Common disputes might involve the site engineer allegedly allowing unsafe work conditions to exist, leading to the injury of a subcontractor s employee. Or, an inadequately designed or planned project might cause the contractor to initially bid too low, or to run into delays and cost overruns, forcing the contractor to seek additional payment from the municipality. During construction or after a project is completed, faulty design by an engineer might be blamed by the contractor for causing injury to a member of the public, especially if the contractor has been sued in tort. In another situation, a completed public works project, perhaps an expensive pumping station, simply does not perform as it was designed to and additional funds are spent to correct the situation. In the eyes of third parties, and even the contractor, the engineer and the municipality are one and the same.
Subsequent lawsuits involving the engineer inevitably include the municipality as well.
First, although the final cost of a project cannot be guaranteed, an engineer has an affirmative duty to give a definite idea of the reasonable cost and must re-estimate costs during the course of construction, providing complete and reliable disclosure to the municipality. Anything over that limit caused by the fault of the engineer might entitle the municipality to reimbursement. Second, because a supervising engineer, as agent, can obligate a municipality to pay the cost of excess work by directing a contractor to perform such work, the engineering contract should provide a remedy if the engineer exceeds a pre-set limit without seeking city approval. Change orders are used to substitute pre-specified materials or construction methods with different materials or methods. Of course, the engineer should advise the municipality whether or not change orders will incur additional costs for the municipality or the contractor.