By Darrell Staaleson, President SEAW Seattle Chapter 2018-2019
One of my duties as President has been to attend the NCSEA Conference in Chicago, IL and the Northwest Conference in Richland, WA to represent our members and bring back information and ideas from engineers throughout the USA. One topic which has been a part of nearly every seminar or discussion is something that is a part of our profession’s origin mythology – such as The Code of Hammurabi for law – and is also continually at the forefront of our professional practice: The Standard of Care. I would like to share a few thoughts with you on this topic.
When I was a cub engineer, back before cell phones, when a laptop computer weighed as much as a spare tire from my truck and was nearly as bulky, I worked for an engineer who I think exemplified what a principal engineer ought to be. It was not always a pleasant situation, but he was an honorable man and I did learn a tremendous amount about the practice of engineering from him. And that is where I formulated my core standards of practice and my understanding of the Standard of Care.
One summer back then, our senior engineer was sent out into the field to make structural observation of a foundation for a school building. When he arrived at the site, the first concrete truck was just pulling in and the contractor was not finished setting the reinforcing steel because he was working that day without his crew. It was not intentional. It just happened. And he was scrambling. Our senior engineer wanted the project to be a success. He did not want the Contractor to be harmed and he did not want to see truckloads of concrete wasted. So, he decided to help the contractor set the reinforcing steel. They got it done. And the concrete for the foundation was placed per the contract documents. Our senior engineer thought he had done a really good job. He was happy when he returned to the office. The principal engineer was, well, not happy! Our senior engineer told me he could not sit down for a week after that ”butt chewin’.” And his ears were still ringing from the yelling. And yes, he deserved it! It was a mistake – made with the best of intentions, but a mistake nonetheless. I was never certain whether he really understood why it was a mistake.
It was shortly after that incident that all of us in the office had to read the “DPIC Liability and Loss Prevention Manual.” This wasn’t just a perfunctory exercise. Our employment depended on it. We had to pass a written exam and an oral interview. We were required to know and use those principles in our practice. If we did not, we would essentially become a high-risk employee. Because knowing and using good practice standards significantly reduces the risk of an error and an insurance claim.
I still have that manual and I still use those principles. I have added to my methods and Standard of Practice over the years. For example, I now use a “Liability Risk Matrix” from my liability insurance carrier. If a project exceeds the minimum point score, or if risks cannot be mitigated, I do not take the project. Anyone in practice knows that a “plum” project can easily go sideways for any number of reasons. The Liability Risk Matrix helps to make sure those reasons have a low risk of occurrence on the project and that I am not being “starry-eyed” and instead enter into an agreement with clear expectations. What is astounding to me is seeing some engineers in this modern era ignoring some of these core liability principles. One of the areas where this is constantly an issue in my practice is construction phase structural observation and field work.
At the NCSEA Convention in Chicago in OCT 2018 there was one presentation on a case study of a liability claim by John G. Tawresey, Vice President KPFF, Retired. John (I thought courageously) presented a case history of a claim his company was drawn into. I found the case study thought-provoking and I ended up in discussions with John from which I learned about the work being done on the ASCE Committee on Claims Reduction and Management (CCRM). John Tawresey will be writing an article on the Standard of Care for Equilibrium in the Fall 2019. Here is a summary of CCRM’s objective:
“The Committee on Claims Reduction and Management [CCRM] has recognized that the open discussion of professional negligence claims provides the profession with one of the few sources of feedback on the sources of disputes and professional liability claims which arise from engineering projects. Sharing actual claim stories and experiences can alert other engineers about possible pitfalls and areas of concern regarding disputes and claims, and provides practical information which allows engineers to engage in loss prevention tactics and practices. The key issue is this: why do we keep making the same mistakes over and over? Openly sharing actual claims experiences is the single most powerful tool available to practicing professionals which can promote the professional learning process and avoid making those same mistakes over and over.” –CCRM.
Recently, I was hired to make a structural design for an addition and renovation of a residence on the east side of the Cascades. I traveled over Snoqualmie pass with the architect to the site. I have known and worked with this architect for 20 years. He has a lot of good ideas and I enjoy hearing his stories about different projects. And it made the time on the road go by quickly listening to him tell about his first project, which was laying out a military base while in the Air Force.
