Owner/Contractor doesn't want me on site 5

[vato]

I recently visited the site of a new building which I designed to perform a construction observation of
wall reinforcement on an ICF building. I noticed a lot of honeycomb in the recently poured footers and I remarked that the walls need to be poured much better than that or I will reject it. I like to remove some foam in random spots to make sure the pour was done properly on ICF walls. The crew was also inexperienced in pouring icf walls so I had legitimate concerns. Anyway, the owner/contractor stopped communicating with me after I asked in and email when is the next pour? He has since told me, thanks for the design, but we are fine with inspections by the building department, we'll call you when we need you. I asked if it was ok for me to visit the site and photograph construction progress for my records (in an email). And now I'm getting no response.
I'm not sure how to handle this one. Do I have any legal rights regarding the ability to visit the site if it's not explicitly stated in the contract? Should I just raise my concerns to the building department and let it go?
Thanks in advance for the help.

 

[CELinOttawa]

In Ontario and New Zealand both the acts and applicable law require that works designed by a Professional be reviewed by a similarly qualified individual. IE: Architects may review Eng works and vise versa, buy of course as a ruele do not do so. The more practical side of this is that QA QC works can be undertaken by another Professional aside from the designer.

I'm surprised to hear there are so many areas that still don't require this. There have been a rash of collapses traced back to insufficient field verifications.

 

[Lion06]

I've been under the impression (maybe mistakenly so) for my entire career that the EOR is not allowed to do "inspections". I thought that the EOR is limited to "observations" and the owner is required to hire a third party "inspector" to perform special inspections.

 

[BAretired]

Don't know about the USA but in Canada, the EOR does "Professional Field Review and Compliance Review During Construction". These are more than observations...they are inspections for which the EOR is fully responsible, but the EOR may call for additional or special inspections where warranted.

BA

 

[vato]

I did include construction observation in the contract. Fortunately, I get paid once the design is delivered with no further billing for construction observations unless they become excessive at the request of the client. If I really wanted to get on site, I suppose I could argue my point with the contract, but that doesn't feel like enough. Since I am not in zone d,e,or f and my wind speed is below 110, I don't see how the IBC gives me any right to observe this project. I'm a bit surprised that there isn't more explicit language in the IBC giving the EOR the right to observe construction of his/her work.
So, I don't see how to remove myself as EOR based upon the client's desire to keep me off the site, which has now been confirmed in an email from the client. Construction site access will be part of my contracts in the future.
As the EOR, I have no legal right to observe construction of my work. That makes no sense to me.
It looks like a discussion with the building department is next.

 

[BAretired]

In that situation, it may be prudent to write a letter to the authority having jurisdiction with a copy to the client stating that you no longer accept responsibility as EOR for the project because you have been denied access to the site to perform periodic construction review.

Financial adjustments may be required if you have been paid for services which you cannot render.

BA

 

[manstrom]

In situations like this, you need to play salesman instead of engineer. Sell the site visits as a service that will ensure that the structure is built properly. I always tell them that county inspections are like a state safety inspection on a car, they may tell you if you need new brakes, but they don't know if the oil needs to be changed. As SER, you have a thorough understanding of the building and it's design. I'm sure there are some tricky areas or details that should be checked by you.

If they don't want the inspections, simply state that you cannot sign off and certify the project. Some jurisdictions require this, especially if you are under "special inspections". Additionally, some banks require the SER to sign off. A certification letter is also a good bargaining chip for the current owner to sell to a new owner.

If that fails, then they are on their own. I wouldn't lose sleep over some honeycomb, but if there was something that was very concerning, I would sneak onto the site and inspect myself without their permission. If its ok, then you can rest easy, if there is a problem, show the owner / building dept. If there is a "life safety" issue, make a big stink and get the county involved.

I had a project where the 3rd floor balcony rails were installed improperly and would come out of the brackets very easily. One letter to GC, owner, architect and building official got that fixed right away. And, they kept us coming out.

 

[EngineeringEric]

Lion, the original purpose of Special Inspections was for the EOR to inspect their building during construction. Some owners have taken the EOR as SI and turned it into a conflict of interest. I guess the logic is that if i make a mistake i will hide it in the wall where the non-Engineer Technician will be able to see that i should have detailed using #5 bars not #4 bars and will reject the construction/design (please note that this was typed sarcastically).

