By Bruce Jervis
Under the “accepted work” rule, a public works construction contractor that builds a project in strict accordance with drawings and specifications furnished by the government becomes immune from third-party suits arising out of the work once the government accepts the project. The sovereign immunity enjoyed by the governmental entity is imputed to the independent construction contractor.
Does this rule apply to design professionals on public works projects? The Texas Supreme Court recently answered that question in the negative. The court reasoned that unlike a contractor performing work in strict accordance with government mandates and directives, a designer functions with considerable discretion and control. An engineer’s highway design may have been approved and accepted by the governmental entity, but the design decisions were the engineer’s own. The engineer could be sued for alleged negligence by a third-party motorist.
This ruling, while well-reasoned, has unsettling implications. Increasingly, the public sector relies on design/build contracts to accomplish work. Even agreements that purport to be traditional construction contracts may include design elements. If there is no immunity for the design professional, will the melding of design and construction responsibilities erode the protections afforded constructors under the “accepted work” doctrine? Your comments are welcomed.