PCCA Journal 3rd Quarter 2013 - page 15

PCCA Journal|3
rd
Quarter 2013
15
U
nwary contractors may unknowingly accept
design responsibility on projects. Contractors
who contribute to or make design decisions
vastly increase their exposure on projects.
Understanding how the law treats contrac-
tors and engineers and identifying the consequences to
contractors who perform design services allows contractors
to allocate or minimize design risk for projects.
The law has historically held contractors and engineers to
different standards. Contractors must perform their work in
a good and workman-
like manner. Profes-
sional engineers must
exercise that degree of
care that a professional
engineer of ordinary skill
and prudence would
exercise under the same
or similar circumstances.
This separation between
contractor and engineer
is underscored in the
implied warranty of adequacy of design documents. That
warranty provides that an owner warrants the adequacy and
sufficiency of the plans and specifications it tenders to a
contractor. This warranty was articulated in a 1918 Supreme
Court case,
United States v. Spearin
, 248 U.S. 132 (1918).
In that case, a contractor agreed to build a dry dock that re-
quired relocation of a sewer. Relying on the plans and specifi-
cations provided by the government, the contractor relocated
the sewer that failed because a dam was not identified on the
government’s plans and specifications. The contractor sued
the government for costs and lost profits.
The Spearin Warranty
On appeal, the United States Supreme Court held that a
contractor is not liable for the consequences of defects in
specifications provided by the owner. The Court explained
that by prescribing the character, dimensions, and location of
the work to be done, the owner “imported a warranty that,
if the specifications were complied with, the [work] would
be adequate.” This implied warranty, the Court noted, is
not overcome by general clauses requiring the contractor to
visit the site, review plans, or to assume responsibility for
the work until completion
and acceptance. Commonly
known as the
Spearin
war-
ranty, most jurisdictions in
the U.S. have adopted the
Spearin
warranty in whole or
in part.
The
Spearin
warranty fa-
vors the contractor, shielding
it from liability for design er-
rors. If the owner’s engineer
improperly surveys a project
and the contractor relies on staking based on the erroneous
survey, the
Spearin
warranty should absolve the contractor
from liability for the survey.
But the
Spearin
warranty is not absolute. As alternative
delivery methods evolve and construction techniques, equip-
ment, and materials become more complex, the line between
design and construction is becoming more blurred. Owners
and engineers are delegating more design responsibility to
contractors on projects.
Design delegation can be explicitly set forth in a contract.
For instance, design-build contracts specifically delegate all
When Contractors Become
Engineers: The Risk of Design
Delegation to Contractors
By Matthew Straub
Legal Watch
Continued on page 16
Any contractor that proposes changes to the Construction
Sheets and then initials the approved changes is likely going
to share responsibility with the engineer for that design
change despite that lack of any explicit design delegation.
Contractors should strongly consider whether a change to
the Construction Sheets is necessary, rather than “desirable.”
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