Case History 98 === Liz: [00:00:00] Welcome to the GBA Case History Series, brought to you by the GBA Podcast. My name is Elizabeth Brown, and I'm a principal geotechnical engineer at JLT Consultants. Abi: And I'm Abi Corbett, a project consultant at SME. So today's episode is a wild ride. We're talking about a shopping center redevelopment project that has everything: old fill, big box tenants, tight schedules, reused materials, a contractor with, let's call it creative quality control, and a phrase that should haunt every engineer's dream, "As needed." Liz: So if you've ever wondered how two words can cost a firm 50 grand and years of stress, buckle up, 'cause today we're diving into case history number 98. Abi: Okay, picture this. A national shopping center owner [00:01:00] wants to demolish 75% of a 35-year-old mall and rebuild it as a shiny new retail center. Big project, big tenants, big schedule pressure. Liz: And the site? Well, it's 60-plus acres of old fill. They're gonna have some new cuts, new fills, three retaining walls up to 25 feet tall. Two of those walls are gonna support, like, these big box buildings. So I mean, really, this, it's not medium risk. This is, you know, like, CEO gets involved type of risk. Abi: Right, and that's actually exactly what happened. The member firm CEO oversaw the proposal because the risks really were that high. Liz: And then the owner ignored the firm's contract and sent their own, which did not contain a limitation of [00:02:00] liability. So the CEO pushed back and eventually they negotiated a $1 million limitation if the firm also provided the CoMET services. Abi: And here's where some trouble is gonna start. The contract said CoMET services would be provided as needed. No one defined it, not the owner, not the construction manager, not the geotechnical firm. Liz: Oof. That phrase becomes the ghost that ends up haunting this entire project Abi: And it leads us to our first big lesson. A go, no-go analysis isn't enough. So they identified some risks pretty early. That's why they got the CEO involved. But once they said go, they didn't follow through with that same rigor. The risk management thing, it's a process, not just a checkbox.[00:03:00] Liz: Exactly. And if you know a project is high risk, you can't afford vague language. You need clarity and documentation and communication at every step. So I mean, that as needed really should have been further defined. Abi: Yes, 100% agree. Okay, so construction begins and the owner hires an excavation contractor known for being, quote, "bottom line focused." And by that, we mean one of their managers bragged about burying unsuitable materials when no one was watching Liz: Oh yeah. Everybody knows that kind of contractor, and I think if you've been in the industry for any amount of time, everyone knows who that contractor is, unfortunately. So I mean, that's the kind of thing that really makes geotechnical engineers, wake up at 3:00 AM in a cold sweat. Abi: Yeah. Definitely to say the [00:04:00] least on that one. And the member firm assigned a senior principal and an experienced field rep to oversee construction. But the owner didn't just give them a blank check, so the team had to constantly decide what they're gonna observe and what they just basically have to skip. Liz: Right. So I mean, I think a positive note here is that the firm recognized the risk, right? And so they made sure that they did have, a senior principal and that experienced field rep, right? They weren't putting the one-year-outta-school guy out of there, right? They made sure, "Hey, we're gonna get, some good quality people out on this site." And really here's where another lesson comes in, is that QA is not QC. So the CoMET firms provide quality assurance, not quality control. They're not the contractor's police force. But if the owner or contractor thinks that you're doing [00:05:00] QC, you're already in trouble Abi: Yeah, that's something I like to really get out in the open first thing in forefront with my projects is like very clearly say that QC is responsible for QC. I am just spot checking. Liz: Right Abi: And in this case, because no one defined as-needed, the field rep had to make judgment calls. He decided the cantilevered retaining wall, the one that's supporting landscaping, it, it was low priority. He skipped density testing and only did two spot checks. Liz: I get his field judgment, right? It was a lower priority item, less risk to, life and limb type issues there. But really this kind of leads to another one of our lessons is that spot checking elevates risk. Spot checking assumes that the contractor is honest and consistent, but this [00:06:00] contractor had a history of cutting corners. Abi: Yeah. And there's a kicker. Pulverized asphalt and clay look similar from a distance. So