Category Archives: tips

Engineering Firms in the Cross-hairs

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[note: this article was originally posted February 11, 2011]

Two national engineering companies are in the cross-hairs of the Delaware Department of Transportation.

The Delaware Department of Transportation (DelDOT) has filed suit against Florida-based Figg Bridge Engineers and its subcontractor, Atlanta-based Mactec Engineering, for alleged geotechnical engineering errors involved in a failed effort to build a new bridge over the Indian River Inlet in Sussex County, Delaware.   According to a Press Release issued by the State of Delaware, as embankment construction was nearing completion in early 2007, excessive settlement, bulging, tilting and other deformation of the embankment walls were observed. After investigation, DelDOT concluded that the embankments would pose continual and costly maintenance, as well as construction and safety risks and should be replaced with elevated roadway approaches to the new bridge. The Federal Highway Administration, which is providing a large portion of the funding for the replacement bridge, agreed with DelDOT’s conclusion to remove the embankments.

DelDot bridge

The lawsuit states that the deficiencies in the embankments are directly attributable to the failures and omissions of MACTEC, and that MACTEC, as sub-consultant to Figg, breached the standard of care that it owed to DelDOT. The facts in the complaint  “are based upon comprehensive studies prepared by the engineering firm of O’Connell & Lawrence, Inc. and the geotechnical consulting firm of Golder Associates, Inc., as well as observations of experts made during deconstruction of the embankments. ”  The lawsuit specifically alleges that:

  • MACTEC did not adequately analyze monitoring data and thus did not recognize that the intended embankment stability had dropped below minimally acceptable levels during and upon completion of construction;
  • The embankments settled and deformed substantially more than MACTEC had advised DelDOT would be the case. This is because MACTEC miscalculated the nature and extent of settlement in the soft clay under the embankments, and did not take into account other types of settlement.
  • MACTEC miscalculated the time intervals over which settlement would occur.
  • MACTEC failed to specify a process for monitoring data or implementing necessary action if required by field conditions.

DelDot is seeking over $19.6 million in damages from Figg and Mactec.

In a vigorous detailed response, Mactec has stated, among other things, that:

  • In November 2005, despite the fact that the original bridge design was canceled, DelDOT authorized spending millions of dollars to construct embankments for the original bridge. DelDOT knew and understood that the original bridge would never be built and that any other bridge design would require that changes be made to the embankments which would likely include the removal of large sections.
  •  In October 2007, DelDOT prepared a Proposed Path Forward. When this document was reviewed by the Federal Highway Administration, they labeled it as “full of scare tactics and misdirection to avoid doing the proper engineering.” Rather than performing the engineering requested by the federal government’s primary technical agency for bridge design and construction, DelDOT forged ahead on its predetermined path without involving the design team.
  • In January 2008, DelDOT hired outside counsel and two consulting claims firms to assist in the investigation at an estimated cost of $2.1 million. Neither consulting firm was asked to review/recommend methods to address technical issues of concern. Both firms have acknowledged they cannot support the report of the ‘independent’ geotechnical firm upon which the DelDOT Proposed Path Forward was based, that they had not considered the bases of DelDOT’s decision, and that they did not investigate the installation of certain critical aspects of the embankments by the contractor.
  • In April 2008, geotechnical monitoring data showed that the embankments had reached the required settlement and the original bridge design plan could have been constructed without removal of the constructed embankments. The predictions on the amount and length of time for settlement by the “independent” geotechnical firm were clearly overstated.
  • In May 2008, DelDOT, again, authorized spending millions of dollars to deconstruct the embankments. DelDOT claims the decision to be based on the engineering report from the “independent” geotechnical firm. Factually, however, this expenditure was the direct result of DelDOT’s 2005 decision to proceed with building embankments for a bridge design that was never intended to be built. DelDOT had to accommodate the new bridge design by removing significant amounts of the embankment on both sides regardless of the accuracy of any predictions made by anyone as to settlement.

It will be interesting to see how the case enfolds.  Stay  tuned!

