A-E Responsibilities Presented By Gary Heidle MSI Universal, Inc.

1. A-E Responsibilities Presented By Gary Heidle MSI Universal, Inc.

2. A-E Responsibilities Learning Points • FAR Requirements • Negotiations • Type A, B and C Services • What is Expected from Both Parties • A-E Evaluations • Requests for Equitable Adjustments • A-E Liability

3. FAR Requirement FAR 36.608 Describes the A-E responsibility. FAR clause 52.236-23, “Responsibility of the Architect-Engineer Contractor,” (1) The A-E firm shall be responsible for the professional quality, technical accuracy, and coordination of all designs, specifications, and other services it furnishes. (2) The A-E firm shall, without additional compensation, correct or revise any errors or deficiencies in its work. (3) The Government’s review, approval or acceptance of the A-E services is not a waiver of any of the Government’s rights. (4) The A-E firm shall be and remain liable for all damages to the Government caused by its negligent performance.

4. FAR Requirement 36.609-1 Describes the requirement to design within the maximum Construction Cost (MCC) 52.236-22  Design Within Funding Limitations (1) Price of Construction shall not exceed MCC (2) If A-E finds that he cannot design within the MCC must promptly notify the government (3) If Price exceeds MCC, A-E must redesign at no additional fee

5. Responsibility An A-E is responsible for the quality of its services and to perform at a standard of reasonable care, skill and diligence that one in the A-E profession would ordinarily exercise under similar circumstances for the full extent of the contract services being negotiated.

6. Negotiations Both Parties Responsibilities • Negotiate in good faith • Share information and reach agreement on the understandings, expectations and intentions of both parties • Fully define requirements of the contract • Discuss A-E quality control expectations • Discuss Government evaluation process • Discuss “what if” procedures when things are not going right

7. Negotiations If during negotiations the government insists that the A-E reduce services below the level that the A-E feels is needed to produce a professional product, the A-E has the responsibility to bring it to the attention of the government and to terminate negotiations if reasonable accommodations cannot be made.

8. Type A Services A-E Responsibilities • Investigate Project Requirements • Interview facility users • Review government documents and regulations • Investigate site requirements • Develop the Design Intent Document • Fully catalogs the government’s requirements • Develop Project Concept

9. Type A Services A-E Responsibilities • Develop Project Concept • Test accuracy and feasibility of scope and budget • Presents findings and recommendations in logical format • Proposes conceptual solutions to project requirements and challenges

10. Type A Services A-E Responsibilities • Provide Quality Control of Services Performed • Should not expect or wait for government to catch errors or omissions

11. Type A Services Government Responsibilities • Provide all known information to A-E • Review all A-E submittal documents with eye towards A-E understanding of Government requirements • Resolve all known differences

12. Type B Services A-E Responsibility • Design the project • Meet project requirements • Scope • Functionality • Maintainability • Code compliance • Safety • Energy conservation • Sustainability • Schedule • Budget

13. Type B Services A-E Responsibilities • Quality Control • Review the submittal before any submission • Completeness • Accuracy • Constructability • Correct errors or omissions • Discovered in design review • Discovered in construction A-E IS RESPONSIBLE FOR THE TECHNICAL ADEQUACY OF THE DESIGN

14. Type B Services A-E Responsibilities • Answer RFIs • Those related to design errors, omissions and ambiguities • This is required whether the A-E is retained for Type “C” services or not

15. Type B Services Government Responsibilities • Provide Information to A-E • Review Submittals for completeness and general compliance with government requirements • THE GOVERNMENT DOES NOT PERFORM A TECHNICAL REVIEW

16. Type B Services Government Responsibilities • Review Submittals (Con’t) • Scope and Budget • Functional Requirements • Energy Policy • Sustainment • Maintainability

17. Type B Services • Government Responsibilities • A-E Evaluation • Fair, Honest and Timely • If A-E has done a fantastic job give a fantastic rating • We want them designing more facilities for the taxpayers • If otherwise rate accordingly • Protect the taxpayers • Use ACASS system

18. Type C Services A-E Responsibility • Review Submittals • Answer RFIs • Periodic site visits for overall compliance with design requirements • Attend Meetings • Progress meetings • Monitor schedule. CPM and any potential or actual delays

19. Type C Services A-E Responsibilities (Depending on Terms of Contract) • Assist Government in contract management and technical decisions • Make timely reviews and recommendations to contractor submittals and RFIs • Make timely corrections to drawings and specifications • Make notes and minutes (if required) for all site visits and meetings attended • Make detailed quality assurance inspections

