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Posts posted by charles

  1. 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.


  2. 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.

  3. FAR 52.236-23 Responsibility of the Architect-Engineer Contractor

    See section b

    ? (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?

  4. Charles,

    The 750K limit applies to funding construction projects with OM. If funding a repair/maintenance project, those limits do not apply. Determination of whether the project is construction vice repair depends on (assuming you are a DOD component) the regulatory definitions of construction and repair that have been adopted by your branch. Under the DODFMR, the term ?repair? means to restore a real property facility, system, or component to such a condition that the military department or agency may use it effectively for its designated functional purpose, but "repair" does not include additions, new facilities or functional conversions (those would be examples of construction which are subject to funding limitations). However, in addition to the DODFMR, you would also need to look at your service specific regulations on defining construction. When in doubt, consult with your agency fiscal counsel regarding the specifics of your project and any funding limitations pertaining to it.


    Thank you for the response. However, my question is asking whether SRM may be an exception to O&M, perhaps similar to CF-CERF, not the basic rules of O&M when applied to construction.

    Also, not all agencies have fiscal counsel. Besides, I am asking for your opinion.

    Best regards,

  5. The Facilities Sustainment, Restoration and Modernization (SRM) program, (formerly Real Property Maintenance) provides funds to keep the Department?s inventory of facilities in good working order, (i.e., day to day maintenance requirements).

    In addition, it provides resources to restore facilities whose age is excessive or have been damaged by fire, accident, or natural disasters and alternations of facilities to implement new or higher standards to accommodate new functions or mission.

    The demolition program provides funds to demolish and dispose of obsolete and excess structures of which some have been around since World War II. The funds depicted above do not include amounts financed through the Working Capital Funds for sustainment and restoration of the Fund activities.

    Costs of military personnel assigned to SRM activities are also excluded, as SRM requirements are funded in the RDT&E and Military Construction accounts.

    Thanks Buyerman!

    So my follow-up questions deals with the bolded sentence. Does this mean I will be able to use SRM/O&M money to fund a restoration project where it exceeds 750k? Certainly restoration is more like construction than maintenance and repair. Does SRM funding allow restoration projects up to 7.5 mil without congressional approval?

    Joel or any other construction persons. What are your thoughts?

  6. HYPO Facts:

    KTR awarded project for 100k to build building. KO obligates award but funding doc has only 70K. KTR is paid 50K in progress payments. Later it is determined KO has violated the ADA.

    What amount of money is the KTR entitled to keep? Will the government have a claim to reimburse the KTR only on the basis of quantum meruit or will the contract be treated as a T4C?

    Please discuss.

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