Getting the complete subsurface story

September 2009 » Columns » RISKY BUSINESS
John P. Bachner

Subsurface issues are the No. 1 source of construction-industry disputes. And those disputes lead to allegations of fault that grow quickly into claims and litigation that can entangle most of a project’s principal parties. As such, those parties have a vested interest in avoiding disputes, and settling quickly any disputes that arise despite their best efforts. Obviously, subsurface issues need to be more of a concern if the principal parties are to better manage their project-based risks.

One of the most effective ways to prevent subsurface problems is to retain the geotechnical engineer of record to observe earthwork. To save their time and their clients’ money, geotechnical engineers base their preliminary recommendations (included in their final report) on subsurface samples. They finalize their recommendations in the field by observing what the earthwork reveals.

Risk increases significantly when the owner retains an alternative geotechnical engineer to observe earthwork, because no one knows as much about project-specific, site-subsurface issues as does the geotechnical engineer of record. Making matters worse, the alternative firm’s technical personnel (field representatives) are rarely in a position to identify a discrepancy, and when they do, they’re not likely to contact the geotechnical engineer of record for guidance because it is a competing firm.

As a consequence, the preliminary recommendations that get implemented as final are inappropriate for actual conditions. This can aggravate risk still more, given that astute geotechnical engineers, by contract or other means, disclaim responsibility for errors that occur in the field when they are not on site to catch them. And when geotechnical firms are retained solely to observe earthwork, they commonly disclaim responsibility for discrepancies given that their role is to ensure compliance with recommendations and specifications.

So why don’t all owners routinely retain the geotechnical engineer of record to perform construction observation? First, some owners don’t know any better because no one has taken the time to educate them. As a civil engineer, you do know better, and it’s your professional responsibility to ensure that owners’ representatives know better, too. If you don’t, you could be caught up in a dispute in which the cost far outstrips your fee.

And then there are the owners’ representatives who know better but don’t care. They tend to believe that all geotechnical engineers are more or less the same, so it’s appropriate to put construction observation out to bid. It’s your responsibility to remind owners’ representatives that it’s unwise to risk costly delays and disputes in the search for economy.

There are also the owners who forbid geotechnical engineers from observing construction as a matter of policy, believing they would authorize a change order to hide their “mistakes.” That’s like routinely switching physicians because you believe doctors who diagnose problems cover up diagnostic mistakes during treatment.

All engineers are duty-bound to uphold professional ethics. To have a policy that “no geotechnical engineer shall be permitted to perform a complete geotechnical engineering service” is akin to saying no geotechnical engineer can be trusted. Any large barrel of apples contains at least one piece of bad fruit, but that doesn’t mean you have to eat it! Just examine the apple before putting it into your mouth, which is what qualifications-based selection is all about.

Also consider this : It’s highly likely that what’s discovered during excavation will differ from what was opined to exist, which is why the observational method was developed in the first place. Being incapable of seeing what is hidden by earth, rock, and time is not an error, and certainly not a negligent one. Geotechnical engineers have no reason to authorize a cover-up extra because they have nothing to hide.

And given that the failure to detect the undetectable cannot comprise negligence, owners have no basis for recovery against geotechnical engineers when unanticipated conditions are found. But even if they did, all constituents of the subsurface belong to the owner. An owner may be disappointed by a budget overrun, but the difference between the budgeted expense of earthwork and the actual expense is not damage; it’s merely the amount the owner has to pay because geotechnical engineers are not omniscient.

In short, when one firm is used to develop recommendations and another is used to observe earthwork, the owner can be left holding the proverbial bag. However, owners have a natural aversion to bag-holding and generally retain counsel to force the geotechnical engineer of record, the alternative geotechnical engineer, the civil engineer, the structural engineer, and various contractors to lend a hand, which, of course, should in each case be gripping a wallet.

John P. Bachner is the executive vice president of ASFE, a not-for-profit association that provides programs, services, and materials to help geoprofessional, environmental, and civil engineering firms prosper through professionalism. Visit ASFE’s website at www.asfe.org


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