Soil is the first and the Last Domino in the construction process. Soil becomes the second domino when the construction process begins. Too often, the next domino is the legal one: which party has the legal risk?
Soil is the first and the Last Domino in the construction process. Soil becomes the second domino when the construction process begins. Too often, the next domino is the legal one: which party has the legal risk?
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Soil is the first and the Last Domino in the construction process. Soil becomes the second domino when the construction process begins. Too often, the next domino is the legal one: which party has the legal risk?
Copyright:
Attribution Non-Commercial (BY-NC)
Available Formats
Download as RTF, PDF, TXT or read online from Scribd
D. And too often, then, the next domino to fall is
the LEGAL one:
which party has the legal risk; have the proper
contractual steps
been taken?
E. And often, the next domino is post contractual,
when problems
create displacement, water infiltration or other
impairment to
the use of the site and cost of remediation
and/or maintenance.
F. And one day, unless it is an aqueduct built by
the Romans over
two thousand years ago, or a pyramid or a
Great Wall, or a great
dam such as Hoover, it will be necessary to
demolish the struc-
ture and start all over again. Structures come
and go; the material upon which they rest for the most part remain.
II. Purpose
The purpose of this section is to set forth the
process for (and the processes will be for both the owner and contractor):
The development of an adequate investigation
for design and constructibility.
The contractor's pre-bid investigation and
understanding of risk and potential liability.
Avoiding construction problems.
Handling changed conditions if they do occur,
from both a project management and contractual (legal) point of view.
Pricing and defending claims for changed
conditions, including documentation.
III. The Management of Risks
A. What you don't know will kill you. In the
construction industry, our goal should be to provide the most complete and accurate information possible for all the parties to the project. The more we know, the less the risk. Soils (both surface and subsurface) provide the greatest vulnerability to process failure because it is difficult to know everything about soils conditions and characteristics. On some sites, the nature of the soils may vary significantly within a few feet. Some soils are very expansive and some are not. Some very hard "rock" isn't so hard after all when exposed to the atmosphere and water (such as metagraywacke which becomes a slurry once exposed to the elements and moisture).
B. These variances can affect design and
constructibility as well. And the less that is known about the characteristics throughout the entire site, the greater the risk is . . .to all the parties. And the greater that is known, the less the risk. For example, on a five mile sewer line through a marshy environment, log borings were done at every pump station (each mile along the way) and no more. The borings showed sandy clay and some rather fatty clay, all of which were adequate to support the structural design of the pump stations. Water was indicated below the bottom of the invert elevation of the RCPs to be installed No other borings were done and the contractor relied on these five borings for both his estimate and his construction means and methods (a trench box for support during excavation and installation of the reinforced concrete pipe). However, between several of the pump stations, during excavation the sides of the trenches becan to "dissolve", almost like mercury being poured on a kitchen table. The 330 catepillar was lost during one of the excavations because the subsurface material literally bled away. Of course, further investigation revealed that in these areas the water table was very high and that the materials were heavily saturated with silt, and minimum clays or material with any structure at all. The meager geotechnical investigation by both the design firm and the contractor in its pre-bid investigation proved that what you don't know will kill you.
And who lost: in this instance, the city lost
because it missed the date in the EPA abatement order; the engineering firm was held responsible for damages caused by error and omission and had to pony up a major portion of both the City's and the contractor's damage claims ; the contractor had to "eat" about a third of its losses because it had totally failed to do any pre-bid site investigation. And that is what we see so frequently: in cases in which "soil" is the villain, there are often no winners . . .only varying degrees of losers.
C. Legal Management of Risks. Risks can be
managed, sometimes avoided, and most minimized through prudent processes, such as adequate soils investigations. On the other hand, there is an illusion that risks can be avoided through legal exculpatory, disclaimer and other risk shifting clauses. As indicated in the foregoing example, this approach often becomes a lose-lose proposition, for even if the owner has a bullet-proof exculpator or risk shifting clause, if the project is delayed because of site conditions, the owner's use of the structure or facility is delayed and he faces the possibility of a lawsuit. And if the problem is one of design, the owner's use of the facility may be adversely affected due to structural movement, water infiltration, or drainage issues.
BEST PRACTICES
Develop adequate, thorough, and accurate
informa-
tion regarding soils, subsurface conditions
and char-
acteristics for design and constructibility
purposes. Prudent practices should be first line of defense against