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 Photo (c) DelDot

 

Tues Tip: Check out the new AIA Bond forms

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Have you seen the 2010 AIA 312 Payment Bond Form?  If you regularly deal with AIA bonds, be Payment Officer looking at demolitionsure to check out this blog post, entitled “What changes you need to know about in the new AIA A 312 Payment Bond” from the New York Construction Law Update Blog.

  Of particular note:

There is a new section (7.3) that expressly states the surety’s failure to respond within sixty (60) days does not constitute a waiver of any potential defenses.  However, the new AIA A312 also states that if the surety fails to respond and if the claimant has to bring an action to recover under the bond, and is successful, then the surety will be responsible for attorneys’ fees incurred by the claimant. 

The new Section 16.1 provides certain minimum requirements that must be in the notice of claim to constitute a valid claim under the bond.  Previous versions of the AIA A312 did not contain such minimum requirements and a claimant in a rush could potentially submit a simple letter identifying the project and setting forth the amount of its claim to try and squeeze in before the deadline to submit a claim. 

While it is tempting and easy to skip reading standard form contract documents, that is not a good practice.  The new requirements involved in making a bond claim, for example, are something that would be easy to overlook if you have previous experience making bond claims– and it could be a very expensive lesson.  Moral of the story, as always, is to read your contracts, preferably with your attorney and insurance carrier at hand.

Do you use the AIA 312 Payment Bond form?  Thoughts about the new Form versus the old Form? Bonding questions in general?  Drop me a line or comment below.

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Photo copyright of U.S. Air Force and made available via Creative Commons license. 

Top 10 OSHA Violations– don’t let it be you! (Tue Tip)

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dancing woman in safety vestPhoto: Dancing for Workplace Safety

OSHA has published the top safety violations for 2010.  There are two categories:  (1) the top 10 standards for which OSHA most frequently gave Citations in fiscal year 2010; and (2)the top 10 standards for which OSHA assessed the highest penalties in fiscal year 2010.

The most frequent violations are:

  1. Scaffolding
  2. Fall protection
  3. Hazard communication
  4. Ladders
  5. Respiratory protection
  6. Control of hazardous energy (lockout/tagout)
  7. Electrical, wiring methods, components and equipment
  8. Powered industrial trucks
  9. Electrical systems design
  10. Machine guarding

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The most expensive violations are:

  1. Fall protection
  2. Electrical
  3. Safety training and education
  4. Control of hazardous energy (lockout/tagout)
  5. Machines
  6. General duty clause
  7. Excavations
  8. Lead
  9. Grain handling facilities
  10. Ladders

Detail about the specific regulations which were violated, the OSHA requirements in these areas, and related materials can be found on OSHA’s website (Hat tip to NC Construction News for alerting me to OSHA’s list).

OSHA violations can be costly– both in money, and in safety.  Don’t gamble with either!

Now it’s your turn:  Do you have an experience with OSHA violations that you think others should learn from?  Let me know in the comments below or email me at mbrumback@rl-law.com.

 

Photo by Washington State DOT via Flickr/Creative Commons license.

What Will It Take for You? (Guest Post)

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 Guest Post:  Today we have a very inspirational guest post by Julie Fleming, J.D., A.C.C., on finding success no matter the odds.  A nice piece to help you change your mindset as you start off the new year.

Julie A. Fleming

Julie A. Fleming

 

 Julie is known as the business development expert for client-based businesses.  Julie consults with client service professionals on all aspects of creating a successful, satisfying and sustainable practice, with a special emphasis on business development and executive coaching.  Julie is the author of The Reluctant Rainmaker:  A Guide for Lawyers Who Hate Selling.  Additional information and resources are available at www.juliefleming.com.   Contact Julie by email to julie@juliefleming.com or by telephone to 800.758.6214.

What Will It Take For You?

