Who pays?
Who pays?
(OP)
I had a contractor misplace some anchor bolts in the field. Nobody knew about the missing anchors until steel erection began when we received a frantic phone call from the fabricator asking us to solve the problem. The misplaced bolts completed attachment of a concentric brace to the foundation system so they were pretty significant. It took quite a while to come up with a suitable repair that didn't involve a jackhammer. We solved the problem, went to the site and found the steel erector used a giant hammer to knock a bunch of concrete out of the way and then needed to adjust the detail to accommodate damage done by said hammer.
Now the question, who is responsible for the engineering time spent on coming up with the detail? The GC is willing to pay for the new steel and erection time required but refuses to pay for the engineering time because of "professional courtesy" citing he has never charged a client for an engineering mistake before in the past.
Now the question, who is responsible for the engineering time spent on coming up with the detail? The GC is willing to pay for the new steel and erection time required but refuses to pay for the engineering time because of "professional courtesy" citing he has never charged a client for an engineering mistake before in the past.






RE: Who pays?
Send a letter to your client stating that you will not perform any further services until the bill is paid, citing the reasons for the extra charges. And stick to your guns.
Mike McCann, PE, SE (WA)
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Maine EIT, Civil/Structural.
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Mike McCann, PE, SE (WA)
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The contractor [and possibly 99% of world leaders throughout history] need[ed] to understand that concept.
That said, choose your battles…
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Well... There ya go..., no good deed ever goes unpunished. Since when is the contractor misplacing and/or not installing a bunch of A.B.s an engineering mistake which shouldn’t be paid for when you dropped everything to help get their whatcha-callit out of the wringer. Maybe the lesson is that you do nothing until you have a letter in hand about who’s going to pay for your extra work. They can hand deliver the letter to speed things up. And, you’ve likely heard the one; Why don’t sharks usually bite attorneys who are swimming with engineers? Professional courtesy. That same courtesy isn’t applied to engineers by the sharks, attorneys or contractors.
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Either bill them or never have the legitimate right to complain that anyone else is paid more than you, full stop.
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Nor do you have to have any privity of contract in a Common Law jurisdiction to go after the Owner directly. Do not lie down here; Get the fair compensation for fair labour. Most jurisdictions further allow you to lien, and to recoup the cost of the lien and all administration/legal/etc fees. Owner can pay now, or they can pay for what would have otherwise been downtime.
As Engineers we tend to be much too focused on the technical, and we always suffer. YOU NEED TO BE PAID FOR THAT WORK.
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The contractor is likely complaining because it works to knock engineers down. It also works with subcontractors.
You just gave him a 50% discount that will go in his pocket that he won't even notice or remember.
If you have a relationship with a contractor that will work with you, do it for free. Otherwise, charge the full amount.
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1. Remove and replace per drawings and specifications (expensive and time consuming)
2. Pay for the design of corrective details (usually much less expensive and time consuming)
3. Invent a time machine, go back in time and do it right the first time. (Unknown cost, but now time lost)
The point is, at 10.5 hours at say %150.00 an hour is $1575.00. I am guessing this is a multi-million dollar project, your costs are likely insignificant.
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Bob
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Oh I've had that happen lots, the contractor pays my bill with a cheque from his company. He then turns around and finds a way to add it into his bills to the owner. Trust us when we say, the owner always pays the bill in the end.
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The test, as best as my "I am not a lawyer" understands it, is:
- Who ultimately gained/required this work to be done?
Ans: Owner.
This is the reason why so many owners (in particular governments and large corporations) require a labour and material bond from the contractor. If the Owner pays the Contractor, but the Contractor does not pay the subs, the subs may still collect directly from the Owner. In effect the law says the Owner has been defrauded, but that is not the sub's fault, and the sub's work still enriched the Owner, thus the Owner must pay the sub.
Further to this, the Owner has a business decision to make. They have now suffered a tort (ie: Lost money) because of the act or omission of another person. Whether or not they then go and try to collect from the Contractor is not your problem.
It is particularly important that engineers understand this distinction, and that you know your local jurisdiction's lien laws.
