FAR 36.608—Liability for Government costs resulting from design errors or deficiencies.
Plain-English Summary
FAR 36.608 addresses when an architect-engineer (A-E) contractor may be held financially responsible for Government costs caused by design errors or deficiencies. It states that A-E contractors are responsible for the professional quality, technical accuracy, and coordination of the services they provide, and it recognizes that defective designs can force changes to a construction contract and create added Government cost. The section explains the contracting officer’s duty to evaluate whether the A-E firm may be reasonably liable when a construction modification is needed because of an A-E error or omission, and it requires the contracting officer to do so with advice from technical personnel and legal counsel. It also sets the standard for enforcement: the Government should pursue recovery when the amount recoverable exceeds the administrative cost of collection or when recovery is otherwise in the Government’s interest. Finally, it requires a written record in the contract file explaining the decision to recover or not recover costs, which supports accountability, auditability, and consistent treatment of A-E liability issues in federal construction and design contracting.
Key Rules
A-E quality responsibility
Architect-engineer contractors are responsible for the professional quality, technical accuracy, and coordination of all services required under their contracts. This means the firm is expected to provide competent, complete, and internally consistent design services.
Liability for design defects
A firm may be liable for Government costs resulting from errors or deficiencies in designs furnished under its contract. Liability is tied to the Government’s added costs caused by the defective design, not merely the existence of an error.
Review when construction changes
If a construction contract must be modified because of an error or deficiency in A-E services, the contracting officer must consider the extent to which the A-E contractor may be reasonably liable. The review should be informed by technical personnel and legal counsel.
Recover when worthwhile
The contracting officer shall enforce liability and issue a demand for payment when the recoverable cost will exceed the administrative cost involved, or when recovery is otherwise in the Government’s interest. This requires a practical cost-benefit judgment, not automatic collection in every case.
Document the decision
The contracting officer must place a written statement in the contract file explaining the reasons for deciding to recover or not recover the costs. This documentation is required for accountability and to support the Government’s position if the matter is later questioned.
Responsibilities
Architect-Engineer Contractor
Provide services with professional quality, technical accuracy, and proper coordination. The contractor may also be financially liable for Government costs caused by errors or deficiencies in its design work.
Contracting Officer
Evaluate whether the A-E contractor may be reasonably liable when a construction modification results from design errors or deficiencies; consult technical personnel and legal counsel; decide whether to enforce liability; issue a demand for payment when recovery is warranted; and document the reasons for the decision in the contract file.
Technical Personnel
Advise the contracting officer on the nature, cause, and impact of the design error or deficiency, including whether the A-E services were technically deficient and what costs were attributable to the defect.
Legal Counsel
Advise the contracting officer on liability, enforceability, and collection issues, including whether the Government has a sound basis to pursue recovery and how to document the decision.
Government
Assess whether pursuing recovery is in the Government’s interest, balancing the amount recoverable against administrative cost and other practical considerations.
Practical Implications
This section is a risk-allocation tool: A-E firms should expect potential financial exposure if design mistakes drive construction changes and added Government costs.
Contracting officers should not treat every design error the same; they must assess causation, reasonableness of liability, and whether recovery is worth the administrative effort.
A strong file record matters. If the Government decides not to pursue recovery, the written explanation should clearly show the basis for that decision.
Technical and legal review is important because liability often turns on whether the issue was a true design deficiency, a scope change, or another cause outside the A-E’s responsibility.
A common pitfall is failing to connect the construction modification costs to the specific design error, which can weaken or defeat a recovery action.
Official Regulatory Text
Architect-engineer contractors shall be responsible for the professional quality, technical accuracy, and coordination of all services required under their contracts. A firm may be liable for Government costs resulting from errors or deficiencies in designs furnished under its contract. Therefore, when a modification to a construction contract is required because of an error or deficiency in the services provided under an architect-engineer contract, the contracting officer (with the advice of technical personnel and legal counsel) shall consider the extent to which the architect-engineer contractor may be reasonably liable. The contracting officer shall enforce the liability and issue a demand for payment of the amount due, if the recoverable cost will exceed the administrative cost involved or is otherwise in the Government’s interest. The contracting officer shall include in the contract file a written statement of the reasons for the decision to recover or not to recover the costs from the firm.