I saw The King’s Speech on New Year’s Day.  You’ll probably see the movie (about the efforts by King George VI, informally known as Bertie, to overcome a stutter around the time he ascended to the throne following the abdication of his brother, King Edward VIII, who left to marry the American divorcée Wallis Simpson) described as one about stuttering, about royalty, about friendship, about conflicting and social status.  It’s all of that and, to this Anglophile, more besides – a must-see that’s apparently the frontrunner for multiple Oscars.

But beneath all of that, deeper lessons become apparent.  Here are the top three that struck me.

  1. Masks tend to reveal as much as they cover.  In other words, if you pretend to be that which you aren’t, cracks will show.  Perhaps the real you won’t leak through the cracks, but fault lines will reveal that all is not as it appears to be.  Bertie’s speech therapist Lionel Logue opined that no child is born with a stutter and that a left-handed child forced to write with his right hand will never find that motion to be natural.From the business angle… So what?  I’ve had the opportunity to coach professionals who feel they must wear a mask to work with colleagues or to attract clients.  The “lucky” ones are unsuccessful, which prompts them to re-evaluate; lucky and unlucky alike are miserable. Who are you in your business, or in your practice?  As Bob Burg has written, “All things being equal, people will do business with, and refer business to, those people they know, like and trust.”  People are sensitive to hints of inauthenticity and tend not to trust those who wear masks.  So, really, it’s often your choice: would you prefer to lose some business because people sense you are not the person you’re pretending to be, or would you prefer to lose some business because of you are who you are, knowing full well that others will be drawn to you because you are that person? 
  2. Breaking the rules may be precisely the thing that propels you forward.  In The King’s Speech, one of Bertie’s breakthroughs comes with the freedom granted when Logue urges him to curse.  Bertie, a straight-laced royal, soon lets the expletives rip.  I won’t spoil the movie for those who haven’t seen it, but letting loose plays a role later in the movie in an amusing way. Some rules must not be broken – but those who are successful often find certain rules that don’t work for them, and shattering those restrictions also shatters the glass ceiling.  What rules are holding you back?  Are they truly non-negotiable?  If you could break them, how would you do it?  And, most importantly, for the sake of what?  Don’t go breaking rules just to break them. 
  3. Opportunities may arise in the form of problems or defeat.  Take them anyway.  Bertie was never supposed to be king.  His wife (the woman most of us knew as the Queen Mother) never wanted to be queen.  And yet, when King Edward VIII abdicated, Bertie and Queen Elizabeth stepped up at a crucial time in British history.  Bertie found his voice because he had to work for it.  England would likely have come through World War II and the Blitz regardless, but to hear English citizens of those years talk, the leadership shown by the “shouldn’t-have-been-royals” shaped the courage and determination of a generation.  Bertie did what was necessary to stand as a leader; his country modeled what he did.What opportunities are in front of you?  Which have come in the guise of defeat?  Perhaps you made a proposal to a potential client and lost.  What will you do?  One of my clients asked why, received valuable feedback, and proceeded to convert the prospect into a client within a matter of days for a parallel project created solely because the prospect wanted to work with her.  Perhaps you launched a program or a product and no one bought.  What opportunity can you spy when you take your eye off the failure?

Comments on how you can use these ideas in your own business?  Julie and I welcome your thoughts in the comments section, below. 

“If you are going through hell, keep going.”

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Winston Churchill

The title of this post is a quote attributed to Winston Churchill.  While he may not have had to deal with running a design or construction firm during an economic shake-up, he did know a thing or two about surviving.  This is one of the men, after all, who had to deal with Nazis.

Take Sir Winston’s advice and plan your attack as you keep moving through the sluggish economy.  Spend a few minutes planning and strategizing for your architecture, engineering, or contracting business.  Times are lean and work is slow.  Use this time to your advantage. I’ll leave you with a few more motivational quotes:

Whether you think you can or think you can’t, you’re right.  Henry Ford
The only man who never makes a mistake is the man who never does anything.  Theodore Roosevelt
Opportunity is missed by most people because it is dressed in overalls and looks like work.  Thomas A. Edison
  
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Photo:  “Sir Winston Churchill, 1874-1965” by JanickG via Flickr/Creative Commons license.