Ethical Responsibility? 1

[gmf]

An Engineer provides a design for the client (an addition to an existing building). After the client has arranged to have the excavation phase completed, the Engineer comes back admitting that he/she has made a mistake and overestimated the amount of excavation required. The mistake ends up costing the client more money than necessary.

What is the Engineer's ethical responsibility in this case? Should the Engineer have to pay from his/her own pocket to compensate for the mistake?

Note: The client retained the design services of the Engineer and will be taking care of the construction phase themselves.

 

[FFIELD]

Most consulting engineers have "error and omission" insurance to cover situations like this. If not the engineer is responsible for his or her mistakes.

 

[SlideRuleEra]

There are a lot of factors to consider:
1. How large was the error?
2. How much extra money was spent because of the error?
3. Even though there was an error, did the client receive any benefit (even a small one) from the extra work involved?
4. How was the estimate of excavation presented? Was it an estimated quantity that nobody should have expected to be precise? Was it the basis for unit price bids? Was it a binding number used by bidders to compute a fixed lump sum price for the job?
5. Errors & Omissions Insurance should provide coverage, but used only as a last resort. Once used, the already high premium will probably go though the roof or coverage may become unavailable.

 

[Lutfi]

Let me start by saying that SlideRuleEra's questions are very practical and are valid. I think the engineer must evaluate the error based on the question that Slide Rule raised and may be more depending on the situation. Then I would meet with the owner and discuss in detail the problem, implications and solution. This could save more time and money for the owner of the owner did not complete the excavation. At a minimum, the engineer must rectify his plans at his expense (in some cases this can be costly!)

I read your comment that the owner did not retain the engineer during construction. In my company this is NOT DESIREABLE. Our insurance carrier discourages us from accepting such terms. However, if the owner insists, we explain to the owner the significance of having the engineer of record support them during construction.

I can not tell you how many times owners came back to us to save them because no one competent reviewed the shop drawings and no engineer inspected the construction. Owners often fall victim to contractors who advices them in certain way whilst he is not aware of code implications and valid technical rational for the design. This is a very sticky liability issue. My position is either I get involved or keep me out 100% unless there is a design issue.

 

[RDK]

There is also an ethics forum where this topic would get a wider exposure. The issue is not a civil/construction issue but also is applicable to a wider technical audience. You may want to post a link to this thread there and continue the discussion there.

In any case it is clear that it is the engineer’s ethical obligation to admit the error. What is not clear is the extent of the engineer’s liability.

To address this issue we need some more information. Was it an error in the design that resulted in an over excavation? If so then it could be the engineer’s responsibility to pay for the error.

Was it an error in the unit qualities that resulted in the unit price being adjusted to reflect the lower quantity? If so then the adjusted unit price should reflect the amount that would have been in place if the correct information were presented in the first place and there is no harm caused by the error. (Although some owners have a little trouble with this concept.)

The presence or absence of error and omission insurance is irrelevant. If the engineer has to pay then he has to pay, if he has insurance to protect himself then the money comes form the insurance company if not then out of his pocket. (Assuming that the engineer does not become bankrupt in the process.)

When was the error discovered? Had construction commenced or not?

If you can fill us in, jmf, we can help you some more.





Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion

http://www.kitsonengineering.com

 

[gmf]

Some information for the original question:

1) Yes, it was an error in design that resulted in an over excavation. The size of the foundation was four times more than needed and therefore, the excavation was four times more as well.
2) The Client did somewhat benefit from the correction to the error.
3) There was no bid process for the job. The Client is capable of performing the construction themselves.
4) The Client completed the excavation for the original design before the error was brought to the Client's attention.

 

[RDK]

Based on what you have provided, I would hazard an opinion that the engineer would be liable for costs less the benefit the client obtained from the over excavation.

If we are talking an actual situation here a number of other factors could come into play. (I am assuming that you are the engineer, if not then please forgive me.)

Is there a contract where the engineer’s liability is limited to insurance proceeds or payment received? (You may want to pay more than you are liable for to prevent a complaint to the discipline board of your local association.)

What is the magnitude of the claim? (Even if over the deductible on your insurance you may want to pay because once you lose your claims free status the costs will skyrocket if coverage is available.)

Is the client making a claim? Is this claim a reasonable estimate of the actual costs? (If the client does not claim then there is no issue, if the claim is unreasonable then this will weaken the clients credibility.)

What is the nature of the engineer-client relationship? Is this a one time client or a long term ongoing relationship? Are relations friendly or strained? (If a friendly long term relationship, then perhaps you could work off the claim or come to some other arrangement, if a one time client then you may be out of pocket.)

Was this a rushed design or one where there was a lot of time to review and consider all factors? (In a rush job the potential for error is higher and one could argue that the client assumes part of this risk.)

If this is an actual situation and you are the engineer, then it’s not too soon to contact a lawyer. (It may be too late!)



Rick Kitson MBA P.Eng

Construction Project Management
From conception to completion

http://www.kitsonengineering.com

 

[Lutfi]

Why not sit down with the owner, discuss the entire situation and see what it takes to make him happy. The owner may not want to complain (although I get the feeling he is, otherwise this question would not been raised).

How much money are we talking about? Or how much more earth was removed? Is this for a simple one footing (and how many footings) or a large mat foundation?

I have a problem with running to the insurance company every time there is a minor or small problem. Some engineers limit their liability to the design fee (insurance carriers encourage this!)

I am not fully apprised of the situation to proclaim that we need to file a complaint with state board! I think is premature conclusion and it warrants more details.

I agree with the assessment that a reduction is due if the owner benefited and also if the engineer was rushed, partial risk must be borne by the client.