basis for the federal government's procurement of engineering services. To quote from the law: "The agency head shall negotiate a contract with the highest qualified firm for architectural and engineering services at compensation which the agency head determines is fair and reasonable to the government. In making such determination, the agency head shall take into account the estimated value of the services to be rendered, the scope, complexity, and professional nature thereof". It also says the government shall hold discussions with no less than three qualified firms concerning the project from which the highest qualified will be negotiated with first. Many states have "mini" Brooks Bills that closely follow the national law.

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