Liability protection when providing engineering for material supplier 1

[LOTE]

I am in contract negotiations to provide shop drawings for a material supply company on DOT projects. They have a patented system and they are required to submit shop drawings. They sell the product directly to the contractor, not the owner.

My question is: what can I include in my contract with the material supplier, or I require that the material supplier include in their contract to the contractor, that would protect me from being sued by the contractor?
I am not referring to E/O type liability, but say I require the contractor to perform a certain activity during the install of the product (like field weld something) that causes them to incur costs they did not plan for, what can I or the material supply company do to prevent them from suing me for that cost when I don't have a contract with the contractor?
The material supply company is agreeable to assuming these risks since it is their product, but I'm not sure what language or in whose contract it should go in.

I know, run it by a lawyer. I do plan to do that before signing, but I'm trying to do a little legwork while we are still negotiating before running it by the lawyer.

 

[phamENG]

Given that this seems to form a pretty fundamental core of your agreement, you may want to talk to the lawyer first and then negotiate. If the contract amount can't cover an extra 30 minute consultation with your attorney, the contract is too small.

 

[IRstuff]

Are you responsible for estimating their cost?

You do realize that there is NOTHING that prevents anyone from suing you for anything, right? The only issue you can control is whether you prevail, or not.

TTFN (ta ta for now)
I can do absolutely anything. I'm an expert!

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[CWB1]

I dont see what grounds there would be to sue over. A contractor purchasing material isnt under any obligation to follow the manufacturer's nor your guidelines, nor can the DOT or any other agency legally require it. Even if they pay for the manufacturer's or your design services, the contractor cant expect either's pricing to be based upon their own budget. This is why various types of T&M contracts exist.

 

[Ron]

@CWB1....disagree!

Codes typically require that manufacturers instructions be followed. Therefore to deviate would be a violation of the Building Code. DOT's can be a little different but often require the same.

 

[dik]

Ya Ron, big time... that approach can get you into real serious trouble.

Rather than think climate change and the corona virus as science, think of it as the wrath of God. Feel any better?

-Dik

 

[LOTE]

pharmENG, I prefer to at least know whose contract I need to be looking at before I approach my lawyer.

IRstuff, I am not estimating their materials. Language in contracts is at least a hurdle in our sue happy culture.

 

[CWB1]

Codes typically require that manufacturers instructions be followed...

...unless appropriate engineering and/or testing is completed otherwise. The OP is talking about a custom engineered product, not COTS parts, so engineering and/or testing will need to be completed regardless. The decision of who to use for that remains with the contractor bc its illegal for govt to require what you're suggesting. This is no different than a critical nonstandard bolted joint, nobody calls the fastener manufacturers bc they can hire the local indy lab at 1/10th the cost and have a test report back in 1-3 days.

 

[Aesur]

@LOTE, would not the correct course of action be to have any legal disclaimers in your contract with your client (supplier) and then it is up to them and their lawyer to add the appropriate language to their contracts with the contractor? I would definitely have it in my contract with my client and not rely on their contract which could be edited without your knowledge. Additionally, note that regardless of what the contract says, even if it says your client will indemnify you and cover any legal costs in exchange for say a lower fee from you, this won't stop a lawsuit and many times insurance prefers to settle and up your premiums versus fight it because it's cheaper many times to just settle. I personally would never lower my fee in exchange for a promise of covering my legal costs or agreeing to not sue me, etc..

 

[Aesur]

Wanted to add that it would be good to review shop drawings for wood trusses to get an idea of how their engineers try to cover themselves, ie never looking at structural plans, only reviewing the component, etc..

 

[dik]

For the last couple of years, I've been providing engineering services for several steel fabricators and sealing shop drawings for connections, etc. I have a list of 'Exceptions to Contract' that I add to my review since I often don't have a complete set of documents, specs, change orders, etc. (I really don't want them because of the added work). If there is an item that I've used that, I know is different than what the drawings show, I ask for the EOR/Arch to confirm the change. This often happens when 50 Ksi end plates, stiffeners, angles, channels, etc. are spec'd but 44 Ksi material is used by the fabricator. I check that the 44 Ksi stuff works.

Rather than think climate change and the corona virus as science, think of it as the wrath of God. Feel any better?

-Dik