FAR 52.236-23 Responsibility of the Architect-Engineer Contractor

See section b

? ( Neither the Government?s review, approval or acceptance of, nor payment for, the services required under this contract shall be construed to operate as a waiver of any rights under this contract or of any cause of action arising out of the performance of this contract, and the Contractor shall be and remain liable to the Government in accordance with applicable law for all damages to the Government caused by the Contractor?s negligent performance of any of the services furnished under this contract.?

This section illustrates a negligence standard. But, does anyone know of any cases or opinions illustrating how courts have applied section b of this clause?

Section b with respect to what aspect? Section b is broad. When I retired from full-time duty, I left all my yearly books on A-E Liability and disputes in Huntsville.

Are you thinking about the effect of government design reviews, in-depth calculation reviews, etc.? Approvals of furnished designs? Are you referring to the effect of payment for designs furnished? Are you trying to recover impact costs due to errors or omissions or just make the designer fix the design?

If you are going to pursue A-E liability, you need the assistance of an attorney. This is in effect a government claim against a design professional.

Section b with respect to what aspect? Section b is broad. When I retired from full-time duty, I left all my yearly books on A-E Liability and disputes in Huntsville.

Are you thinking about the effect of government design reviews, in-depth calculation reviews, etc.? Approvals of furnished designs? Are you referring to the effect of payment for designs furnished? Are you trying to recover impact costs due to errors or omissions or just make the designer fix the design?

If you are going to pursue A-E liability, you need the assistance of an attorney. This is in effect a government claim against a design professional.

Joel, I am talking about inspection services. AE says soil is ok to build. KTR builds. Structure fails due to AE ok. Is AE liable. From the cited clause. I would say yes. But I am wondering if there are any cases on point dealing with this particular issue.

There must be a lot more to this than the seemingly simple sceanario that you provided. If you are specifically wondering whether government inspection of foundation construction would relieve the designer of professional negligence for a foundation failure, I don't see how it would unless the government actively engaged in the decision that the subgrade was adequate.

Now, in order to hold the designer liable, the standard of care in design is that of the standards of the industry under the same conditions and for the location - thus, you must establish that the design or designer's actions are negligent with respect to the standard of care. Perfection is not the expected standard of care.

There must be a lot more to this than the seemingly simple sceanario that you provided. If you are specifically wondering whether government inspection of foundation construction would relieve the designer of professional negligence for a foundation failure, I don't see how it would unless the government actively engaged in the decision that the subgrade was adequate.

Now, in order to hold the designer liable, the standard of care in design is that of the standards of the industry under the same conditions and for the location - thus, you must establish that the design or designer's actions are negligent with respect to the standard of care. Perfection is not the expected standard of care.

I am familiar with negligence and its common law elements (i.e. duty, breach, causation, dmgs). And how negligence is applied for professionals.

However, I wanted some guidance on cases dealing with this issue specifically. It seems that I will have to this research this issue on my own.

Best

Yes, sorry I can't help. I had some textbooks and yearly supplements by Wiley or some other publisher on designer liability but left them with the taxpayers when I retired.

I?m not sure if you are wanting legal cases or procedures on how to pursue Government rights/remedies referenced in FAR 52.236-23 for A-E negligence or breach of contractual duty. If the latter, maybe the USACE?s 205-page A-E Contracting guide can help. It has some well thought-out procedures laid out in Chapter 7, entitled ?A-E RESPONSIBILITY MANAGEMENT PROGRAM,? which deals with A-E liabilities:

http://140.194.76.129/publications/eng-pam...715-1-7/toc.htm

I have not visited this forum in a while. But, thank you for the reference. It looks quite interesting.