When we arrived at the site, I made a preliminary condition assessment of the existing structure. This was a 1970’s era timber-framed building supported on a perimeter concrete footing and stem wall. There was a partial half-height basement for the furnace and hot water heater in the center of the building. Even though there was a creek close to the west side and a lake to the south, there was no indication of settlement. The perimeter was sheathed with plywood. In this area the ground snow load is 65 PSF and the wind speed is 110 MPH. The architectural concept was to add a second story at the north end and an open truss great room to the south. This resulted in a 10-foot increase in building height. Analysis per IEBC Sec. 807.5 (10% Rule) showed that the primary difficulty would be in handling the overturning forces from greater wind loads resulting from the increase in building height. With this knowledge of the existing structure we began our discussion of the architect’s schematic design.
In the first hour of my schematic design review, based on my knowledge from the assessment, I was able to eliminate costly new foundations in the basement and at the new prow wall which had been proposed by the architect. The architect was impressed and told the client I had saved him $15,000, about twice my fee. Not bad for 3 hours of work.
We continued our discussion. I explained that since this was a major renovation with both new and existing plywood shear walls in a complex configuration on an existing foundation, some additional construction phase structural observation and field work would be needed. The contractor became belligerent and combative and asked why I thought I needed to look over his shoulder and watch him work and tell him how to do his job? Then he said that most times an engineer is in the field is to fix his own mistakes and it is not right for me to ask the owner to pay for that. I never know exactly what to say in response to this kind of statement, just like when someone tells me they like golf or believe the Earth is flat.
I explained the requirements of the Building Code and the Standard of Care for the construction phase to my client and contractor, in plain English. They “got their backs up” and refused to accept it. Later on, I learned that the contractor had an engineer from Eastern Washington that he had wanted to work with because that engineer never required construction phase services.
After further negotiations about our agreement in the next week, the client had a major emotional tantrum about construction phase services even though my fee was only 50% of the construction costs I had saved him. So, as a reward for working hard to make the project a success, upholding the highest and best standards of care, and being a loyal and faithful servant to my client, I was fired and called unprintable cuss words - in public. Technically, it was slander. But unlike the curses yelled at Marine Corps General “Hell Devil” Butler, none of the words hurled at me were in French. And it was well worth it to be rid of an irrational client, a cowboy contractor, and a project that gave every indication of being a lawsuit waiting to happen. And yes, I got paid for my services.
As is my practice, I prepared an “after-action report” to evaluate what I did right and what went wrong. It is not a “fun” exercise, but more like splashing cold water on your face – “a bracing tonic.” Here are a few of my thoughts on this project.
The construction phase is a constant issue in my practice as it was on this project. So, I revisited the basis for my standard practice for the construction phase.
1.
My agreements are based on “Engineers Joint Contract Documents Committee” (EJCDC) published by ASCE and my practice standards are developed based on the EJCDC Commentary and on my understanding of our profession’s long-standing principles. The EJCDC Commentary gives this guidance:
a.
The law does not require an engineer to deliver a perfect plan; there is no implied warranty or assurance that his drawings and specifications will be perfect and free from defects. However, the skill and judgement provided by the engineer must measure up to the standards of his profession. A set of contract documents or specifications that is so precisely drawn as to allow no flexibility in the means and methods of construction would not be in the interest of any of the parties. Therefore, the intent of the contract documents must be clarified and elucidated by the engineer as the contractor performs his work during the construction phase.
b.
The engineer is to use his best efforts as an experienced and qualified design professional to give the owner a greater degree of confidence that the completed project will conform generally to the contract documents and that the integrity of the design concept of the completed project as a functioning whole has been implemented and preserved by the contractor.
c.
The engineer will provide field orders to authorize minor variations in the work from the requirements of the contract drawings which are compatible with the design concept of the completed project as a functioning whole.
2.
In addition to his duties to his client, the engineer also has a paramount duty to protect the life, safety, and welfare of the public. Which requires the engineer to make periodic site visits to perform structural observation to check general conformance of the construction with the contract documents to be diligent and proactive in serving the public interest. I cannot just pretend to be ignorant of the construction phase as if it is completely separate from the design. The construction is not reliable unless the engineer is part of the construction phase.
