Consultant Errors and Omissions

MnDOT Policy #FM004
Revised: August 30, 2023

Consultant Errors and Omissions Reporting and Resolution Procedures

Please go to the MnDOT Org Chart to find specific contact information: Org Chart.

Responsible Senior Officer: Deputy Commissioner/Chief Administrative Officer
Policy Owner: Chief Counsel
Policy Contact: Deputy Chief Counsel for Construction and Contract Management

Policy statement

The Minnesota Department of Transportation (MnDOT) must hold consultants who perform architecture, engineering, and design-related services (including design-builders) accountable for the quality and accuracy of deliverables provided to the department. MnDOT employees must follow the Consultant Errors and Omissions Reporting and Resolution Procedures and report potential errors or omissions. Failure to comply with the policy or reporting procedures may result in discipline up to and including discharge.

The department will take appropriate action to address the impacts of a consultant error or omission on a MnDOT project.

Consultant Design Errors Review Committee

The Consultant Design Errors Review Committee must review reports of potential consultant plan errors or omissions and evaluate whether consultant actions amount to professional negligence. This oversight committee will recommend to the Deputy Commissioner/Chief Engineer whether to pursue cost recovery or other remedial action from the consultant.

The Committee shall, at a minimum, consist of the following members or their designees:

State Design Engineer (Chair)
State Construction Engineer
State Bridge Engineer (who may elect not to participate if a bridge or structure is not involved)
Chief Counsel
Audit Director
Director of Consultant Services (Ex-officio as advisor)
Deputy Chief Counsel, Construction and Contract Management (non-voting advisor)
Other member(s) as designated by the Deputy Commissioner/Chief Engineer as needed

Reason for policy

This policy is for MnDOT internal use to provide the process for MnDOT staff to follow if they believe they have identified errors or omissions in work performed under a contract with the department. The policy also establishes an oversight committee to evaluate potential errors and omissions to determine whether recovery should be pursued based on factors identified in the Consultant Errors and Omissions Reporting and Resolution Procedures.

Applicability

All MnDOT employees must comply with this policy.

Key stakeholders with responsibilities under this policy include:

Consultant Services
MnDOT Design and Construction Staff, including Design Engineers and Resident Engineers
Project Managers
Consultant Design Errors Review Committee
Deputy Commissioner/Chief Engineer
Deputy Chief Counsel for Construction and Contract Management

Definitions

Consultant

A person or business entity that performs architecture, engineering, or other design-related services under a contract with MnDOT, including a design-builder or design-build team that performs such services.

State’s Project Manager

The MnDOT architect or engineer responsible for managing the design of a project who is designated as the “State’s Project Manager” in section 6 of the Professional/Technical contract with the architect or engineer consultant and monitors the consultant’s performance and progress. This person may be the MnDOT Project Manager, a design lead, or a functional group lead if the consultant is hired to deliver a specific functional task.

MnDOT Project Manager

The person who leads the project team and works with all stakeholders to define the project and to meet the project scope, schedule, and budget throughout all phases of the project, from project initiation to project closeout.

Error or Omission

A negligent or wrongful act in which a consultant fails to meet the applicable Standard of Care in the performance of its work under contract with the department or fails to meet a duty imposed by the contract.

Negligence

Conduct that falls below the standard of behavior established by law for the protection of others against unreasonable risk or harm, or failure to act in a manner consistent with the Standard of Care.

Resident Engineer

The MnDOT employee designated as “Resident Engineer” (or the Resident Engineer’s designee) and who is responsible for managing a construction project.

Standard of Care

In accordance with section 8.2 of the MnDOT Professional/Technical contract with the designer, the degree of care, knowledge, and skill ordinarily exercised by reputable professionals in the field under like circumstances in the State of Minnesota.

State Bridge Engineer

The Director of the Bridge Office, or the Director’s designee.

State Construction Engineer

The Director of the Office of Construction and Innovative Contracting, or the Director’s designee.

State Design Engineer

The Director of the Office of Project Management and Technical Support, or the Director’s designee.

Responsibilities

Consultant Services

Ensure that contracts with consultants for architecture, engineering and design-related services require the consultant to provide proof that it has, and will maintain, insurance protecting against professional errors and omissions in the performance of its work, unless a departure from this requirement is authorized by the Office of Chief Counsel, Contract Management Section.

MnDOT Design and Construction Staff

Report potential design errors and omissions in final design documents to the employee’s supervisor, State’s Project Manager, or Resident Engineer.

State’s Project Managers

Perform an initial analysis of reported potential errors and omissions. Coordinate with the Resident Engineer, as needed.
Provide report of the initial analysis to the Chair of the Consultant Design Errors Review Committee when the remedy for an error or omission would result in more than nominal cost or damages.

Resident Engineers

Assist the State’s Project Manager in performing initial analysis of reported potential errors and omissions, as needed.
When potential errors or omissions are identified during construction, assess impacts and costs to the project and report to the Chair of the Consultant Design Errors Review Committee.

Consultant Design Errors Review Committee

Review potential errors and omissions and make recommendations to the Deputy Commissioner/Chief Engineer if action is warranted.
Provide direction on corrective action to MnDOT Design and Construction Staff or refer to the Deputy Chief Counsel for Construction and Contract Management, as appropriate.

Deputy Commissioner/Chief Engineer

Review recommendations from the Consultant Design Errors Review Committee and approve or provide direction.

Deputy Chief Counsel for Construction and Contract Management

Ensure that the policy and procedures are followed.
Advise the Consultant Design Errors Review Committee on the Standard of Care and other legal matters.
Lead internal efforts to recover damages, request Attorney General Assistance as needed, and coordinate with Attorney General on litigation matters.
Maintain a record of the written information reviewed by the Committee, the Committee recommendation, and the decision of the Deputy Commissioner/Chief Engineer.

Policy Owner (Chief Counsel)

Review the policy every two years, or sooner as necessary, to ensure the policy remains up to date.
Ensure procedures associated with the policy remains current.
Monitor state, federal, enterprise, agency, or other requirements that apply to the policy or procedures.
Ensure the policy and procedures remain compliant with all state, federal, enterprise, agency, or other requirements.
Ensure that necessary approvals by state or federal agencies are obtained before changes to the policy or procedures are implemented.
Work with the Policy Coordinator to revise the policy and/or confirm its accuracy.
Communicate policy revisions, reviews, and retirements to stakeholders.

Resources and related information

Processes, Procedures, and Instructions

Consultant Errors and Omissions Reporting and Resolution Procedures

Resources

23 Code of Federal Regulations Sections 172.5 (c) (16) and (17) and 172.9 (c) (1) (x): Procurement, Management and Administration of Engineering and Design Related Services: Program Management and Oversight; Contracts and Administration
MnDOT False Claims against the State Policy
Best Practices in the Management of Design Errors and Omissions (published by AASHTO)

History and updates

Adopted

November 8, 2011 (Policy #2.91)

Revised

First Revision: January 7, 2013 (revised and renumbered as #FM004)
Second Revision: August 30, 2023

Policy Review

This policy's next scheduled review is due August 2025.