Case History 89
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Tim: Welcome to the GBA case history Series brought to you by the GBA podcast. My name is Tim Rodriguez and I am the Chief Operating Officer at BSK Associates.

Liz: And I am Elizabeth Brown, principal geotechnical engineer at JLT Consultants. So today we are gonna do a deep dive into case history number 89. And this one has got a twist that shows you what happens when the architect, not the contractor, becomes your biggest obstacle.

Tim: Yeah, this is a fascinating case because it totally flips the script on who we usually expect to be the problem child on a construction project, which is typically the contractor, that's where the finger gets pointed.

Liz: Exactly, so a little bit of a different game. So it's gonna be interesting to see how this all plays out. So instead of like the typical. Contractor cutting corner story, which we've all heard, you know, a million times. This is about a design team that was led by an architect that, you know, maybe had a serious attitude [00:01:00] problem and essentially put up a gag order on the geoprofessionals.

Tim: Right. So picture this, an HMO or a health maintenance organization purchases a property for a new medical facility they wanna build. The site has some serious geological challenges. They've got glacially, deposited clays, underlayed by high plasticity clays, and expansive shale, all topped off with up to 10 feet of fill material.

Liz: Oh, that sounds like a challenge. So the member firm conducted the geotechnical study. And they were hired to do the construction inspection and materials testing during the building phase, which is fairly common. So they weren't just the consultants who wrote the reports and disappear and go away, like they were actually there every day onsite during construction, to make sure that those recommendations of that geotech report were being followed.

Tim: Right, and that's normally what we're [00:02:00] looking to do, carry it on from the geotech investigation and recommendation phase into construction. Great seamless continuity for the project. So the member firm delivered their geotech report and then later an addendum that addressed the subgrade preparation and pavement design.

And everything seemed professional, thorough until there became some real drama, and it wasn't with the contractor.

Liz: So in this case, the first sign of trouble came when the member firm's project manager recommended using clay rather than granular fill for backfill around some drilled piers. So, I mean, this was a sound engineering decision based on the actual site conditions.

Tim: Right, and the project manager issued a letter to the constructor's superintendent expressing his preference for clay. Two days later, the superintendent and the members' firm field representative met and agreed that only low plasticity clay would be used as backfill.

Liz: So [00:03:00] it sounds like there's some good communication, you know, going on there between the member firm and the superintendent. So, I mean, that's, that's all good. And they even replaced the granular materials that had already been placed and plan to explain the issue at the next weekly project meeting. So, this is exactly what you would expect from a professional and a collaborative team, right.

Tim: Not in this case. The client rep quickly dispatched a memo to the project manager and told him that the member firm needed to stop making field judgements,

Liz: That's kind of, kind of interesting 'cause that's kind of their, their job is to make those field judgements

Tim: Definitely contributing. It seems like at this point to a conducive work environment for everybody on the team.

Liz: Right, exactly. So here's the key quote from the case quote. The client representative explained the protocol the member firm was to follow, [00:04:00] emphasizing that the interpretation of contract documents rests solely with the architect and its consulting engineers.

Tim: Right. Like you could translate that to just be shut up, follow the plans, and even if you see a better way or a problem developing, we don't, we don't care.

Liz: Yeah, talk about, uh, not a good way to run a project, right? You're kind of exposing yourself to more risk at that point. Which, kind of is exactly what happens, like it gets worse. So the member firm's project manager, you know, kinda ruffled some feathers by failing to send a copy of his letter to the other design team members.

And by having the field representative meet with the constructor superintendent alone.

Tim: Yeah, and this really got the architect unhappy. He wasn't happy about being bypassed, and in fact, the architect prepared a letter stating that, in his [00:05:00] opinion, the member firm was totally lax about enforcing the pier and earthwork specifications on the project.

Liz: Yeah, it's just, that's awful. Like, like can you imagine? Right. Like can you imagine the member firm is trying to improve the project by recommending better materials, and then the architect comes along and accuses them of being too lenient.

Tim: Well then came the coup de gras. So the project manager was called on the carpet, at the owner architect constructor meeting, and the owner's engineer, construction advisor and architect made it crystal clear that if they wanted the member firm's opinion, they would ask for it. And this is just like, leaves us such a bad flavor.

I mean, project and, client selection comes to mind in this particular case. But, anyway, we'll carry on.

Liz: They're not wanting to have the project move forward, [00:06:00] like to, to get the best product out there really is kind of what, what's kind of happening. Kind of like a maybe a little bit of an ego issue is what it kind of sounds like.

Tim: totally.

Liz: So here, here's another key quote. They reminded the project manager that the firm was on site as a testing agency, not to exercise judgment about concrete and soils.

Tim: The client had engaged the firm to enforce plans and specifications rigorously. The project manager was told and it needed to do just that.

