Quantcast Responsibility of A-E Contractor

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DEPARTMENT OF THE NAVY
NAVAL FACILITIES ENGINEERING COMMAND
IN REPLY REFER TO
200 STOVALL STREET
ALEXANDRIA VA 22322-2300
4334.2
022B/AEDELAY1
10 OCT 90
From:
Commander, Naval Facilities Engineering Command
Subj:
RESPONSIBILITY OF A-E CONTRACTOR
Ref:
(a) FAR 36.608, Liability for Government Costs Resulting
from Design Errors or Deficiencies
( b ) FAR Clause 52.236-23, Responsibility of the A-E
Contractor
( c )  FAR 36.609-2, Redesign Responsibility for
D e s i g n Errors or Deficiencies
1.  This letter provides guidance on-the recovery of damages
caused by A-E contractor's untimely performance of post
construction award services (PCAS).
2.  The NORTHNAVFACENGCOM Claims Branch requested that guidance
be provided on whether reference (a) can be used by the
g o v e r n m e n t as a basis for holding an A-E contractor liable for
additional costs resulting from an A-E caused delay in reviewing
s u b m i t t a l s .  The guidance was requested because reference (a) is
somewhat vague as to whether it covers PCAS such as shop drawings
review.  A review of references (a) and (b) indicated that
reference (b) can be used as a basis for recovery of damages from
A-Es due to untimely review of submittals and for seeking
recovery for damages caused by the A-E contractor's negligent
performance of PCAS.  T h e rationale for the foregoing opinion and
f o r whether negligence falls within the scope of the clause
follows:
a.  R e f e r e n c e (b) is a required clause for all A-E
c o n t r a c t s .  S e e subpart (b) to reference (c).  There is no Stated
exception for A-E contracts involving PCAS, nor is there an
alternate provision for use when PCAS is involved.  Consequently,
r e f e r e n c e (b) is included in all A-E contracts, including those
which call for PCAS.
b .  R e s e a r c h of existing case law provided no insight
regarding whether negligent or untimely performance of PCAS
f a l l s within the scope of reference (b), However, the clause
i t s e l f appears to provide the answer to the question.
Subparagraph (b) provides that the contractor shall be and
remains liable to the government in accordance with applicable
law for all damages to the government caused by the contractor's





 


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