EJCDC’s documents apply a Standard of Care to all professional services performed by or for the Engineer.
Standard of Care is defined in EJCDC® E-500, Agreement between Owner and Engineer for Professional Services (2014) as follows: The Standard of Care for all professional engineering and related services performed or furnished by Engineer under this Agreement will be the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Engineer makes no warranties, express or implied, under this Agreement or otherwise, in connection with any services performed or furnished by Engineer.
A similar Standard of Care paragraph is included in EJCDC® D-700, Standard General Conditions of the Contract between Owner and Design-Builder (2016).
Standard of care provisions are preferred and supported by professional liability insurers. EJCDC’s rationale for including the standard of care in the owner/design-builder contract is twofold: (1) the engineer may be the lead in the design-build entity and thus might find its professional services to be uninsurable without a Standard of Care in the owner/design-builder contract, and (2) many design-builders seek to flow down all the provisions of their prime contract to all their subcontractors, including their design professional consultant(s). When the prime contract does not include a standard of care, some design-builders are reluctant to provide such a “carve out” to its design professional(s), thus, potentially leaving the design professional(s) without professional liability insurance coverage for their services on the project.
Under the Spearin Doctrine, an owner that retains a contractor to build a project based on construction drawings and specifications furnished by the owner, whether prepared by the owner directly or by a design professional separately retained by the owner, makes an implied warranty to the contractor that the drawings and specifications are sufficient for the project’s construction. Thus, under the Spearin Doctrine, the owner is representing to the contractor that the drawings and specifications are reasonably complete, adequate, and constructible.
The Spearin Doctrine has been tested and applied in virtually every state, but it is not an express contractual provision. Rather, Spearin is an underlying basis for many of the risk allocations in standard contract documents such as and EJCDC® C-700, Standard General Conditions of the Construction Contract. Here is a complete discussion of Spearin and Standard of Care by Kevin O’Beirne, PE, FCSI, CCS, CCCA is a Principal Engineer and Manager of Standard Construction Documents in the Buffalo, NY office of Arcadis and former Chair of EJCDC.