Liz: Yeah, it's kind of turning into a, a bit of a toxic situation. So the restrictions were incredibly detailed and punitive. All meetings had to in include an architect's representative, and if clarifications were needed, they would come only from the architect. No one had authority to deviate from the plans.

Tim: And to add insult to injury, the member [00:07:00] firm was required to scan and submit copies of its handwritten field reports to the architect on the same day. Services were completed with word processed versions to follow within five days. And, and this is, you know, not completely uncommon, but the fact that they were making an emphasizing the requirement to do so, just kind of , is really indicative of somebody trying to put a firm in their place.

Liz: Exactly. So they were essentially turned into a glorified data collectors with no professional autonomy. So the architect wanted complete control over every aspect of the project.

Tim: And so the member firm, senior staff discussed what took place and transpired and directed their field representatives to do exactly what the client requested. They were gonna enforce the plans and specifications as written and recommend alternative approaches only if they were specifically requested to do so.[00:08:00] 

Liz: So, you know, things roll forward. The project is moving forward and there was a time when the pavement started failing. And guess who the design team blamed? I mean, not themselves, right? For creating rigid and impractical specifications. And they didn't blame the contractor who may or may not have cut corners.

They blamed the member firm for not quote, enforcing the very specifications they were forbidden from questioning.

Tim: Yeah, and the actual case history notes, record that the architect of record had significant influence with the client's development team and did not appreciate the member firms, and possibly geotechnical engineer, in general. He had an overall arrogant attitude towards them.

Liz: Yeah, it just makes it, it makes it tough in that situation, right? Because the, the geo professional is they're trying to do their job and do the [00:09:00] best they can, and they're trying to, to mitigate and limit risk for themselves, but for the project as a whole. And they're just kind of being, you know, shoved down, and not able to, to fully contribute the true value of a geoprofessional.

Tim: Yeah, you definitely wouldn't expect this from other, consulting professionals on a project. The design teams generally are expected to work together on all these fronts.

Liz: right. A project just runs so much smoother when that is the case.

Tim: Yep.

Liz: So the architect was arguing about a quarter inch deviation in recorded concrete slump for piers, suggesting that the loads should have been rejected. Meanwhile, they were ignoring fundamental soil mechanics principles.

Tim: Yeah. And just to clarify, I mean, a quarter inch slump for concrete, is minimal. And that certainly wouldn't in under most conditions, warrant rejection. So that really what they were doing was just trying [00:10:00] to, squeeze on them a little bit and try to make a point, not anything of real practical sense.

When the lawsuit started, the design team strategy was brilliant in its simplicity. If the geotech firm was doing the inspection and testing and problems occurred, then obviously their oversight was insufficient.

Liz: Yeah, but here's where that quote, follow the documents at all costs, instruction backfired spectacularly because the member firm was told to follow those documents so rigidly. They documented exactly how those documents were being followed and exactly where the design team's instructions overrode the sound engineering judgment.

As we've talked about, you know, on plenty of these case histories, right? Documentation is key and they had everything documented.

Tim: Right, and even more so on the project that you can, as all of what we're discussing here is indicated, it was not exactly a smooth sailing [00:11:00] ship, right? So it was great the member firm had a paper trail showing that they were ordered not to provide the very expertise the design team later claimed was missing.

Their detailed documentation proved that the failure wasn't due to the lack of oversight, but due to the design team's refusal to listen to professional recommendations. So what a critical moment to make sure you had your ducks in a row as far as documentation.

Liz: Exactly. So during mediation, when the mediator saw that limitation of liability provision capping the member firm's exposure at $50,000, while the construction firm faced unlimited liability, the whole dynamic shifted.

Tim: Right, and the HMO's project engineer, who's the same guy who signed the original contract. Was able to testify about what he witnessed during construction, and he confirmed that the member firm's recommendations were, completely appropriate and that the problems [00:12:00] arose from not following the recommendations the member firm had tried to make.

Liz: So that was nice that, you know, they had somebody else that was documenting and could confirm, what actually had happened. So the results, well, the HMO dropped their claims against the member firm entirely, and the architects blamed the geotech strategy completely backfired.

Tim: So what are the key lessons when the design team, not the contractor, is your biggest obstacle as in this case?

Liz: Well, I think first one of the things is to recognize that architects can be more problematic than contractors. I mean, that's not normally, the, the stereotype, but, but knowing that, hey, the problem can come from any member of the design team. And if you're being told to follow plans at all costs and not make recommendations.

That really needs to be documented immediately and in writing.

Tim: [00:13:00] Yeah, that, that really saved the member firm in this case. So second, when you're instructed not to exercise professional judgment, you need to confirm that restriction in a follow up memo. So maybe something along the lines of, per our meeting with the architect. The member firm will strictly adhere to the provided construction documents and will refrain from providing supplemental field recommendations, something to close the loop on the communication and expectations, and then make sure you pass, the responsibility back to the folks who seem to want it.

