I ommitted quantity on bid form, owner wants compensated.

[pkolb]

What liability does a civil engineer have for underestimating a quantiy in preparing the contract documents bid form. Especially if there are no damages incured by the client. Double especially if the the actual contract plus additional quanity is $70,000 vs. my engieers estimate of $90,000. Triple especially if the city's own original budgeted amount for this project was $450,000.

LONG VERSION OF THE STORY:
I'm a civil consultant hired by city to design and prepare construction documents for retrofitting a BMP devise into and existing stormwater detention pond. I prepared the design and bid documents and calculated a volume of unclassified excavation for the forebay and micropool to be 700 cy. I failed to include excavation for the concrete checkdam walls and the excavation required to place rip rap. I figure that those items would have added 500 cy to the total. The contracor claimed 1700 cy total, I believe after the fact based on load count. The unit price bid on the excavation was $5.50 per cy so the total dollar overrun is small at $2750 by my estimate and $5500 by the contractors claim. The city has invited me in to talk about this because it was a large percentage overrun. I was told that they may be asking for us to share in the added cost. In my opinion there is no basis for coming after the engineer because there have been no damages incured by the city, beacause if the quanitity had been correct in the first place they still would have gone through with the project.

 

[BRIS]

Your argument is that no matter what mistakes the designer makes providing the contractor sorts them out and the client pays the contractor only for the work done the designer should have no liability!.

In evaluating the cost to the Client there are many issues to consider. For example in pricing the bid the contractor may well have noted that the excavation was underestimated and priced the item high ($5.50 per cy appears high to me but it depends on how the material was to be disposed).

If the method of measurement is clearly defined there should be no dispute in the measurement of the quantity of excavation for cut offs and rip rap so it is difficult to see how there is a difference of 1200 cy between your measurement and the contractor's measurement. If there are ambiguities in the method of measurement that may also be deemed to be your responsibility.

You also note that the actual costs including additional costs were $70,000 against your Engineer's estimate of $90,000. But you nee to compare the bid price against the outturn costs. The Client committed to the contract based on the bid price. ( A large discrepancy between the engineer's estimate and the bid price does not help your case of demonstrating professional competence).

You need to look at your contract with the Client; your responsibilities and liabilities. You will then likely have to reach agreement with your client on the true additional costs incurred. These may include additional financing costs, administration costs etc.

My advice is to agree a realistic settlement based on the actual costs to the Client.

 

[francesca]

Another factor to consider is that you say the cost overrun is $2,700. If this is the expense the city is wanting you to share, it is surely insignificant compared to the cost of creating bad blood between you and the city. How much is a continued good relationship with the city worth to you?

 

[sam74]

Were the rip rap and checkdam walls included as separate items on the bid? If so we usually specify that any estimate for a bid item includes everything from existing site to completed product. Cut and fill quantities would in your case be only for the excavation or backfill needed to obtain additional storage volume for the pond. I imagine this is specified somewhere in our general contract documents but I am not sure. I thought this was a general practice.

 

[Maury]

I agree with sam74 that you should take another look at how the specifications should be interpreted, but your subsequent conversations with the Owner and the Contractor where you have admitted to an error may have removed that option. What do the specifications say about where the excavation is to be done and for what purpose? If excavation is included in the specifications for the check dam and the riprap, then the Contractor should not have a clain for additional payment.

 

[GeoPaveTraffic]

As an owner, my take would be as follows...

If the engineer makes a mistake AND it costs me money, then the engineer should pay the extra. That said, since the quantity had to be excavated any way, i.e. there was not a design mistake. Then the engineer would at most be responsible for the extra cost do to the contractor realizing that the quantity was off when preparing his bid and jacking up the cost of that unit price to make more money. If the unit cost by the contractor is similar to other unit costs for similar work on other projects and the the unit cost submitted by other bidders, then the engineer should not be expected to pay the extra.

There is a legal pricipal called (I think) "unjust enrichment", that would prevent the Owner from getting the engineer to pay for work that would need to be done any way.

With all that said, another thing to consider as francesca pointed out, is what is the relationship with the Owner worth to you?

 

[BRIS]

I agree with francesca - given the small amount of money involved it is damage limitation you should be looking at.$5000 is peanuts to the contractor and the owner and you are the only one that will lose. You are not going to go to arbitration or court for $5000 and as GeoPaveTraffic notes your costs should be damages only not a penalty. (it depends on your contract with owner - I work as an independent consultant but my liability is generally limited to the fee received. If a client wants more then they have to pay more to cover my costs of providing professional liability insurance).

The Contractor has already been paid. We don't know what advice you give to the Owner during construction which lead to the payment but it would appear from your original post that you have already admitted the quantities were incorrectly measured by you. To now review the method of measurement included in the specifications and propose that in fact you measured the quantities correctly but you did not understand what was written in the specification has the possibility of turning a bad situation into a disaster (for your future employment).

There are many factors that need to be considered - did the Owner consult with you when the error was discovered and if so what advice did you give to the Owner. If you admitted guilt it is a little late to go back and say you misread the specification - In which case it is more than likely that the Owner will try to recover from you the money that he has now over paid to the Contractor.

Making a mistake may be excusable but negligence really depends on what advice you subsequently give to the Owner. When in a hole it is usually best to stop digging - unless of course you can get a contract where you get paid for excess excavation.

 

[RCEJD]

The question that should be analyzed is simple:

Did your negligent omission of the quantity result in damages to the City and/or the Client, and would another reasonable and prudent engineer have foreseen this and not committed the error ?

Engineers (myself included) tend to say, hey you had to pay for it anyway. However, as Geopavetraffice wisely stated, the Owner will assert, inter alia, I paid you as a professional to do your job, and it is your responsibility to identify the necessary data, etc., and you are the best person to know. Any failure to do so may rise to the level of negligence and you are responsible for any damages. It is clearly not quite this straight forward, but consider this:

Is the few thousand dollars, where you clearly made an error worth the cost of discovery, interogatories, requests for production, and maybe depo's let alone mediation, where an opposing expert may find other problems!

Alternatively, you can stand up, make a nominal contribution and appear as a responsible professional. You look good in the eyes of all parties because there will be some question whether you were really wrong, and people will see you as a problem solver and a responsible professional ... if this were a 50k issue that is one thing, but 2 or 3 k is the cost of just responding to the initial demands.

Good luck either way.