Being "Released" from Structural Engineering within an EPC Power Project 5

[structuralsteelhead]

Roughly 67% of a power plant project's structural design and detailing has been completed by our firm. We have been informed that the contractor which procured Engineering Design from my client, has been asked to release our firm of duties for structural engineering support. Owner/Power Client Project Specifications, unfavorable site soils conditions, including moisture sensitive concerns, drove the need for large over excavations, and deeper bottom of footings then the contractor was used to "seeing at other similar" projects. I want to maintain good working relations with my client, but feel he has dropped the ball in letting his client make this decision without allowing us a formal rebuttal to his opinions of our conservative detailing. While we will be reimbursed for our completed work, I believe he has left himself exposed to a greater loss with regards to finding new structural engineering support, finding structural engineering support at the same rate as our firm, meeting project deadlines. In addition, I feel it may be in my best interest to remove myself as Engineer of Record for the structural design items we have completed, some of which are approved and under construction. This action, of course, would create quite a fallout.

I have authored a rebuttal to the letter written by the contractor. This letter, like his, addressed to my client. I have fully explained our conservative designs, if that's what they were in the opinion of the contractor, were merely the product of Owner Structural Specifications, Geotechnical Foundation Recommendations, Modern Anchorage Design requirements, and also holding fast to a mass concrete design mix formulary which I am comfortable with and accustomed to using for respective foundations. The letter is detailed, unlike the vague statement from the contractor that our design are excessively conservative.

I have not sent the letter. I have made a phone call to my client discussed it's content and my concerns for myself, and for him.

The contractor has stated in his letter that the new structural engineering firm will have to be approved by them before contracted by my engineering consulting client.

Questions:
1. What would you do in this situation? Take the fee for your work completed and walk away? Take the fee, remove yourself as Engineer of Record for the Project elements you have designed and detailed? Can you actually take a fee for the work if you remove yourself as Engineer of Record. I want my time covered, maybe a reduced fee for removing myself as EOR.
2. If I remove myself as EOR, will I still be liable in some way?
3. I feel an obligation to notify the Owner, over everyone's head in this EPC that I have been removed from their project for being "excessively conservative". If I do this, as stated above, would tend to create quite a fallout yes? I don't think the contractor has thought this out. Most of the big ticket items have been completed, so I truly feel that this is more about the mix design and mass concrete curing and thermal considerations that come along with such placements which he is not happy about because he "hasn't seen this before in other similar projects". Thus I suspect he wants to be rid of me prior to this concrete placement so I don't ask questions about structural observations and inspection personnel. I've served my useful purpose.

4. The new structural engineering representative will have to review and approve my work currently under construction if I remove myself as EOR, yes?

5. My clients accounts payable tab continues to grow. Everyone's exposure to fallouts/lawsuits has occurred due to the contractor's actions, yes? In protecting myself, I put my client into the spot light, increasing his exposure, and thus up the chain as the contractor hired my client. Quite a mess, yes?

My client prefers to keep their structural engineering support in the background, which in my opinion has attributed to a less efficient and potentially miscommunicated relationship with their client concerning structural matters. Most importantly, our inability to establish trust and a general rapport with the General Contractor is just bad for my business and reputation. This was brought to my client's attention and they agree best to have us on the front lines/meetings when discussing structural items in the future.

Any thoughts and/responses to questions would be appreciated by the group, especially structural who have been in the same situation.
Thanks,
Bill

 

[hokie66]

It is difficult to understand the project's organization structure. Who is your client? Who is your client's client?

 

[structuralsteelhead]

Yes, to answer, Hokie66........My client is an Construction Management Firm that specializes in Power projects. Their staff consists primarily of Mechanical and Electrical engineers. They very often use and/or ask me to bid as a subcontractor directly to them the structural portions of the projects they pursue or are already awarded. This will be my fifth similar power project with them. With this project, they have been contracted for Engineering only and apparently have no construction administration duties within their contract. Their client is the EPC general contractor for the project. The EPC Contractor is building/constructing the project and have secured engineering (my client and myself) for the project. They have asked my client to "replace" me with another structural engineering professional. This professional to be approved by them this time around. (I wonder exactly how that approval process will be conducted?) Not to confuse the issue, but their is actually a larger consultant managing the entire project delivery to the client, which is a public utility company.

 

[Ron]

Yes, the structure is confusing, but it seems you are third tier, hired under a design team, hired by a contractor....bad all around.

Here's my advice for what it's worth!....

