Claims Retrospective: Remember, Your Subconsultant’s Work Is Your Work
Engineers frequently subcontract a portion of the design work they are responsible for to a subconsultant. However, engineers should realize they will remain responsible to their client for their subconsultant’s work product. In other words, if their subconsultant’s work is defective or fails to meet the applicable standard of care, the engineer will be liable to the client.
Given the fact the engineer is responsible for their subconsultant’s work product, the engineer should proceed with caution when subcontracting. First, the engineer subcontracting a portion of their work to a third-party should make sure the subconsultant is qualified and licensed to do the specific work. The engineer should also make sure the subconsultant has a good, long-standing reputation in the field. It is best to use subconsultants with whom the engineer has had a positive experience in the past.
All too often, engineers hire unknown persons or entities they find on Upwork or some other website to do a portion of the work for which they are contractually responsible, only to find the quality of the work is substandard and/or defective in some way. Engineers should remember their client hired them, not the subconsultant, to do the job and they will be called to answer if something goes wrong.
Apart from hiring an experienced, qualified, and licensed subconsultant, engineers should take care to make sure that any subconsultant they hire is solvent and adequately insured. A client will not care if you or your subconsultant is directly at fault for the error or defect and will be happy to pursue the person or entity that has the resources to pay a judgment. Often times, this is the person or entity that is adequately insured. If an engineer’s subconsultant is not adequately insured, the client will have no incentive to pursue the subconsultant. Further, the engineer will often have no recourse against the subconsultant. What good is it to get a judgment against the subconsultant if the engineer can never collect on the judgment because the subconsultant is uninsured, insolvent, and/or judgment proof?
It is also important for the engineer’s subconsultant to be solvent as it will be the best party to defend the design in the event of a defensible claim. Further, the engineer will need access to the subconsultant’s file materials in order to defend the subconsultant’s design, for which again the engineer is going to be responsible.
The engineer should make certain the subconsultant has the same responsibilities toward them as the engineer has toward the client. This will ensure the subconsultant will be liable to the engineer if the engineer is liable to the client for deficiencies in the subconsultant’s work. It will also ensure that everyone understands their responsibilities on the project.
Finally, the engineer should consider having a written agreement wherein the subconsultant agrees to defend, indemnify, and hold harmless the engineer from any claims arising out of a negligent act, error, or omission in the subconsultant’s professional services. However, this is only helpful if the subconsultant is solvent and has assets, particularly an insurance policy, as noted above.
It is important to adequately investigate a subconsultant before hiring them because their work is your work.
