Sometimes as a subcontractor you are faced with a situation where the architect or engineer gives you certain field directives which you reasonably (or sometimes necessarily) relied upon. The problem arises when those directives were completely negligent and now you’re being denied your change orders or extra work claims because you relied on those directives. You have a possible claim against the architect or engineer who gave you those directives not on a breach of contract theory but on a professional negligent misrepresentation theory. The elements of such a claim are as follows:

“To properly assert a claim on a theory of negligent misrepresentation, a plaintiff must plead:“(1) the existence of a special or privity-like relationship imposing a duty on the defendant to impart correct information to the plaintiff; (2) that the information was incorrect; and (3) reasonable reliance on the information.”

In short, the relationship between an architect and subcontractor can meet this standard of the “functional equivalent of contractual privity” or the “privity-like relationship” described above and form the basis for a subcontractor (or contractor) suing an architect for relying upon the architect’s negligent and incorrect directions.