|
|
||
|
FEATURED
ARTICLE
|
||
|
METHODS AND PROCEDURES by Samuel Y. Harris with Rachel Royer
The term “methods and procedures” rises almost to the level of a code
phrase for an array of specific and general issues associated with the
construction industry. The
shortest and simplest introduction to the term and to its implications is to
simply expand the words to a longer phrase, which begins to suggest those
implications. The methods and
procedures at issue are those which are employed by contractors and builders
in order to execute the design intentions presented by the design profession
in the instruments of service, specifically the specifications and drawings
for a given project. Quite
simply, the standard of the industry is that a design professional produces
the design documents which are incorporated along with the contracts, bid
forms, and other “front end” documents and which taken together are the
instruments of service.
It is the responsibility of the contractor/builder
to execute the project based on those instruments in manners and ways of her
choosing as long as those ways and manners are reasonable and safe.
The presumption is that a practiced builder will elect methods most
suitable from among equally valid approaches.
Because the builder is the party responsible for the safe and compliant
execution of the design, it is legally and financially reasonable for her to
choose from among the available viable methods and procedures to be employed
at the job site.
This presumption within our industry has grown out
of yet another presumption, which grossly and adversely affects our
professions and our industry, namely, that the project involves a clear site
and a new free-standing building. This
presumption and prejudice is implicit in standard AIA contracts, in
professional educations of design professionals, in awards systems within the
design professions, and within the legal precedents applicable to the
governance of our industry. As
soon as the project involves an addition, a renovation, or an alteration, the
weaknesses of these prejudices and presumptions begin to manifest.
When the project involves an existing, historic structure the manifest
limitations of the prejudices and presumptions of the industry can and often
are simply contrary to the interests of the parties.
As a general rule of property law and of the
construction industry, the owner “brings the site”, meaning that the owner
presents the site to both the design team and to the construction team.
Any flaws or detriments associated with the property are inherent in it
and, therefore, also the property of the owner.
Such existing conditions include underground water, rock, graves and
underground utilities, which may not be identified during due diligence
conducted by the design professional. This
means that, unless negotiated otherwise, the owner bears the risks associated
with the site. If there is an
uncharted underground stream below the surface and its discovery during
construction adversely affects the builder, the owner bears the burden of the
consequences. While owners often
resist this principle, they may keep in mind that the discovery of a
significant gold deposit under the site also accrues to the owner, not the
builder
Inasmuch as owners typically view the likelihood of
hitting worthless rock or water as far greater than of hitting valuable ores,
they may and often do want to shift the burden of risk to some other party;
and, indeed, there is no principle of law prohibiting the redistribution of
site related risks. In the case
of the discovery of below grade and untoward rock, the owner may instruct the
design professional to specify that the excavation is
"unclassified", which is a term of art meaning that the excavator
agrees to create the required excavation regardless of what lies below the
surface. Needless to say, a prudent excavator will want to avoid
unwarranted risks and may include as part of her bid sufficient amounts of
money in order to conduct below grade explorations, or she may simply add
enough money to overcome such risks.
Either way, the Owner has affected a reallocation of excavation risks.
The same principle applies to existing buildings:
Unless otherwise reallocated, the risks associated with detriments and flaws
of an existing structure are the property and responsibility of the owner. As
with site conditions, the burden of discovery of such detriments does not
automatically vest with the design professional and/or the construction team.
While such risks can be reallocated, if they are not specifically
shifted and the designer or the builder is damaged or delayed during
construction, the liability and burden of cost brought on by these conditions
usually lies with the owner.
If a reasonable examination of existing
buildings by the design professional prior to the start of construction
uncovers no potentially detrimental conditions, the ultimate responsibility
still lies with the owner if such conditions are discovered during
construction.
In a reasonable effort to reduce the
risks of discovered conditions, owners often authorize and expect the design
team to inspect and, in fact, to find the latent flaws of an existing
building. Certainly and important
reason for conducting investigations and surveys is to determine the nature
and extent of latent conditions which may affect construction feasibility.
Some owners assume that since the purpose of such efforts is to
mitigate risk that they have effectively reallocated the risks as well.
This may or may not be the case. If
a practitioner understands that an essential element of an investigation is
for the purpose of risk reassignment and agrees to accept the risk, then an
owner may presume that she bears no further responsibility for the flaws of
her building. This is tempered by
cases where the flaw was not "reasonably" apparent to the
practitioner. If, for example,
the flaw lay buried inside a reinforced concrete column that exhibited no
manifest distress, a reasonably diligent investigator is not normally held
liable for the non-discovery of the flaw.
On the other hand, if a large crack is obviously increasing in length
and width across a critical section of the same column and the investigator
discounts the significance of such a crack, then she probably does so at her
peril.
In instances involving modification of
existing buildings, the reasons for an intervention may derive from any number
of motives ranging from cosmetic to structural. Regardless of the motive, the intervention in the building in
any way is to some extent or other affected by the mere existence of the
building as a physical object. A
carpenter cannot simply install a new floor joist, for example, without taking
into account that the area is not free of obstructions and encumbrances to the
removal of the existing joist and installation of the replacement.
The price and risk associated with such a replacement must and
ordinarily takes into account the extraction, stabilization, and
reinstallation sequence to affect the objective.
The development of the specific sequence of events resulting in the
satisfactory replacement of the joist is typically reserved as the prerogative
of the builder. This is not
unreasonable by virtue of the simple fact that the builder has to do the work,
is responsible for compliance of the work with the design documents, and is
historically responsible for methods and procedures pursuant to the work.
