Tag Archives: engineer

Construction Termination Issues for the Architect and Engineer: Part 1– Introduction to the Series

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Earlier this year, I was asked to talk to other construction lawyers on the topic of termination.  My first question was– whose termination are we talking about here– the architect / engineer?  The contractor?  Is someone wanting to “fire” the owner?  The answer, as it turns out, is — yes.  That is, yes, any and all of the above termination topics were on the table.

As you may have suspected, even the threat of a termination is bad, bad news.  It is the “nuclear option” for a construction project.  Everyone risks getting harmed.  As the design professional administering a contract, you run a risk of being dragged into litigation no matter what you do.  So, how should you proceed?  Carefully.

Elmer Fudd and dead Daffy Duck

As Elmer Fudd would say, be very, very careful!

To start, follow along in my new limited series on Termination Issues for Architects & Engineers (and all Design Professionals).  For the next few weeks, I’ll be posting about all sides of the termination topic, including:

Part 2:  How to handle construction administration when the contractor is getting fired

Part 3:  How to handle contract administration when the contractor is firing the owner

Part 4:  What to do when they want to fire you, the architect or engineer

Part 5:  What if You are the one that wants to quit?

and finally:

Part 6:  This is the End (Construction Contract Termination quick facts for the design professional)

Stay tuned for the next several weeks to learn all you ever wanted to know about termination, resignation, and the breaking of contracts.

In the meantime, if you have any burning termination-specific questions or comments, drop them in the comments below.  See you soon!

Photo By Leon Schlesinger Productions, produced for Warner Brothers. – YouTube screen capture; Public Domain,

Are we having fun yet? Construction in a post-COVID world (law note)

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Remember how I said to never assume?  Yeah, about that……   even when you plan for failures, mistakes, and other problems, sometimes things get so outside the realm of what you considered that it can leave your construction project spinning.  Take, as a random example, a world-wide pandemic that shuts down supply chains, shuts down job sites, and limits the labor pool.  Just as an example.

What does construction law say about pandemics?  They fall under an “Act of God” that you may have read about in your contracts, or in the contracts of the contractors working your projects.  An “Act of God” is an event that is not foreseeable, and as such not something the parties could have anticipated when they drafted the contract.  Acts of God generally excuse a party’s failure– for example, a contractor’s failure to complete the project on time can be excused when an “act of God” has occurred. 

By now, you’ve dealt with the practical fall out, one way or another.  Many projects no longer made financial sense for your clients.  Others may have been modified, reduced in scope, or had substitute materials put in place.

What do you, as an architect or engineer, do now, faced with the potential for further shut downs, supply chain issues, and other COVID variants?  The short answer is to give yourself options and assume changes will be needed to your own scope of work on each project.  Consider:

  1.  If the project needs to be re-designed to account for shortages, can that be an additional service that you get paid for?
  2. If the project requires substitute products, how many of those are part of your basic service, or is there a point at which you should get paid hourly for researching, reviewing, and approving substitutes?
  3. If the project takes a lot longer than anticipated to complete, whether due to government shut downs, labor issues, or supply chain problems– can you get paid increased contract administration fees?  And, is there a contract provision that allows you to increase your hourly rate after X number of months, to reflect inflation?

These are some of the ways that you, as a designer, can protect yourselves from ongoing delays, and make sure you are not tied to a project without a way to recoup your extra costs.

Thoughts?  Questions?   Share what’s worked for you or what you’d like to learn more about in the comment section below.

 

 

When the Civil Engineer wears the Hero’s Cape (book review)

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“It’s one thing to erroneously tell someone to drive through a lake.  It’s quite another to drive someone through a lake.”  So explains fictional Civil Engineer Jake Bendel when discussing the need for complete accuracy in a fully automated highway system in the “civil engineer thriller” Civil Terror:  Gridlock by J. Luke Bennecke.  Civil Terror

In Gridlock, Bennecke, a civil engineer in real life, describes a near-future in which traffic accidents and heavy commutes are a thing of the past, thanks to a “100% accurate” roadway system of self-driving cars which utilize GPS, cell-phone pings, and a loosely-described “proprietary system” of tracking signals.