This is not just a code provision. This is a part of the Standard of Care which I was taught from my first days at engineering college with Professor Mete Sozen talking about the smell of death and scene of devastation he observed in the aftermath of the 1985 Mexico City Earthquake and telling us that we, as engineers, had a duty to prevent this from happening.
The extent of those construction phase services is determined by the engineer of record based on project requirements and the engineer’s experience and judgement. And there is a wide range of opinion about what is needed on a particular project. But it is definitely not up to a client or contractor to decide whether or not he would like to have that service. Because engineers also have a duty to the public which we have an obligation to fulfill whether the client wants it or not.
My ‘takeaways’ from the after-action report:
1.
Revisiting the basis for construction phase reinforced that my practice is correct. Until someone I respect shows me a good reason to make changes, I will stay with my current practice. Other engineers might not agree with my opinion. And my opinion probably is not perfect, but it is based on a reasoned assessment of ethics and law, it is defensible, and I have confidence in it. Improvement:
- Keep to established practices until you find a good reason to make changes.
2.
I explained the concept for the construction phase to my client and contractor, in plain English. Looking back at that conversation, I should have realized then and there that they would never listen. I would never be able to convince them. And if a client will not listen to my advice, I cannot serve them. They will never be satisfied with my work. That is a huge liability risk – a red flag. Improvement:
- Set a stop loss on your efforts. From now on I will limit the time I spend attempting to explain construction phase services. If the client does not accept my opinion after 10 minutes, they never will. The project is a dead horse because the client is asking me to perform services contrary to my duties as a licensed design professional. And I cannot allow that to happen. I am better off ending my association with that project right then. That way I can refocus my efforts on finding a rational client with an interesting project and an adequate budget.
3.
Looking back at the conversations with the client, I did not realize soon enough that he could not see the Project in terms of total construction cost but instead was focused on my engineering fee. This represents an unsophisticated client or a client that does not have an adequate budget for the project. Improvement:
- For an unsophisticated client, change the risk factor in the “Liability Risk Matrix” from “5-High” to “Red-Flag” – decline the project.
- Verify that the client has a realistic budget for the project.
I have the experience from principals I have worked for and my own experience as a principal. I have read forensic case studies which focus on procedural errors. I have read recommendations from liability insurance carriers. I have read countless legal summaries in ASCE Magazine and I have read the EJCDC Commentaries. And I listened when my Attorney gave advice. But in truth, the real problem is not about what is written in commentaries or opinions or what you or I think as individual engineers in practice. The problem is that this must be defined by the collective wisdom of those in practice in our engineering community.
Like it or not, the Standard of Care is subjective. And in disputes, the Standard of Care will be defined by an expert witness and the legal profession who may, or may not, meet your assumptions of "similar practice." This effectively transmutes our Fundamental Canons of Practice into, as John G. Tawresey penned, the “you should have known rule.” This situation cheapens our ethics and does not engender a climate of fair business practices. Which we know from “The Brooks Act,” leads to lower quality construction and significantly decreases public safety.
So, we can either continue to let someone else define our Standard of Care, or we can define it ourselves as a professional association. And I think that the primary purpose of SEAW is to define the Standard of Care for the structural engineering community in Washington State.
I encourage you to give some thought to the issue of the Standard of Care for construction phase services and then share your thoughts in Equilibrium or on our SEAW Group on Facebook.
You can start by asking yourself these questions:
1.
What is the current Standard of Care in the Seattle area?
2.
What should the Standard of Care be?
Bibliography-
- “Commentary on Agreements for Engineering Services and Construction Related Documents,” Prepared for Engineers Joint Contract Documents Committee (EJCDC No 1910-9) by John R. Clark, Esq, published by ASCE, 1993 Edition.
- “The Brooks Act at 40: A Law that Works.” https://news.asce.org/the-brooks-act-at-40-a-law-that-works/
- Proceedings of 2018 Structural Engineering Summit – Chicago, Risk Management – Claims Studies, by John G. Tawresey FASCE, Vice President KPFF, Retired.