20. Type C Services Government Responsibilities • Keep A-E Informed • Provide project access • Site • Correspondence relating to services provided by A-E • Meetings • Decisions

21. Type C Services • Government Responsibilities • A-E Evaluation • Fair, Honest and Timely • If A-E has done a fantastic job give a fantastic rating • We want them involved with more facilities for the taxpayers • If otherwise rate accordingly • Protect the taxpayers • Use ACASS system

22. A-E Evaluations Overriding Principal of Evaluations A-E aren’t given an Evaluation They earn it

23. A-E Requests for Equitable Adjustment • A-E have same entitlement as any other contractor • Review request with open mind • Review negotiations • Is the request outside the mutual expectations established at the time of negotiations? • Has there been a delay outside of the A-E control? • Has the construction contractor caused a changed condition that could not have been reasonably anticipated at the time of negotiations?

24. A-E Requests for Equitable Adjustment What did both parties reasonably expect when we signed the contract?

25. A-E Requests for Equitable Adjustment Remember Original Negotiations where we: • Negotiated in good faith • Shared information and reached agreement on the understandings, expectations and intentions of both parties • Fully defined requirements of the contract • Discussed A-E quality control expectations • Discussed Government evaluation process • Discussed “what if” procedures when things are not going right

26. A-E Liability Typical examples of A-E liability are when, due to an A-E design error or deficiency, modification of an ongoing construction contract is required or there is a design related failure after construction. But you must be able to show negligence

27. A-E Liability An A-E firm may also be liable for Government damages arising from failure to design within the funding limitations (FAR 36.609-1 and 52.236-22) or to comply with the contract schedule or technical provisions. In all such instances, FAR 36.608 directs the KO to “consider the extent to which the architect-engineer contractor may be reasonably liable,” and to “enforce the liability and collect the amount due, if the recoverable cost will exceed the administrative cost involved or is otherwise in the Government’s interest.”

28. A-E Liability FAR 36.608 directs the KO to “consider the extent to which the architect-engineer contractor may be reasonably liable,” and to “enforce the liability and collect the amount due, if the recoverable cost will exceed the administrative cost involved or is otherwise in the Government’s interest.”

29. A-E Liability Each of the following three questions must be answered affirmatively for an A-E firm to be liable for damages: (1) Did the firm make an error or omission? (2) Did the error or omission result from the firm's negligence, or from a breach of contractual duty? (3) Has the Government suffered damages as a result of the error or omission?

30. A-E Liability The following legal principles should be considered when deciding if an A-E firm is liable: (1) Negligence. Negligence is the failure to meet the standard of reasonable care, skill and diligence that one in the A-E profession would ordinarily exercise under similar circumstances.

31. A-E Liability (2) Burden of Proof. In order for the Government to prevail in a claim against an A-E firm, it must be able to prove that the firm was negligent and that the error or omission by the A-E firm was the cause of the damages.

32. A-E Liability (3) Comparative Negligence. The doctrine of comparative negligence provides that the Government is not barred from any recovery of damages if it is also negligent, but that there will be an apportionment of damages or responsibility in proportion to the relative fault of the parties involved.

33. A-E Liability (4) Mitigation. The Government has a responsibility for minimizing damages resulting From an A-E firm's deficiencies. The firm must be notified promptly when a deficiency is discovered by the Government and provided a reasonable opportunity to correct its work.

34. A-E Liability (5) Government Assumption of Risk. An A-E firm may be relieved of responsibility for a design deficiency due to action by the Government, such as if the Government corrects the design deficiency without the concurrence of the A-E firm and the corrected design is the cause of a failure.

35. Any “What If” Questions?

36. A-E Responsibilities Learning Points • FAR Requirements • Negotiations • Type A, B and C Services • What is Expected from Both Parties • A-E Evaluations • Requests for Equitable Adjustments • A-E Liability

37. How to Get Help NGB Advisory Services Contract Support Contract funded by NGB/A7O with MSI Universal, Inc through the ND USPFO and CETSC Minot Assistance provided at no cost to Units Simply call or email one of contract team members

38. How To Get Help Tom Coleman 785-422-3686 or 785-608-0684 tomc@msiuniversal.com Gary Heidle 703-582-7387 whcgary@gmail.com garyh@msiuniversal.com Bill Whitt 301-870-0919 or 301-385-6118 billw@msiuniversal.com

39. Any Questions ?