Risk Management Tips for Structural Engineers June 9, 2006

CASE Contracts Prepared by Practicing Structural Engineers
One of the attributes of CASE standard forms has always been they were prepared by practicing engineers with the participation of other interested parties where possible. They purport to be fair and objective and are not lawyer-designed documents with many protective provisions that attorneys are expected to include as a part of representation of their client. While attorneys have been involved, it has been in a supporting role in drafting and word-smithing. It is the parties that have to provide the service, the engineers, who have determined what is in the contracts. www.acec.org/coalitions/CASE/case-publications.cfm

What Isaac Newton has to Say about Engineering Contracts
You should use extreme care when modifying or supplementing a standard form of agreement because many of their provisions are interrelated. A change in one place may create an unintended result in another. Professor Newton said to every action there is an equal and opposite reaction. The addition of language may well result in creating a legal obligation. Conflicting requirements have left conscientious contractors in a quandary and those not so conscientious claiming extra compensation. When changes must occur be sure to consider all the impacts. A frequent mistake is to remove a responsibility from one party without assigning it to another. There is a reason why most standard contracts contain language suggesting the guidance and advice of a qualified attorney.

Shall Nots for the Resident Project Representative

  • The RPR shall not authorize any deviation from the contract documents or substitutions unless authorized by the engineer.

  • They shall not exceed the limitations of the engineer’s authority as set forth in his or her agreement.

  • They shall not accept shop drawings or sample submittals from anyone other than the contractor.

  • They shall not authorize the owner to occupy the project in whole or part.

  • They shall not participate in field or laboratory tests or inspections conducted by others except as specifically authorized by the engineer.
The Engineer as Interpreter of the Contract Documents
The engineer, as the initial interpreter of the requirements of the contract documents and judge of the acceptability of the work, is the first arbiter of any claims, disputes or other issues between the owner and the contractor. The engineer is not however, the final arbiter of claims and disputes between the owner and the contractor that arise out of the contract documents. The engineer’s decision may be appealed; otherwise their decision will become final and binding. There is an array of dispute resolutions available including arbitration, mediation and rent-a-judge. Mediation is generally recommended as the first step and has a remarkable track record in settling disputes. CASE Contract #2 incorporates mediation.


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