December 2018 – Law and Civil Engineering

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Be Careful What You Promise
by Eugene Bass

I was often impressed with the perception that the amount of time collectively spent by consultants in preparing and presenting proposals for engineering investigations seemed to exceed the total fee that would be paid to the consultant eventually hired. It also appeared, given the obviously competitive situation, that to win the competition, the more confidence a consultant expressed that it could assure a more spectacular result, the greater the advantage that consultant would have. The bottom line was that the process seemed to encourage consultants to represent that they could achieve results which, in reality, were not as clearly possible as represented. Once the consultant got the project and if it turned out that represented results were not totally attainable, a process of re-framing of the initial representations and cultivating an “understanding” client might ensue. The project would continue to the end with “the best result under the circumstances” achieved.

It occurred to me that a “less understanding” client could argue that it was induced to enter into the contract with the consultant on the basis of statements that might be construed as “misrepresentations” delivered at the proposal stage of competing for the project. Of course, the consultant could argue that the “misrepresentations” were not really misrepresentations but merely “statements of professional opinion” that the consultant believed were valid. The resolution could end up being reached after a long involved trial including the competing efforts of creative and imaginative lawyers and a cast of other consultants supporting the contentions of both sides. Needless to say, such a trial would cost a great deal of money and damage the reputation of the consultant “defendant,” regardless of the outcome.

The general rule is that an engineer must perform services in a “non-negligent” manner. It must be remembered is that any engineer can promise to perform at a level higher than “non-negligent” and can be held to that level of performance. For example, a “guaranteed” result will be interpreted as such. Any representation that the project will comply with “all applicable laws and regulations” will foreclose the possibility that reasonable and competent engineers might differ as to the application of those laws and regulations. Examples are endless.

The point is that in presenting a proposal, the consultant must be aware of the possibility that what is represented as an outcome, may not be possible, with certainty, and that if the anticipated result is not achieved, there is the potential for a client, who feels it was misled at the proposal stage, with justification, to sue the consultant.

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