Orange County Branch Newsletter
Law & CE
Do I Observe, Supervise, or Inspect When I Step Foot Inside the Construction Zone?
By nature, engineers are problem solvers. They enjoy and take pride in solving complicated problems. On a construction project, after the construction documents are complete and the contractor undertakes construction activities, it is strongly recommended that engineers contract to have continued involvement in a project throughout construction to assist with contractor questions, clarify the contract documents, review submittals and observe construction. However, based on the engineer’s words and actions, it is commonplace that an engineer unintentionally expands the scope of his or her work beyond what is written in the contract or unintentionally expands potential liability should the contractor fail to properly construct the work. The purpose of this newsletter is to provide an engineer with some basic understanding of how to avoid the assumption of additional liability when trying to be helpful and solve problems during the construction of a project.
First, as with any project, it is critical that the engineer performing construction administration on a project understands what is included and excluded from the scope of the services to be provided. The California Professional Engineers Act addresses contractual requirements for engineers and specifies in section 6749 that all contracts, with limited exceptions, must be in writing and clearly define (1) the scope of work to be performed; (2) the basis of compensation; (3) the name, address and license number of the engineer; (4) a description of how to address additional services; and (5) how the contract can be terminated. The extent of the services to be provided can vary significantly from project to project. As such, the scope of work set forth in the engineer’s contract should be reviewed and understood by each member of the engineer’s construction administration team.
Significant care should be given to the drafting of the scope of work section of every contract. An engineer should clearly define the role intended to be fulfilled and perhaps even more importantly, include express exclusions of the services that will not be provided. A clear, bulletproof contract can go a long way to protecting an engineering firm from future liability.
Beyond the contract, it is important to understand the engineer’s role relative to California statutory law. The California Professional Engineers Act (Business & Professions Code §§ 6700-6799) addresses this issue in part and provides a starting point for determining what an engineer is responsible for during construction. Section 6735.1 states that “[t]he signing of civil engineering plans, specifications, reports, or documents which relate to the design of fixed works shall not impose a legal duty or responsibility upon the person signing the plans, specifications, reports, or documents to supervise the construction of engineering structures or the construction of the fixed works which are the subject of the plans, specifications, reports, or documents.”
However, as with most rules, there are exceptions to this basic premise. Section 6735.1 goes on to qualify this general rule by providing that “nothing in this section shall preclude a civil engineer and a client from entering into a contractual agreement which includes a mutually acceptable arrangement for the provision of construction supervision services”.
This means that an engineer does not have the responsibility for supervision of construction on a project just because he or she prepared and signed the contract documents, but an engineer may add construction supervision to the contractual scope of services in the contract.
But what does “construction supervision services” actually mean? Again, the California Professional Engineers Act is instructive on this issue in section 6703.1 and provides that in the context of the Act, supervision means “the periodic observation of materials and completed work to determine general compliance with plans, specifications, and design and planning concepts.”
For further clarity, section 6703.1 also provides insight into what is not included in an engineer’s construction supervision activities. This section states that supervision is not “superintendence of construction processes, site conditions, operations, equipment, personnel, or the maintenance of a safe place to work or any safety in, on, or about the site.” As a rule of thumb, supervision and observation means confirming that the construction meets the general design intent reflected in the contract documents.
In some circumstances, engineers may also find themselves involved in more than generic observations, including materials inspections, geotechnical inspections, or other activities that by their very nature may carry an increased level of legal responsibility for faulty execution of the work by the contractor. Unfortunately though, the only reference in the California Professional Engineers Act to inspections relates to structural inspections after a declared emergency (i.e. earthquake), but does not provide any assistance to an engineer in deciphering what type of services rise to the level of “inspection.” The courts have also not provided much guidance on the distinction between inspecting, supervising, and observing. As a result, it is critical to make sure that an engineer’s contract contains clear and precise language describing exactly what services are being provided, and almost more importantly, what services are not being provided during construction.
What an engineer does and says while on a project may also affect future liability, especially when it conflicts with the contractual scope of services. For example, even when a contract is limited to “observation,” that limited scope can be usurped by conduct during the project if the engineer, for example, begins directing the means and methods of a contractor or holds himself out as a supervisor or inspector. Exceeding the contract’s scope by offering advice or inspections during construction without amending the contract is a risky practice. Remember, nice guys finish last.
In sum, to help control future liability arising from construction phase services, know the scope of services the client wants performed during construction, make sure the contract’s scope of services is clearly spelled out, and make sure not to exceed the scope of services bargained for during contract negotiations. Though there is no secret recipe for avoiding litigation, understanding your role during construction (and making sure your client understands it, too) can go a long way toward making sure you don’t see the inside of a courtroom anytime soon.
Michele L. Gamble, Esq. Christian E. Bredeson, Esq.
750 The City Drive, Suite 400 750 The City Drive, Suite 400
Orange, CA 92868 Orange, CA 92868
Phone: (714) 823-4100 Phone: (714) 823-4100
Fax: (714) 823-4111 Fax: (714) 823-4111
[email protected] [email protected]
Nothing contained within this article should be considered the rendering of legal advice. Anyone who reads this article should always consult with an attorney before acting on anything contained in this or any other article on legal matters, as facts and circumstances will vary from case to case.