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Normally, we do not have a contract with the contractor but if we are providing services to him to repair his error, then we should get paid by him.
As far as the contractor adding it to the Owner's bill, that depends on his contractual agreement with the Owner.....fixed fee, time and material, etc. The architect or engineer often is hired to review/approve progress payments, so we have an obligation to make sure the contractor does not add it to his bill.
There may be a difference in the laws of the US and Canada.
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I doubt this is any different in the US, other than possibly Louisiana [Civil Code]; It is a fundamental common law test.
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http://answers.uslegal.com/contractors/constructio...
http://www.bamalawblog.com/2009/07/unpaid_balance_...
http://www.dleg.state.mi.us/bcsc/forms/conlien/llf...
Interestingly, in the US it seems Archtects are included. They are not in Canada, the courts here having decided they don't need this protection as they can just sell their design to someone else.
P.S. I love the name "bamalawblog" and can't stop running it through my head in a cheesy southern US drawl. *smiles*
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If the law did not default to the Owner, all sorts of shell-game scams would be possible. As it is, I know of many cases where subcontractors (and Engineers!) only ever got paid by the Owner long after a project completed.
It may not be right, but it is the law. The provider must be paid for their labour for the economy to work. It is up to the Owner to defend themselves from unscrupulous Contractors, not up to us to take a hit because of "professional courtesy" or anything else.
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Mike McCann, PE, SE (WA)
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- Contractor calls for assistance.
- Engineer notifies Owner there is a site issue.
- Engineer provides site instructions / change order directions.
- Where the new works are cheaper to construct than the original (rare, but it happens), the Contractor provides credit for work not completed and bills for the new works.
- Contractor performs work required.
- Engineer bills Owner for work required to support the changes.
- Owner calculates lost value/time (time only if formal terms for same are already in the contract; otherwise this is a point for negotiation) and deducts this amount from their final payment through right to set-off.
- Owners often refuse to release the labour and material bond under these circumstances until all known subs have provided statutory declarations and a period of time has lapsed (often 90 to 150 days).
Somewhere in there the Contractor is usually trying to find extras like mad and the whole thing turns to crap, but these are the "right" steps as I know them.
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I had a similar circumstance where A.R. were not installed correctly and the erector couldn't fit the base plate over the A.R. because they were so far out of plumb. I notified the owner (in writing) that it was an additional service and they understood and were willing to pay me for my time. Whether they go back to the contractor (I hope they did) or not I don't much care about.
Remember, it's ALWAYS easier to get the money when you asked for it before the work is completed. Once the issue is resolved, people often forget about the additional work that was required.
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You bring up a point I have been meaning to ask about CA but have yet to get around it. Most of the time I deal with new construction and base my CA on a lump sum fee. I am in the process of being burned by this process by a needy contractor (calls/emails every day with changes they would like to make). I am beginning to wonder if others use lump sum CA or not.
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- Number of site visits
- Number of iterations of shop drawings
- Number of RFI's
- Number of meetings
- Exclude the redesign and recalculation of members and connections for existing conditions, architectural changes, or coordination with services or other non-structural construction.
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This project I referenced is becoming death by a 1,000 paper cuts. I reviewed the reinforcing 3x because they needed to speed up the ordering process, so they cut the project into three sets of drawings.
I have never included the # of items included in the proposal when it comes to CA (although this has been recommended to me by a few people). I usually don't get worked up about site visits are most of my jobs are 1.5 hours away max.... and I can usually lump the visits together (going to 3-4 sites in a day). I also get worried if the client will be picky if you budgeted 3 meetings and only 2 were needed... but you made 10 site visits vs 6. However, my recent experiences have me reconsidering this stance.
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when i worked in inspections/testing, it was always construction phase and t&m not-to-exceed. in inspections, i would rather work for free than jump through the contractor hoops and aging A/R for $1000 paid out of the GC.
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Still doesn't change the fact that the Owner must pay us for our labour, and later make the offset or argument/negotiation with the Contractor.
Do not back down on these points people; This is a major source of the erosion of the value of our Profession's work!