Tag Archives: engineer

Certificate of Merit to sue architects or engineers? (Tue Tip)

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You know how they say the best laid plans can go awry?  Just as unforeseen issues pop up in construction, they also pop up in the practice of law.  So, while it is still Tuesday, I apologize for the late hour of my post.

I bring you good tidings, despite my lateness.  Right now, in the North Carolina General Assembly, is a proposed bill that would require a Certificate of Merit to be filed in civil litigation against an architect, engineer, or a design firm.  If it passes, this would require that an unbiased, third party (who is also a licensed professional) has reviewed the claim and believes it has merit.  

boy holding certificate of merit

This boy has his certificate of merit: will lawsuits against architects and engineers require the same?

Such a pre-lawsuit requirement  has long been a right that doctors enjoy.  Now, there may a chance for architects and engineers to also enjoy protection from otherwise frivolous lawsuits. 

The bill has been introduced, had its first reading, and has been referred to the Judiciary Committee.  While the bill is a long way from passage, it is a good sign that the public recognizes too often professionals are the targets in lawsuits simply because of their “deep pockets” (really!) or their insurance coverage. 

You can keep track of the progress of Senate Bill 435 here. 

(h/t to Kathryn Westcott, ACEC-NC Executive Director)

Photo: (c) John Dolan via Flickr/Creative Commons License.

EJCDC Document Training (Tue Tip)

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Document Updates sign

Photo (c) EJCDC

We’ve talked previously about Form Construction Contracts, including ConsensusDocs, AIA, and even shown a comparison chart between the two.  Now it is the Engineer’s Joint Contract Documents Committee’s (EJCDC’s) turn. 

The American Council of Engineering Companies (ACEC) is holding a training seminar on key parts of the EJCDC form contracts.  The seminar, entitled “Critical Design-Build Contract Provisions: Understand Legal Issues That Can Put Your Firm in Hot Water“, is scheduled to address several topics and the EJCDC take on those issues, including:

  • Errors and Omissions–Handling of E & O under design-build is complicated due to inability to invoke the betterment rule.
  • Licensing Laws–Since the Design-Build entity holds itself out to be both the “designer-of-record” and the “constructor-of-record”, appropriate professional registrations and business licenses need to be in place.
  • Protests of D-B Bids and Proposals–What to do with protests of design-build procurements includes practical lessons for engineers
  • Design Reviews–Conduct of design reviews under design-build may differ from traditional periodic reviews, because an owner can place itself in a responsible position by dictating changes during the review process rather than relying on the D-B entity to deliver an end-result in conformance with the design.
  • Performance Guarantees–In some instances, owners seek to tie the design-builder to some strict performance standard.
  • Who Owns the Design–On some government design-build contracts, the owner is insisting on owning the design product.
  • Teaming Arrangements–There are many ways for engineers to participate in design-build contracts. Is your risk tolerance such that your firm can go “at risk” or would it be advisable for the firm to retain its agency status?

The Webinar is scheduled for Wednesday, April 20th from 1:30 to 3:00 PM, Eastern Time.  Fees are $199 (members) /$299 (nonmembers).  Click here to register.

Upcoming on the blog:  a guest post discussing one practitioner’s use of each of  three main form documents.  Stay tuned!

A Building Code Engineer’s perspective on the Earthquake

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Imad Naffa

Imad Naffa

After my post on the Japan Earthquake last week, I heard from Civil Engineer Imad Naffa.  Imad is a self-described “atypical Civil Engineer with passion for providing Building, Fire, Accessibility, ADA, LEED, Green and AEC related info. and resources”  and the President and Founder  of Naffa International, Inc., a Building Code Consulting Firm based in Fresno, California.

Imad has written about the Earthquake and Tsunami from the Building Code perspective in an article for his Blog entitled “Japan’s Earthquake and Tsunami My take as a Building Codes Engineer.”   Check it out, as well as his interactive, curated Earthquake site.     Editor’s Note:  Since this was first posted, Imad has passed away.  His blog was apparently taken down by his family, who have my deepest sympathies.  Imad was a creative, knowledgeable, and kind man.  He is missed.

