Residential job never took off due to contract language
Residential job never took off due to contract language
(OP)
I work mainly doing precast structural design work these days with very little consulting work. However, someone found my name and asked me to take on an interesting side job doing the structural design for a high-end residential home. My boss gave me permission to do it on my own time but under the umbrella of the company so as to use the professional liability insurance (and as long as I kicked back a percentage of the fee for their risk). Seemed reasonable and given that I wouldn't have the usual overhead of a normal consulting office I offered what I felt was a fair price (not too low and not too high).
Unfortunately, the home owner is also a lawyer or someone with a legal background and he balked at my contract language. We negotiated back and forth but, in the end, he did not want to agree to a few of my clauses claiming they created a moral hazard for him. Namely the clauses regarding indemnification; such as the Good Samaritan clause where he would indemnify me for any Good Samaritan acts, or the limitation on my liability where he would indemnify me for all claims above the limits of what my professional liability would cover (which this already was a concession as the original wording was much more favorable to me).
In the end we could not agree to modify the contract sufficient for the client and so they passed on accepting my offer. As this is entirely a side job I have no real loss missing out on this job but given that this is the first time I've ever seriously had to debate contract language I'm left wondering if I was unreasonable or if he was? Reading through much of the information I could find online regarding professional contracts I seriously don't believe it would have been a wise move to accept the clients proposed modifications to the contract language. Doubly so as this was a side job that could potentially put my day-job company at serious risk on top of risk to my own assets.
If I had more need to get this job I probably would have brought in a lawyer to sort it out. But, without getting a lawyer involved, what do you guys think of this situation?
Unfortunately, the home owner is also a lawyer or someone with a legal background and he balked at my contract language. We negotiated back and forth but, in the end, he did not want to agree to a few of my clauses claiming they created a moral hazard for him. Namely the clauses regarding indemnification; such as the Good Samaritan clause where he would indemnify me for any Good Samaritan acts, or the limitation on my liability where he would indemnify me for all claims above the limits of what my professional liability would cover (which this already was a concession as the original wording was much more favorable to me).
In the end we could not agree to modify the contract sufficient for the client and so they passed on accepting my offer. As this is entirely a side job I have no real loss missing out on this job but given that this is the first time I've ever seriously had to debate contract language I'm left wondering if I was unreasonable or if he was? Reading through much of the information I could find online regarding professional contracts I seriously don't believe it would have been a wise move to accept the clients proposed modifications to the contract language. Doubly so as this was a side job that could potentially put my day-job company at serious risk on top of risk to my own assets.
If I had more need to get this job I probably would have brought in a lawyer to sort it out. But, without getting a lawyer involved, what do you guys think of this situation?
Professional and Structural Engineer (ME, NH)
American Concrete Industries
www.americanconcrete.com





RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
Dave
Thaidavid
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
I mildly cautioned the client about how I felt these were common contract clauses in the hope of convincing him that he's going to have trouble finding an engineer of quality and who will agree to his terms. Oh well, I parted with some structural advice on ponding, snow drift loads, and floor vibration so hopefully he'll know the right questions to ask to find out if the structural engineer he chooses is on the level.
Professional and Structural Engineer (ME, NH)
American Concrete Industries
www.americanconcrete.com
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
TME....attached is a little booklet I wrote quite some time ago for contract review....incidentally....you were correct to do what you did. Even no contract is better than a bad contract! Agree with hokie66.
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
Professional and Structural Engineer (ME, NH)
American Concrete Industries
www.americanconcrete.com
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
Lawyer: " ...created a moral hazard for him."
That's awesome.
RE: Residential job never took off due to contract language
Professional and Structural Engineer (ME, NH)
American Concrete Industries
www.americanconcrete.com
RE: Residential job never took off due to contract language
Mike McCann, PE, SE (WA)
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
then again I sometimes think of the poor guy trying to sell a mattress to a young engineer... about 30-40 mattresses were laid out in order of stiffness in the warehouse.... and that engineer had to try out a number of them in the stiffer end of the spectrum, again, and again, questioning stiffnesses, wondering if they were in the correct order. sometimes I wonder if that guy runs the other direction when an engineer comes into his store.
Ron, excellent document. I'm gonna improve mine after reading that.
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
Professional and Structural Engineer (ME, NH)
American Concrete Industries
www.americanconcrete.com
RE: Residential job never took off due to contract language
I had 3 contractors out to my place to bid on an addition and upgrades throughout. I explained that I was a structural engineer and would most likely be there on a regular basis checking out their work. All 3 contractors found a reason to NOT bid on the project. Oh well - I thought it was only fair for me to warn them in advance. I never did get that additional built :).
RE: Residential job never took off due to contract language
I have no suggestions on your case - I too just had a fence contractor walk when he found out I was an engineer. A Fence!
I would present your client with the Contract YOU want and when client objects, present him with the Full Premium Channel Contract, with total and complete insurance features to please the entire family.
RE: Residential job never took off due to contract language
I can understand a contractor raising a price if working for an engineer but walking out of a job entirely seems excessive. Especially for a fence. Still, I would happily warn a contractor up front that I'm an engineer and that they'll be building to a set of drawings and to expect some inspection to occur during construction. If they can't handle that then they're in the wrong line of work and/or I don't want them building for me anyway.
As for my situation, I actually did offer them a full "premium" contract with an increase in my fee, additional construction inspections, and increased scope. Still wasn't "acceptable".
Professional and Structural Engineer (ME, NH)
American Concrete Industries
www.americanconcrete.com
RE: Residential job never took off due to contract language
RE: Residential job never took off due to contract language
Professional and Structural Engineer (ME, NH)
American Concrete Industries
www.americanconcrete.com