n my many years of writing and speaking on the subject of contracting for professional surveying services, I have often emphasized that surveyors should use written contracts for all projects.
Too many disputes between surveyors and their clients relate to the lack of a written contract. Oral understandings are fertile ground for later misunderstandings and misinterpretations, both accidental and deliberate.
A vital component of a contract for surveying services is the section that defines the scope of services to be delivered. What seems obvious to a surveyor may be obscure to a client who can’t tell the difference between a retracement survey and a topographic survey. Additionally, the contract form used should be reviewed by the firm’s lawyer for structure and content as well as scope. The responsibilities of both parties to a contract--including rates and payment schedules, contingencies, limitations of liability and so on--should be carefully and legally spelled out.
One way to ensure a reliable contract is to use the Engineers Joint Contract Documents Committee’s “Standard Form of Agreement Between Engineer and Land Surveyor for Professional Services” (EJCDC E-560). Although the form is readily available, many surveyors often overlook this useful tool.
The basic form is 14 pages long with an additional 28 pages of attachments and exhibits. The scope of services is spelled out in Exhibit A and covers boundary surveys with reference to the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, topographic surveys with a laundry list of items to be included, construction staking and post-construction services, and additional services. The form itself contains seven articles, including Services of Land Surveyor, Engineer’s Responsibilities, Schedule for Rendering Services, Invoices and Payments, General Considerations, Definitions, and Attachments and Exhibits.
In General Considerations, surveyors will be glad to find the standard of care for all surveying services defined as “the care and skill ordinarily used by members of the subject profession practicing under similar circumstances at the same time and in the same locality. Land Surveyor makes no warranties, express or implied, under this Agreement or otherwise, in connection with Land Surveyor’s services.” In this section, the land surveyor is also absolved of responsibility for the contractor’s work, including site safety and security issues.
As for the use of documents, E-560 makes it clear that the “Engineer shall not rely in any way on any Document unless it is in printed form, signed or sealed by the Land Surveyor.” A further paragraph makes it clear that “(f)iles in electronic media may be furnished only for convenience, not reliance by the receiving party.”
A section on dispute resolution provides for mediation or arbitration, an option I have long recommended surveyors include in their contracts for services.
A section on indemnification provides for an allocation-of-risks process whereby the surveyor’s liability may be limited to the amount of the surveyor’s compensation, the surveyor’s insurance coverage (professional liability coverage is specified), or to a specific amount. (Of course, these provisions are only enforceable to “the fullest extent permitted by law.”) By so defining the surveyor’s liability exposure, this form addresses the issue of concern we have had for many years--namely, that the surveyor’s exposure is far in excess of any compensation he or she may receive for his or her service. Not many of our clients are willing to limit our liability to the amount of our fee. This form, when presented to the surveyor by a prospective client, officially establishes new ground for risk limitation for the surveyor in private practice. Surveyors will find the form complete and comprehensive, but they should read it carefully.
Although this form is intended for the contracting of surveying services by engineers, it is highly likely that some construction contractors use the form, as well, since one of the members of EJCDC is The Associated General Contractors of America.
E-560 was brought to the National Society of Professional Surveyors in draft form in 2005 with the aim of endorsement by NSPS. The NSPS leadership took it under advisement and submitted it for review to Victor O. Schinnerer Co. for any concerns relating to professional liability and the surveyor’s insurance coverage. The response from one of Schinnerer’s attorneys indicated that they had “reviewed the attached documents and have no issues or concerns at this time. It seems the approach to taking the existing engineer/consultant agreement and modifying it for surveying services was the right approach.” However, the NSPS leadership felt they had too little time to review the whole document before it went to publication. Accordingly, a note on the title page of E-560 states “Endorsed by: (ACSM – to be provided).”
I believe it is important that NSPS complete its review and endorse the form on the condition that it be made available to NSPS members through the ACSM publications service. A tutorial on use of the contract would also be a helpful and valuable service from NSPS. Such a tutorial could be similar to the many articles and seminars presented by NSPS on the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys.
Author’s note: The E-560 document can be obtained through the Web site of the American Council of Engineering Companies ( www.acec.org ) for $100.80 ($50.40 for members) or through one of the other EJCDC sponsoring organizations. The document is not available through NSPS/ACSM at this time.