LEGAL BY GERARD W. ITTIG
After all of these professional efforts,
you, the electrical contractor, are asked
to bid on the project. So far, this process
seems typical. Then comes the first tug:
The bid documents (and later your subcontract) specify that you have reviewed
the design and agreed to notify the owner
if you detect any errors or omissions by
the design team. Some contract documents go further and require you to agree
that you have satisfied yourself about the
requirements of the plans and specifications, whatever that means.
In a real sense, the design team is
requiring you to double-check its work,
but at least superficially, this language
does not shift the design responsibility to
you, though it may make you responsible
for design errors.
Then comes the second tug: Somewhere in your terms and conditions, you
may see a provision that all of your installation must conform to the plans and
specifications and that your installation
will perform properly. This last “and”
at times is referred to as field engineering, a requirement that you fill in gaps in
the design. This language is beginning
to appear to be a shift in some design
responsibility to your company.
For example, on a high-rise condominium job, the project manager caught
a problem with the fire escape design.
The concrete step dimensions contained
an error, ending each set of steps short
of the next floor landing. By the time the
steps were at the seventh floor, this accu-
mulating error would cause the last step
to be too large to meet code. What did
the project manager do? Did he correct
the error and proceed? Did he stop work
and ask the architect for clarification?
He sent a note to the architect about the
problem and stated that he would begin
to pour the steps unless he received a
stop work order. He let it be known that
the decision lay with the architect/engi-neer, not with him.
This project manager might not be collaborative, cooperative, or a team player,
but he could not be accused of breaching
the contract. Many times, though, electrical contractors act differently. How often
have you volunteered your opinion—
solicited or not—on a proper electrical
installation or choice of device or selection of manufacturer if you thought the
designer made an error? By weighing in
on what you consider to be a corrected or
improved design, are you simply complying with your contract, or are you going
further and participating in the design
process? If these actions involve you in the
design, have you increased your liability
because you have involved yourself in a
design decision? These questions don’t
have easy answers, and for that reason
they are worth asking.
A recent decision from a federal
Court of Appeals (Dallas/Ft. Worth
International Airport Board v. INET
Airport Systems, Inc.) seems to have
changed some of these tug-of-war rules.
The Dallas/Ft. Worth Airport Board
wanted to add roof air-conditioning
(AC) units to provide conditioned air
to jetways. The detailed design and layout were created by the Board’s design
team, which also selected the AC manufacturer by name. After the contractor
won the job, it informed the owner’s
construction manager (CM) that it saw
a potential problem with the existing
cold-water lines feeding the coils for the
new units: they might freeze and negatively affect the coils’ function.
Over the next six months, the parties
engaged in a series of meetings and letters searching for a fix, but they did not
reach an agreement. Finally, the Board
terminated the contractor for late completion and assessed liquidated damages.
At that time, the Board had not issued a
corrected design, making it impossible
for the contractor to finish.
At the trial level, the court had little
difficulty in ruling for the contractor.
The contractor followed all of the rules:
It notified the CM of the problem, and
it waited for a decision before proceeding. All of the parties acknowledged
there was a defect in the owner’s design,
but the contractor had no involvement
in that design, and thus had no right to
change the design.
There was one problem with the
contract from the owner’s perspective,
and that was in the change-order clause,
which stated the contractor was not to CH
Whose Design Is It Anyway?
A shift in design responsibility
THERE IS A TUG OF WAR in construction contracts over design responsibility and
liability. An owner’s design team will spend months preparing detailed drawings and
specifications. These are licensed professionals whose stamp on the plans indicates
their state has authorized them to perform this important task. These plans then
often go through further review, for example, by the owner’s insurance company or