Liz: Right. I know it like, like it kind of sounds like cold, right? Like, hey, you're not being a team player. But in cases like this, like it totally protects your professional liability. When the design team refuses to cooperate and then you know, later tries to blame you for the problems, your documentations definitely act as a shield to protect you.

Showing that, hey, you did do what was right and you were trying to make sure that things went as they should.

Tim: Right. [00:14:00] So, and then the third item is to understand all of the personalities involved and, and make sure you're trying to use personal diplomacy in all of your communications and how you manage yourself on the project. So the case here suggests that better communication with the architect early on may have helped prevent some of the hostility.

Had they been a little more upfront, maybe he would've felt as if they were incorporating his opinion or at least including him in the discussion, which might have created a better perception and an initial, relationship development between the architect and the member firm.

Liz: Yeah, trying to build that relationship there and not, not do a, you know, go along to get along kind of a situation, right? Because. Really, if you just kind of going along with it, even if you know what's wrong, it really, it compromises your professional standards, like, not just like for your company, but you personally as well.

So, I mean, this case really specifically warns, you know, don't allow a fellow professionals hardheaded attitude to intimidate you into [00:15:00] compliance or silence or just going along with it.

Tim: Right. Then fourth, you need to know the limits of your authority before you deviate from plans and specifications. In general, and you know, I'm sure you've had this Liz on, on your own projects, but you know, professionals don't really appreciate, uh, you know, other parties going behind their back to make changes or, you know, step outside of what their purview is.

I mean, you know, the geotechs purview is what it is. And an architect's responsibilities are those, and structural and any other design capacity, you know, individual, professional, has their focus. And so they wanna be retained that responsibility. And, it's also professional, I would say, respect for the other parties when you actually do, pass the torch when needed to the other individual.

Liz: Oh, totally agreed. And it's one of those situations of, Hey, you know what? If there is an issue like. Maybe not bringing it up in a, in a meeting full of the entire design team. Right. But hey, you know, architect, let's, can we, can we have a sidebar [00:16:00] real quick? You, you know what I mean? And like bringing up, hey, this is kind of what's going on, or the situation , and trying to work it through, um, you know, as a professional, I, I think is, is important there as well

Tim: Yeah, yeah. The member firm could have really done a better job of, more clearly, unfortunately, emphasizing to the owner, architecting contractor, the problems they could expect if the recommendations were ignored.

Liz: Right. And when you forbid them from making those recommendations, their meticulous documentation of those restrictions really became their salvation.

Tim: Yeah. You know what I find most interesting about this case?

Liz: What's that?

Tim: It really shows how professional arrogance can completely backfire. I mean, the architects can attempt to control every aspect of the project in silence, the geoprofessionals. Ultimately made the design team liable for the very problems they tried to blame [00:17:00] on others.

Liz: I know it. It's just crazy how that sometimes happens, right? It comes back to just bite them in the butt, I guess. So the follow the documents at all cost instructions, really it created a perfect paper trail showing that the member firm was prevented from exercising their professional judgment that really might have prevented the failures.

Tim: Yeah, and that limitation of liability provision was the cherry on top. I mean once the mediator did the math, I mean, the whole case shifted away from the member firm and onto the parties with the unlimited exposure. So, kudos to the member firm for at least having, a good limitation of liability provision in their agreement.

Liz: Right, and really that's proof that good business practices, you know, like proper, the proper contracts and thorough documentation, clear communication that. It really does pay off when professional relationships turn toxic.

Tim: Right, and we're talking about there being [00:18:00] multiple components to that in this case, right? It wasn't just one, element that was necessarily their defense. They had several layers of defense and it took all of them to actually give them the leverage they needed. So before we wrap it up, let's recap our key takeaways for dealing with this hostile design team situation.

Liz: So I would say number one is document any instructions to limit your professional judgment in writing and do so immediately.

Tim: And number two, confirm restrictions on your authority to follow up memos to create a paper trail.

Liz: Number three, I would say use personal diplomacy, but don't let professional arrogance intimidate you into silence.

Tim: And number four, know your limits of authority before deviating from plans and specifications.

Liz: And number five, if restrictions prevent you from meeting your standard of care, consider walking away from the project. And I know that one's hard, right? We all want work. We [00:19:00] all, want to do our best job. Sometimes it, it can be difficult to, to walk away from your project.

Tim: Yep. And all of these practices that we're describing here could save your firm from becoming the scapegoat in someone else's design failure. So, before we wrap up, let's remind our listeners that the full GBA case History 89 is available through the Geoprofessional Business Association website.

Liz: And if you have enjoyed this discussion, please subscribe to the GBA podcast wherever you get your podcast.

Tim: Thanks for that, Liz. That concludes this episode of the Case History Series brought to you by the GBA podcast. I hope you were able to take away some useful information that will help you and others at your firm make good risk-based decisions in the future.