Additional Services for Contractor Error

[strguy11]

How do most of you handle this case? We explicity state in our contracts that services due to contractor error are an additional service. However, my question is whether or not you stop the project, and get conractor sign off (in addition to your client).

We are having difficulty collecting from a client (Architect) because they are saying they cant backcharge the contractor, because they did not have the ability to review our claim beforehand.

What is your typical practice? We normally perform these services on an hourly basis.

 

[csd72]

Send an email to the contractor with an hourly rate and an expected number of hours and copy in the architect. That way they cant claim that they didnt know about it beforehand.

I usually try to make sure that I am not the cause of delay.

 

[JAE]

Our first inclination is to tell the contractor that they must provide an engineered solution to the problem, submitted to us for review and approval.

We tell them that they can hire any competent engineer to develop (and seal) the solution and we would be happy to do so if they so desire. However, at that point we always have to be careful - there is an intriguing potential conflict here because on one hand we are the EOR and want to have some control over the way the building is constructed. On the other hand, getting paid by two sources for the same project can be either against the engineering laws or simply awkward.

 

[csd72]

JAE,

I dont see where the conflict is, technically the contractors are working for the same people you are.

Anyway, getting paid for these things by contractors is common place where I come from.

 

[msucog]

get a contract since you're contract state the terms of the contract. contractors often expect engineers to sign an agreement similar to what they sign...essentially guaranteeing a product. engineers should guarentee their service.

if it goes to court and you performed work specifically for the contractor, then that contract (or lack there of) controls the case when it gets ugly. i make the contractor sign the same agreement that the client signs. if there's not enough time or if the contractor resists, i'll invoice my client and note that the work is for "contractor services". then they can get/hold the money from the contractor while i'm still covered by my contract.

and getting paid from two sources on the same project is not illegal...unless you do something silly like perform one instance of work but charge both parties entirely for the same work. working for two sources should expect two contracts.

 

[JAE]

csd72
It depends on the form of contract that the project is under. In the design-bid-build format, the A/E is contracted directly with the owner, separate from the owner-to-contractor contract.

In that case, the A/E has a duty to the owner to provide professional, ethical, services and look out for the owner's best interests when dealing with the contractor. In fact many design firms market themselves as being on top of issues and protecting the budget, quality of work, etc. If this design firm then has a second contract with the Contractor, there could very easily be concern over who's interest the A/E is really looking out for.

In a design-build contract, the A/E works for the Contractor so there would then not be any direct conflict.