When building fabric begins to take on
attributed historic value, the least expensive and least complicated approach
to methods and procedures that will accomplish the design intent may not be
appropriate. In order
to avoid unintentional damage that could be cause by the builder, a design
professional experienced in working with historic structures must step in with
a deliberate implementation plan. Due
to the added risks involved, agreements between design professionals and
owners should more specifically outline the tasks of the job and how they are
to be accomplished so the design professional is protected from added
liability associated with assuming the role of determining the methods and
procedures for a project.
The
proposal to have the design professional stipulate methods and procedures
rather than allowing the builder to do so causes a potential conflict with
liability. Currently, methods and
procedures are left up to the builder and the liability for the efficacy of
those methods and procedures flows to the builder. Reassigning the task of
deciding methods and procedures to the design professional effectively removes
that liability from the builder. However,
it is contrary to the standard language of AIA contracts and insurance
policies for the design professional to assume the liability for methods and
procedures. The design
professional is left in an awkward position with a difficult decision to make:
Expose the building to the risk of damaged or lost historic fabric or expose
himself to an uninsured professional risk.
S.
Harris & Co. recently assumed this professional risk in the interest of
conserving historic material. The
firm prescribed a step-by-step method to stabilize the Mensch Mill Barn in
Alburtis, Pennsylvania. This
project was unusual and should not be viewed as a general recommendation. Ordinarily, it is the practice of S. Harris & Co. to
stabilize a structure in its existing form, rather than attempting to reverse
the consequences of time. However,
in this particular case, the distortion of the structural members of the barn
resulted in severe disengagement of joints.
The lightness and flexibility of the frame allowed for some degree of
distortion reversal, which was determined to be appropriate, feasible and
desirable. If the drawings simply called for the building to be straightened to a certain degree, there would be a risk of fracturing the surviving joints. Instead, the drawings called for a prescriptive procedure with Engineering supervision, allowing for the option to interrupt the process if required. Existing conditions were documented on the first few pages of the drawing set and were followed by a page containing the Scope of Work. The eleven steps in the Scope were then illustrated on the remaining pages in the drawing set. Due to the delicate state of the structure, sequencing is very important in this procedure.
Step
One was to install shoring at all bents in the specified location.
Once shoring was in place, Step Two was to remove the upper scissor
braces at all locations.
Step
Three was to insert horizontal braces at all bents along the collector beam
for added stability. More support
was added in Step Four, when diagonal knee braces were called out for
installation at all bents.
With
the additional support in place, the lower scissor braces were removed at all
locations in Step Five.
The
straightening process began in Step Six, with the installation of east-west
tie rods at bents B, C, C’ and D. This
step called for a specific connection detail, shown below.
A
similar connection detail was required for Step Seven, in which the
installation of diagonal tie rods, at specified locations, was called for.
The
final step, Step Eleven, was to remove all shoring and knee bracing and allow
the stabilized and reinforced structure to stand.
The
process was as much an engineering issue as the finished product. The prescription of specific methods and procedures in
historic preservation should not be unusual.
To do otherwise is more professionally irresponsible than the
consequence of venturing into a non-traditional area of professional
responsibility in the construction field.
Construction
history, liability and law hold that design professionals should not cross
into the area of methods and procedures.
There is an existing conflict between contract law, insurance law and
the realities of the associated risks of preservation.
There is no easy way to reconcile this conflict between the parties
involved: the design professional, the builder, the legislature, the insurance
industry and the owner.
The
design professional is not covered by current contract or insurance language
to certify to the owner that methods and procedures are up to construction
standards. By doing so, the
design professional is effectively self-insuring, which could result in
negligence on their part and increase risk for the owner.
Without the backing of insurance, the design professional probably does
not have the money to back themselves, so the ultimately, according to the
Rule of Agency, liability falls to the owner if there is added cost resulting
in methods and procedures specified by the design professional.
Moving
the liability of methods and procedures elsewhere puts the builder in a good
position. Compensation would be
adjusted accordingly for the effort of execution of the methods and procedures
prescribed by the design professional and the builder would be absolved of any
liability if the alteration did not perform as expected.
The contract documents should acknowledge the intrusion to typical
prerogative of the builder. Such
a reassignment of tasks would most likely not raise protest from builders.
To
expect change at the legislative level for this issue is unrealistic. Changes in insurance are possible, but not likely.
Design professionals could add coverage to existing policies to include
specifying methods and procedures. Along
the same lines, a design professional could break out a separate fee and
acquire additional compensation from the owner designated specifically for the
purchase of an insurance policy for the job in order for the design
professional to assume the risk. However,
recognition of involvement in design/build activities would increase premiums
across the board despite its application to only a few practitioners.
To expect the general practitioner not involved in projects on existing
or historic buildings to absorb this cost is unrealistic.
The
process of elimination places the burden of liability on the owner, which is
the most practical solution from a business standpoint.
This would require informed consent or that the professional explain
the methods and procedures to the owner.
The design professional must ensure that the owner is prepared to
absorb the ultimate risk for the methods and procedures required to accomplish
the project that they request and it should be written into the contract
between the two parties. With
informed consent, the owner is not forced to assume the risk associated with
the project; the owner is given the option to cancel the project, rather than
being surprised by discovered conditions later in the project. Still, placing the liability on the owner for existing or historic building projects makes the most legal sense, because the Owner “brings the site”. The original site condition requires engagement in risky methods in order to accomplish the owner’s objective. This is always latent in a property, as much with an existing building as with the more generally acknowledged uncharted utilities .Preservation projects must be a cooperative effort. Owners that are undertaking an effort to preserve their building with the use of a design professional generally are already willing to assume a more complicated and costly project. The redistribution of liability as discussed above ensures that the project is completed in a way that protects the most historic fabric while accomplishing the design objective. As more properties are becoming historic and more citizens are taking an interest in preservation, revamping an outdated system is necessary. |
||
|
|
||
