Where an engineer was required by contract with a city to recommend a contractor following competitive bidding, a court held that because the bid by the contractor that the engineer recommended be accepted was dramatically lower than the other bidders, it was foreseeable that the contractor could not, or would not, perform the services for the promised price.  Since the engineer also should have reasonably foreseen that the city would rely upon its recommendation to award to the low bidder and that the City would have to pay extra re-procurement costs if the recommendation was negligent, it was appropriate to find in favor of the city against the engineer on the basis of a negligent recommendation.

In Sunland Construction Company v. Wilbur Smith, Inc., 387 Fed Appx. 361 (C.S.4 (S.C.), 2010), the court of appeals held that there was sufficient evidence to support the trial court’s finding of negligence on the part of the engineer in making the recommendation to award to the low bidder.  The law suit was initiated by Sundland, the contractor, against the city and the engineering firm of Wilbur Smith Associates, after the city terminated its contractor for the installation, by horizontal direct drilling, of three large storm water sewer pipes under the City of Myrtle Beach and approximately 1000 feet out to sea.  The contractor refused to complete the project, and the city terminated it for that reason.  The contractor then sued the city for $3 million in costs it said it incurred while attempting to perform the work under what it claimed to be defective specifications and it also sued the engineer for the allegedly defective specifications.

Following an eight-day bench trial, the court concluded that the engineer was not liable to the contractor for negligence but that it was liable to the city.  The negligence determination was based on findings by the court that the engineer negligently recommended that the city award the contractor in view of how much lower the bid was from others and that the engineer had not adequately investigated the bid prior to recommending it.  Further, the court found it significant that the engineer was not independently qualified to render a recommendation on the horizontal bidding proposal, and the engineer retained a subconsultant for that purpose — without advising the city.  The engineer eventually fired the subconsultant prior to making its recommendation to the city.

On appeal, the engineer argued even if it had been negligent, that negligence was not the “but for” cause of the city’s injuries because, even in the absence of a negligent recommendation, the city may have still contracted with the low bidder since not to do so would have opened the city up to public criticism and lawsuits.    The appellate court found that the trial judge did not clearly err in finding the engineer was the cause of the city’s injuries, and the court also found that there was ample evidence supporting the city’s contention that it was not required to award to the lowest bidder but had instead been persuaded to do so based on the engineer’s recommendations.

With regard to the engineer’s argument that it was not the legal or proximate cause  of the city’s injuries, the court stated that a plaintiff does not have to prove a defendant’s negligence was the sole proximate cause of his injuries, but instead merely has to show that it was foreseeable that the defendant’s act or omission could cause, or be a contributing cause, to the plaintiff’s injury.  Thus, says the court, “It is sufficient if the evidence establishes that the defendant’s negligence is a concurring or contributing proximate cause.”    Even if the contractor’s conduct contributed to the city’s injuries, “this fact alone does not sever [engineer’s] liability for its initial negligence, which set into motion all of the events that ultimately, and foreseeably, lead to the City’s injury.”   Having found the engineer’s conduct to be a substantial factor in the harm to the city, the court concluded that “the mere fact that [Engineer] ‘neither foresaw nor should have foreseen the extent of the harm or manner in which it occurred does not negate its liability.’”      The trial court judgment in favor of the city against the engineer was affirmed accordingly.