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elgueromeromero

Responsibility of the A-E Contractor

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I was trying to refresh my memory on A-E contracts, and specifically, FAR 52.236-23, and I found the following from the CON 243 course materials under the section titled FAR 52.236- 23, Responsibility of the Architect-Engineer Contractor:

"For the Government to recover any costs caused by the A-E, there are certain things that the government must prove. Some of the more important issues are:

  • There must be proof that there was, in fact, a design error or omission
  • There must be proof that the error or omission was a result of the firm's negligence. Negligence is defined...(goes on)
  • There must be proof that the government suffered damages as a result of the error or omission. The Government also has a responsibility to mitigate any damages it incurs as a result of the error or omission.
  • There must be proof of "no proximate cause." This means that the error or omission by the A-E firm (and the associated damages) are solely the responsibility of the contractor and no action by others contributed to the additional costs to the government.

Regarding the last part about "no proximate cause"--does anyone know where this info comes from? If so, can someone please provide a reference to the applicable regulation or case? I can't seem to find anything in the FAR or case law that supports this statement, and it's relevant to a situation we're dealing with.

BTW, I tried submitting this question to DAU's "Ask a Professor" since I'm specifically asking about info from their course, but for some reason couldn't get the question to submit.

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Guest Vern Edwards

 

6 minutes ago, elgueromeromero said:

Regarding the last part about "no proximate cause"--does anyone know where this info comes from? If so, can someone please provide a reference to the applicable regulation or case? I can't seem to find anything in the FAR or case law that supports this statement, and it's relevant to a situation we're dealing with.

See Parsons Main, Inc., ASBCA 51355, 02-2 BCA ¶ 31886:

Quote

To prevail in a defective design claim under the FAR 52.236-23 RESPONSIBILITY OF THE ARCHITECT-ENGINEER CONTRACTOR clause, the Government has the burden of establishing three elements of proof: (1) Did the construction contractor substantially comply with the A-E's design in the manner intended by the A-E? (2) Did the A-E exercise its skill, ability and judgment negligently, instead of with reasonable care, with respect to the design? (3) Was the A-E's defective design the proximate cause of damage to the Government? See Brunson Associates, Inc., ASBCA No. 41201, 94-2 BCA ¶ 26,936 at 134,152; Ralph M. Parsons Co., ASBCA No. 24347, 85-1 BCA ¶ 17,787 at 88,901-02, recon. denied, 85-2 BCA ¶ 18,112; Benjamin S. Notkin & Associates, ASBCA No. 29336, 86-1 BCA ¶ 18,535 at 93,123 (Gov't has burden of proof of negligent A-E design claim).

 

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