Conflicts between Standard Specifications and Standard Contracts
The conflict between the language of standard specifications, manuals, codes and manufacturer’s instructions and custom or standard contracts may frequently result in a duty or responsibility falling through the cracks and has provided fodder for attorneys seeking to make a claim stick to an engineer. The best approach is to state in the contract that no provision of any referenced standard etc shall be effective to change the duties and responsibilities as set forth in the contract documents.

Giving Confidence to the Owner
Experience has shown that many owners benefit from the design professional observing the quality of the work as it progresses. Constructing the facility in accordance with the contract documents to meet the quality called for is the contractor’s responsibility…and they warrant or guarantee their work will be in agreement with the drawings and specifications. The observation of the engineer is not a guarantee and the best protection the owner can get is the integrity of the contractor and in most cases contractors perform their work admirably. The contractor is required to provide proper and safe access to allow the engineer and resident staff to do their jobs.

Dangerous Language in the Specifications
Unless otherwise agreed to most contracts will contain language that the engineer is not to supervise or direct the work. Contrary language is sometimes found in the specifications to the effect that the work will be performed as ordered or as directed. These terms are only intended to indicate the engineer’s review of the work. If the engineer does in fact order or direct the contractor’s work, he or she may find themselves exposed to legal liability for performing acts which were properly the responsibility of others.

Rejecting Defective Work
It is the engineer’s right and duty to reject what, on the basis of their observation, they believe to be defective work. With that right is the corresponding duty to be observant during visits to detect defective work. There is no assurance that every aspect of the work has been or can be observed or checked for defects, but the engineer must check very closely in the key and essential aspects of the work as it progresses. There is no clear agreement on the extent of the observation and observation is considered something less than inspection. In most contract language one of the accepted reasons for the engineer refusing to recommend a progress payment is that the work is defective.

Words to the Wise: When one volunteers to do what is not required, unanticipated legal consequences may follow.

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