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13 SEP 1988
5 .  D i s c u s s i o n .  Each OICC/ROICC will review all change orders coded
DSGN and EROM to determine the circumstance and cause for the design
d e f i c i e n c y and consider the following questions to determine A-E
a .  I s a construction modification, or new contract, needed to
c o r r e c t a design deficiency or an error in the plans and/or
b .  Did the design deficiency result from the A-E's n e g l i g e n t
failure to meet the standard of care reasonably associatedw i t h t h e
A-E profession, o r from a breach of contractual duty? Failure to
e x e r c i s e normal skill and competence is usually negligence.
H o w e v e r , you must consider representations of special skills and
a b i l i t i e s made by the A-E, and relied upon, in the selection
p r o c e s s .  I f negligence is involved, clearly state in the
documentation of your review.  In order for the Government to
c o l l e c t for damages, an A-E's performance must be determined to be
c .  Is the deficiency one of omission? Can the work be added at
e s s e n t i a l l y the same cost as if it was included in the original
c o n t r a c t requirements?
d .  Has the Government suffered actual damages as a result of
t h e design deficiency?
6 .  A c t i o n .  Each OICC/ROICC shall process potential A-E liability
a c t i o n s per the policies and general procedures of references (a)
a n d (b).  T h e following outline procedure is provided to assist the
OICCs in taking action.
a . For each design deficiency the AROICC/ROICC shall (1) review
t h e circumstances involved, (2) consider the extent to which the A-E
m a y be liable for correction of the deficiency or other actual
d a m a g e s , e.g., e x t e n d e d overhead costs, and (3) assure that it is
c o s t effective to pursue recovery of damages.  OICCs may call the
Director of Construction, `Code 05, OICC FE for assistance in making
t h i s determination.
b .  I f A-E liability is not pursued, prepare a statement
d e t a i l i n g the reasons supporting this decision, have it signed by
t h e Contracting Officer and file it in both the design and
c o n s t r u c t i o n contract files.  Do not pursue errors of omission since
the added cost would `have been in the original bid if the design had
i n c l u d e d the work, unless there other considerations, such as,
extended overhead.
c .  T o pursue liability action, the AROICC/ROICC shall send a
memo in the format of enclosure (1) to the Project Design Engineer
( P D E ) , via Code 05 (or copy to).


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