I agree with M^2, report it and remove yourself from the situation. After you report it I bet you may be pleaded with to come back and look at their walls.

 

[vato]

One issue is that the GC is also the "owner" but the money behind the project is not coming from him. I'm sure the actual owner would not have an issue with me on site but I am shielded from communicating with that person. So the contractor is protecting himself from the possibility of looking negligent by not letting me communicate with the real owner. I'm am now being accused of disrupting the crew's moral by expecting the walls to not look like the honeycombed footers.
And I'm not getting shot to sneak on to this site to make myself feel better. It's really starting to look like I need to walk away from this one.

 

[woodman88]

Lion06

Under the IBC the EOR can.

Per the 2009 IBC

"1704.1 General. ...The registered design professional in responsible charge and engineers of record involved in the design of the project are permitted to act as the approved agency and their personnel are permitted to act as the special inspector for the work designed by them, provided those personnel meet the qualification requirements of this section to the satisfaction of the building official..."

Per the 2012 IBC
"1704.2.1 Special inspector qualifications...

The registered design professional in responsible charge and engineers of record involved in the design of the project are permitted to act as the approved agency and their personnel are permitted to act as the special inspector for the work designed by them, provided they qualify as special inspectors."

Garth Dreger PE - AZ Phoenix area
As EOR's we should take the responsibility to design our structures to support the components we allow in our design per that industry standards.

 

[nutte]

I’m not sure where the consensus came from that as Engineer of Record, you have a right to the site and to observe (or perhaps inspect) the construction. The EOR’s duties should be spelled out in his contract. The owner (or the owner’s architect, or general contractor) may very well hire the structural engineer to simply design the building, not perform inspections. In this case, your work is done when the plans are done. The fact that you can’t observe the work doesn’t resolve you of your duties as EOR – you’re still responsible for the accuracy of the information on the plans. If there is a construction defect, that is the general contractor’s problem, not the EOR’s.

 

[EngineeringEric]

The EOR does not have to paid to visit the site, but they can visit is my opinion. If i am not being paid for inspections fine, no issue there at all. But if i am not allowed to step on site and i feel it necessary for the final client or public safety I will not be held responsible for their work. Sometimes a letter clearly stating that i am concerned but banned from stepping on site is required to make this clear to all parties.

I think we even have a general note stating that if the EOR is not involved with any CA, or construction review then we will not be held responsible for from any claim arising from the contractors performance to meet the design intent of the CDs.

 

[JLNJ]

Do we know if the EOR has the "right" to visit the site? If someone else is contracted to do the special inspections, does the Owner have the authority to keep the EOR off the site. It seems intuitively obvious that the EOR should have access, but my intuitition doesn't always hold water in the court of law. You might at least have the right to make sure SOMEONE is contracted to do the Special Inspections. Otherwise, it's the Constractor Fox watching the henhouse.

If you do have a "right" to visit the site, put the denial of such in the letter to the CBO.

On a side note, I know that the IBC does not permit the Contractor to be his own Special Inspector (a clear conflict of interest). What is the law on projects where the Contractor is the Developer and is the Owner? Who protects the public interest? Is it left to the CBO? I'm sure the contractors think they can police themselves, but public safety drops to number two or three on the list when a contractor's profit $$ are involved.

 

[vato]

To clarify, there is no requirement for 'special inspections' on this job.
But JLNJ brings up the point that I have issues over and that is, does the EOR have a right, per code or law, to visit the site during construction? It will be in my future contracts, but it also seems like a given. If I designed it then I should be allowed to see it built. Maybe it's in a state statute?

 

[dcarr82775]

I don't believe you have a legal right to visit the jobsite. It is not your property, and if the Building Department does not require you to be there as part of the permitting process I don't see how you have any rights to be there. You would be trespassing.

I would make sure I get something in writing from the GC saying you are not to visit the site, and then send a letter to the various parties, including the Building Department, noting as much.