1. Do not justify your engineering judgment in writing. You've already done that in your design. Anything you add could confuse and conflict.
2. Get your money. You've provided services based on your client's needs as you perceived them and based on your engineering judgment from the constraints within which you had to provide the services, including the site conditions and other issues that led to your decisions.
3. Do not send a rebuttal letter unless they decide to not pay your fees. Even then, I would hesitate as that might come back to haunt you, particularly if there is subsequent litigation. You'll be defensive of your engineering position which, again, might only confuse or conflict the issues.
4. Remove yourself as the EOR. Removing yourself as EOR does NOT mean you give up any fees. To do so would be an admission that they are correct and should be compensated for your conservative design. If you do that you'll possibly open yourself up to later claims of incompetence. Not good. Ask for and press for all that is owed you and include statements that you provided engineering consistent with the standard of care of the area (assuming you did so). Make no apologies for your actions.
5. I don't know what state you're in if in the US, but there is a provision in many engineering laws in the states, that if your engineering judgment is overruled by a lay authority (in this case the contractor...since they have given a reason for firing you that states they disagree with your engineering judgment), you have an obligation to inform the owner, your client, and any authority having jurisdiction (such as a building official, regulatory authority, etc.) of the fact that your engineering judgment is being superceded or subverted and the project is proceeding against your recommendation and engineering judgment.

 

[structuralsteelhead]

Ron, Your advice is worth millions (knock on wood), I am very grateful,.....where do I send my check/donation/contribution to the greater ET cause? Yes, yes, the contract structure,.....I am way, way down the EPC chain, but as you listed,....your responses,1 to 4, as I may have suspected to be true and thus held off sending the rebuttal letter and kept my concerns to a phone call at this point. There may be a time later where something written may be required, at that time I may very well have to retain legal counsel to review such. Number 5,....yes, I'm in the US, and knew this/owner notification to potentially also be the case.....it's what is keeping me up at night right now. I will research the Prof, Engr.s Act for this passage/requirement. I would prefer to finish the project, potentially finding this provision/article regarding notifying the owner. Then, cite the passage and source, and forward to my client with the intent that he may forward it to his client to have him rescind his request for my removal. Again, I don't believe the contractor has fully considered the ramifications of his actions. Seems like keeping me to finish the incidental site structures it best for everyone, except for maybe myself.

I feel my client wishes me to be a good soldier and keep quite and has stated what has happened will not affect 'our' future working relationship. My client is not the most assertive and I feel he has done himself an disservice in letting the contractor bully him into the position we are at now. He should have given me the chance to defend this action via conversation directly with the contractor for starters and then by my numbers (which do not lie) if the need be.

Thanks again for your comments, Ron.

 

[TLHS]

You might want to seriously consider talking to your insurance company and/or lawyer to see what you need to do to limit your liability in this situation.

 

[structuralsteelhead]

Thank you TLHS. Yes, we'll see how that goes, not sure what they'll say, if I ever needed coverage, I think I would need it now. But yes, am planning on having this conversation with my insurance agent, calling the respective state board, discuss the details, and begin discussions regarding removing myself as EOR, all very distressing, first and foremost protecting myself as much as I can for future potential fallout.

Working on agreed invoice with my client at this point for current snapshot of services performed. Asking for payment upon receipt. I agreed to assist in handoff to new civil/structural; however, he graciously declined and told me I've been through enough. Most items left on site are Equipment pads, site lighting, pipe racks, cable stay structure and a foundation for a pre-engineered manufactured building. The Generator/Turbine Foundation, Mezzanines/Mezz. Foundations, Elevated Filter Housing Structure/Foundations, Stack Foundations, Containment Structures, Vaults, Control Room Foundations, and quite a number of centerline accessory foundations.....design and detailing completed by us and under construction.

Have checked the state's professional engineering laws as suggested by Ron, in the state where the project is located of which I am licensed in as well, has a very similar passage under Rules of Professional Conduct,....Licensees responsibilities to "Notify their employer or client and such other authority as may be appropriate of any instance in which their professional judgment is overruled under circumstances endangering the public safety, health, welfare or property." I can't truly state I know for a fact that the contractor has overruled any of my decisions or is in non-compliance to specifications or contract documents as I was not onsite or had access to construction administration responsibilities.

However, I am letting the owner know I have been relieved of my EOR duties for reasons of being "excessively conservative" although I do not feel that I have been and followed project specifications and the geotechnical report in sizing foundations and also inform them that I am removing myself as EOR. I'll mention the contractor's decision to have me released came within a twenty four hour period after I rejected another high early strength concrete mix design for a mass concrete structure to be placed in temperatures nearing a need for concern and contractor resisting need for insulating blankets and temperature controls, resisting forwarding of names of structural observation and inspection agencies on site monitoring work. I wont accuse the contactor of doing anything, I'll advise the owner that it may be in his best interest to ask the contractor who is performing structural observations and inspections on site as this typical documentation process did not occur as has been the case some other public utilities agency work I have been involved with. Some insist they perform their own SO and Special Inspections. And as owners, they are responsible, it does state in my structural notes/specifications that they and contractor are responsible to secure professional engineering SO and Independent SI's. I may just leave it at that, but feel once the cat is out of the bag the real fallout will begin. Really don't know what to expect. Will do my best to protect myself, and in doing so I may most likely lose a client, but this problem is not worth any client.

Probably too much detail here. I will follow up with general info after some time to close.

 

[msquared48]

If the jurisdiction is worth it's salt, removing yourself as the ER with the letter should prompt an automatic red tag that should get their attention.

Mike McCann, PE, SE (WA)