36.608 Liability for Government costs resulting from design errors or deficiencies
Source: FAR 36.608 on acquisition.gov
Architect-engineer contractors can be held financially liable for Government costs resulting from errors or deficiencies in their designs, and contracting officers must document and enforce recovery when appropriate.
Overview
FAR 36.608 establishes that architect-engineer (A-E) contractors are responsible for the professional quality, technical accuracy, and coordination of their contracted services. If errors or deficiencies in A-E designs result in additional Government costs—such as construction contract modifications—the A-E firm may be held financially liable. The contracting officer, with input from technical and legal advisors, must assess the extent of the contractor's liability and enforce recovery of costs if it is in the Government's interest or if the recoverable amount exceeds administrative costs. The contracting officer is also required to document the rationale for recovering or not recovering costs in the contract file.
Key Rules
- A-E Contractor Responsibility
- A-E contractors must ensure the professional quality and technical accuracy of their work and are liable for errors or deficiencies.
- Assessment and Enforcement of Liability
- Contracting officers must evaluate and, if appropriate, enforce recovery of Government costs resulting from A-E design errors, documenting the decision process.
Responsibilities
- Contracting Officers: Assess liability, seek technical/legal advice, enforce recovery if warranted, and document decisions.
- Contractors: Deliver accurate, coordinated, and high-quality designs; may be liable for costs due to errors or deficiencies.
- Agencies: Provide technical and legal support to contracting officers; ensure proper documentation and enforcement.
Practical Implications
- This section protects the Government from bearing costs due to A-E design errors, incentivizing contractors to maintain high standards. It impacts contract administration, especially when design errors lead to costly modifications. Common pitfalls include inadequate documentation or failure to enforce liability when warranted.
Architect-engineer contractors shall be responsible for the professional quality, technical accuracy, and coordination of all services required under their contracts. A firm may be liable for Government costs resulting from errors or deficiencies in designs furnished under its contract. Therefore, when a modification to a construction contract is required because of an error or deficiency in the services provided under an architect-engineer contract, the contracting officer (with the advice of technical personnel and legal counsel) shall consider the extent to which the architect-engineer contractor may be reasonably liable. The contracting officer shall enforce the liability and issue a demand for payment of the amount due, if the recoverable cost will exceed the administrative cost involved or is otherwise in the Government’s interest. The contracting officer shall include in the contract file a written statement of the reasons for the decision to recover or not to recover the costs from the firm.