 

[ajk1]

I would lose sleep over honeycombing in ICF construction. I would lose a LOT of sleep over that. That in fact is the Achilles heal of that form of construction. Wasn't there an ICF building that collapsed within the last few years, because they did not get the grout in to fill the cells? In any event, I agree entirely with BARetired's wise comments. Your responsibility as a professional is to conduct yourself based on the public safety being paramount. Any fine points about whether you have right to inspect or not must be subordinate to that. Do they have an inspection company or the structural firm inspecting it? If so, that would put a different light on things.

 

[dhengr]

Vato:
The whole business and meaning of engineering has gotten so bastardized and commoditized that an old goat like me hardly recognizes it any longer. Almost everyone is a professional, if they’ve done the same assignment twice: drafted the same simple beam twice, they’re an engineer; used the same hammer twice on a job, they’re a builder, and if they have a P/U truck they are a GC; or have some ceement slop on their jeans, they’re a professional ceement contractor. There’s no need to know what you are doing any longer, to have some experience at what your are doing, you can find it on the internet, you can watch a video, and you’re an expert. You can model it on the computer, in BIM, and get it to dance for you, never mind it can’t practically be built. You have a double problem here, in that the GC and the owner appear to be one in the same. They bought a structural design, and now you should get lost. You have to hope they don’t want a hunk of crap as their final structure, and then that you can defend your design if something does go wrong.

I would list the defects that you saw, before you were more or less kicked of the site. I would include a copy of the e-mail telling you to stay away, and I would advise the BO, by letter for the record, with a copy to the owner/GC that you are not (not allowed to) observing the work, so they probably should pay a little more attention on their code inspections. Then, cross your fingers, hope the owner cares enough to do a good job, ...and get lost. They probably can keep you off the site if they really want to, and that’s probably not worth the fight, at this time; as long as you are on the record as to your involvement after providing the design. You may not want them as a client in the future. And, you may want to rework your contracts to better define your rights, duties and obligations. While that’s not the fun part of engineering (fun these days?) it may be just as important as doing a quality engineering job.

Our attorneys and insurers tell us there is a significant difference in observation (you’re looking around to assure general conformance) and inspection, where you might be on the hook for anything you inadvertently missed or you might be assuming responsibilities for the GC’s work and obligations, which you shouldn’t assume. The attorneys hope this stuff ends up in court or arbitration, that’s their full employment program; insurers hope nothing goes wrong, but are happy to split the cost three or four ways and/or subrogate, and they just add the costs to our next premiums. It used to be that no one knew your design and intent better than you did, as the EOR, and that logic still holds true. But, if we can get four more layers of companies/people involved in the loop, that means that the wronged party has four more deep ‘pockets to pick’ if something goes wrong.

 

[SteelPE]

In some of the jurisdictions I work in I am required to sign a "Construction Control" affidavit prior to construction. This affidavit basically requires me to:

"be present at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the work and to determine if the work is being performed in a manner consistent with the construction documents and the code."

This certification is required for buildings greater than 35,000 cubic feet. One and two family dwellings are excluded from this part of the code.

So for most commercial buildings I add site visits to my proposal as I know they are going to fall under these requirements an ultimately require me to sign off on the building once it is complete. However, one and two family dwellings I might not necessarily provide this service as this would be covered by the building official. If the owner requests the service I will adjust accordingly.

I have had instances where the client asked for the sign off on small projects and I refused because this was not included in my contract and I did not visit the site during construction. This never goes over well.

 

[MacGruber22]

Our attorneys and insurers tell us there is a significant difference in observation (you’re looking around to assure general conformance) and inspection

That is precisely the legal advice that is typical where I am in the Baltimore/D.C. area.

 

[msquared48]

The problem that I have is that irrespective of whether it is "observation" or "inspection", if you see some thing that is not right, you have a due diligence to report it to the owner and/or jurisdiction. What happens after that depends.

That being said, it also raises the question, "What did I miss?" And a lawyer would ask ... "Since you found that error, why didn't you check further?"

So, unless I am specifically contracted to do so, I stay the hell away. The good Samaritan clause does not apply to you here. You may have the rignt to "observe", but you do not have the "obligation".

Mike McCann, PE, SE (WA)

 

[JLNJ]

Is this residential construction?

If not, how are you under IBC jurisdiction and no special inspection requirements? (Unless the provision to waive them for minor work was granted.)