Things are going along well until a terrorist devises a scheme to kill thousands of commuters by subverting the computer code and causing massive traffic accidents all up and down the California highway system.  Thanks to planted evidence by the terrorist, the FBI suspects Jake and not the true villain.  What follows is a fun crime-thriller-esque novel in which Jake proves to be the unlikely hero.

In the novel, Bennecke explores the realities of a fully-automated traffic system (versus the current one-car-at-a-time system), and the tremendous benefits that could result.  It is also a fun read, especially for civil engineers and those that love them.  As fictional Jake in the novel points out, “[N]obody wants to read a technical thesis about the gritty details of fully automating cars and trucks on freeways…. Unless they were having a hard time going to sleep, ‘cause that would certainly do the trick.”  Instead, Jake in the novel, and Bennecke in real life, pens a novel where the civil engineer gets to wear the hero’s cape, vanquish the bad guy, and save the day.

This book is not an in-depth discussion of the engineering, legal, and insurance implications of self-driving cars.  Instead, it is a fun, quick read where the engineering concept is simply one of many plot points.  Even so, this might be novel as a gift for the favorite civil engineer in your own life!  (after all, Mother’s/Father’s Day is coming!!]

Have you thought about fully-automated highway systems?  See the promise/problems?  Share in the comment section.

[Editor’s note:  I received a review copy of this book for consideration, but will not receive any benefit if you purchase it].

Certificates of Merit for NC lawsuits against engineers and architects? (still no)(law note)

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Certificates of Merit  are documents intended to show that a true issue exists with a professional’s work, prior to that person being sued.  While North Carolina does require that a person suing a medical provider first have the matter reviewed by a professional (and attest to that in the Complaint), there is no requirement for any review prior to a lawsuit against an architect, engineer, or surveyor.  Thus, anyone can file a lawsuit against an engineer/architect/surveyor without first having their case eyeballed reviewed by another professional. magnifying glass

Over the years, there have been attempts at adding a Certificate of Merit requirement to design professional lawsuits.  See, for example, examples here: from 2005; from 2007;  from 2011; and from 2013.

While many states do have Certificates of Merit for lawsuits against licensed design professionals, North Carolina, to date, does not.  This is a shame, because having a professional review a potential error *before* a party spends the time and money to file a lawsuit, can only help eliminate frivolous, merit-less claims.   To win a lawsuit against a design professional, a party will need to have an expert testify that they were negligent.  The Certificate of Merit just ensures that there truly is a valid dispute before a design professional’s name and reputation get pulled into expensive, perhaps unnecessary, litigation.

Would a requirement for a Certificate of Merit eliminate unnecessary claims?  Perhaps not.  But, it gives all parties an honest “first look” at the alleged design errors before the lawyers sharpen their claws begin filing their lawsuits.

Share your thoughts on such certificates in the comments, below.

 

Design Professionals’ Stamping & Sealing Obligations (50 state survey) (law note)

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Stamping Ground KYDo you sometimes wonder if you are meeting your stamping & sealing obligations in each state where you practice engineering or architecture?

Ever find yourself with some questions about how another jurisdiction handles design professional issues?

Wish you could find these answers in a reliable resource and know that it was solid information?

The lawyers have your back!  Check out the first ever 50‐State Survey of Licensed Design Professionals’ Stamping and Sealing Obligations (pdf; large document; give it some time to load)  by the American Bar Association Forum on Construction Law.

The survey is alphabetical, but for easy reference, here are some page numbers for the Southeastern States* to get you started:

  • North Carolina          starting at page 124
  • South Carolina          starting at page 154
  • Georgia                      starting at page 36
  • Florida                        starting at page 30
  • Virginia                       starting at page 176

Download or save this link, and the next time you have a quick question about the various licensing boards, regulations, rules, and procedures,  you can save yourself some time.

* FYI, my law firm has licensed attorneys in each of these Southeastern States, in case you should have further questions.

And, as always, drop me a line with any of your pesky construction law related questions, comments, complaints, etc.

Photo: (c) Coal town guy at English Wikipedia via CC