Do you agree with Imad that  it is imperative that the U.S. improve and update design, construction  methods and building codes?  Let Imad and me know your thoughts in the Comment section, below.    And, if you are interested in Building Code resources, be sure to check out his comprehensive list of Technical Links, which I am adding to this Blog’s Resources page.

Micropiles for bad soil: a Tar Heel victory

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Kenan constructionDespite foundation challenges, construction is almost complete on the expansion at University of North Carolina’s Kenan stadium.  The project started with a deep foundation system from design-build contractor GeoStructures.  Known as the Carolina Student-Athlete Center for Excellence, the addition was built on a parcel with a knotty mix of fill soils, subsurface boulders and varying depths to rock.   To achieve uniform foundation support, GeoStructures designed a Micropile system (also known as a Mini pile system) which could be drilled into the variable ground conditions.

After an pre-production load testing program that provided an optimized design, GeoStructures proceeded with installation of 265 micropiles ranging in capacity from 80 tons (160 kips) to 175 tons (350 kips) each. Although most were designed for compression loading only, designs in some areas called for tension resistance due to lateral loading. All of the micropiles were cased to rock with internal reinforcement and socketed into hard bedrock present at the site.

For a video peek into the various construction phases, check out UNC’s  “Hard Hat Hits”.

Do you have experience wiht micropile systems?  Foundation or soil tales of woe?  Just love the Tarheels?  Drop me a note in the comments section, below.

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Photo (c) GeoStructures 

 

Lien Law Changes: Bad for Designers?

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UPDATE:  Designers may file Notices of Commencement when they start their work, which should eliminate or significantly reduce the priority date concerns expressed below.  See this post for more details.  — mdb  3/4/11

gavel, law books, & hard hat

The work of the NC Bar Association’s Construction Section Lien Law committee continues, and it may drastically change the lien law landscape for architects and engineers.

On February 18, the Construction Law Section Council, the governing body of the Section, voted 11-4 to accept the latest draft version which must still be approved by the NC Bar Board of Governors.  After approval by the Board, it will then need sponsorship at the General Assembly.   The lien law changes have divided the construction industry – some believe the changes are beneficial, while others worry about new requirements contained within the bill.

Of particular note for architects and engineers, the new lien law envisions a new Notice of Commencement which would then act as the first date of service for everybody who works on the project.  The new law would give almost everyone on a project the same priority date.  Almost all liens would then relate to and take effect as of the Notice of Commencement date.

In other words, designers and others who perform work very early in the project would have no stronger lien rights than those who perform work at the very end of the project.  If there are insufficient funds to satisfy all of the liens, the net result is that architects and engineers will have to share pro rata will all contractors and subcontractors from the owner’s assets.   (And, to answer a question posed to me the other day, yes, architects and engineers have lien rights on projects in North Carolina!)

Is there a way around this for designers and other early performers? Yes and no.  One way a designer can protect his priority is by filing a Claim of Lien before the Owner files the Notice of Commencement.  (See section 44A-10 of the new draft bill).  However, as you can imagine, filing a Claim of Lien before construction has even started is likely to be frowned upon by the Owner.  Furthermore, the lien would have to be timely perfected, which involves actually suing the Owner.  Obviously, use of the Claim of Lien to beat the proposed Notice of Commencement date will have limited, if any, practical use for construction professionals who are working on a project and want to maintain a good relationship with the Owner.

There are many good things in the new bill: a way to streamline payment issues to ensure subcontractors are timely paid when the general contractor is paid, for example, as well as an attempt to provide lien rights to parties even after a bankruptcy filing, which had been made impossible by recent cases.   However, the priority issue is definitely bad for designers, as well as others who do their work very early in the project.

Comments, questions, or thoughts about the proposed changes?  Let me know in the comment section, below.  And sign up for regular email updates from this Blog, so you never miss a post.