reusing materials is great, environmentally friendly, cost-effective, but it creates opportunities for confusion or maybe even cheating. Liz: Which kind of leads us to another lesson is that reused materials require heightened observation. There's so many different things that could happen or go wrong or, you know, blending of materials or things of that nature. So if the client declines that level of observation, right, that heightened observation, then really that needs to be documented, and to document it, I mean in writing, right? Like every single time. Abi: Yeah. Like high, high, high focus on it. But the [00:07:00] project finished, everyone celebrated, grand opening, smiles, break out the champagne. Liz: Oh, yeah. But then, dun, dun, dun, the wall moved. Abi: Right. A few years later, the property manager calls and quote, "One of the retaining walls is failing. Come figure it out." End quote. Liz: So a 100-foot stretch had deflected. The keyways between the segments had sheared, and really the initial suspicion was hydrostatic pressure from a clogged drain Abi: But when they drilled borings and installed groundwater monitoring wells, they found something much worse. Liz: Yeah, unfortunately there was clay in the backfill. So what they found was alternating layers of pulverized asphalt and clay, even though clay was explicitly [00:08:00] prohibited. Abi: Contractor cheated. And because the field rep wasn't, I really couldn't watch that wall very closely. No one caught it. Liz: Right. And so here's another lesson is the, the constructors may not implement adequate QC, like even the good ones. I mean, with schedule pressure, cost pressure, or just plain habit can lead to bad decisions. Abi: Yeah, especially if you're feeling like it's a status quo kind of job. So the owner does need the wall fixed before they wanna sell the property. They set a $300,000 budget, hired a contractor, and the member firm did CoMET for this repair. Liz: And based on those observations, the firm concluded that, hey, improper backfill was the primary cause of failure. Abi: So here comes the lawsuit. First, the [00:09:00] excavator and construction manager, and then the member firm. Liz: Well, and as usual, right, with the lawsuits, everyone's pointing fingers at everybody else, right? The construction manager said, "Not our fault." And the excavator said, "We did what the geotechnical engineer told us." They even claimed that the member firm had someone on site, quote, "At all times." Abi: Which is just absolutely false. Liz: Right. So the member firm argued, number one, "Hey, they can't be everywhere at once." Number two, "They weren't required to observe everything." Number three, "The owner knew the CoMET scope was limited." And number four, "The contractor was responsible for meeting specs regardless of observation." Abi: And here's a huge lesson. Effective documentation must describe what was [00:10:00] not observed. Silence implies oversight, and oversight implies responsibility. Liz: Right. So experts weighed in. One blamed clay, one said the distress was cosmetic, one blamed the wall design. Nobody agreed. Abi: Imagine that. Which, I mean, it brings us to just another lesson. Agreeable experts are always available. Some experts really will say anything for the right fee. Their testimony can get kind of muddy and maybe even prolong a dispute. Liz: Right. So in this case, the parties went to mediation, right? "Hey, let's get this settled out." And here's where another lesson hits hard is that litigation is not about truth, it's about persuasion. You need experienced construction claims attorneys who understand how to defend [00:11:00] technical professionals. Abi: Right. And the mediator's goal here wasn't to find who was right. It was to find a settlement everyone hated equally. So the excavator ended up paying $115,000. Our member firm paid 22,500, and the owner reduced its claim by $150,000. Liz: Whew. And the member firm spent about $50,000 total, including unbilled time Abi: Billed time is always such a big kicker Liz: It is Abi: All right, let's run back on all those lessons that we talked about throughout the case. Liz: All right, so lesson one is risk management doesn't stop at go/no go. If you identify a project as high risk, you need heightened communication, documentation, and clarity throughout the entire project. Abi: Big emphasis on [00:12:00] entire. Liz: Right. Abi: All right, lesson two, QA is not QC. If an owner or a contractor thinks in any way you're doing QC, you are in trouble. We need to educate these people early and often that QA is not QC. Liz: Right. And really by doing that, you're really helping to elevate the geoprofession as a whole. Like educating is to, you know, the proper way there. So lesson three, define your terms, especially quote, "As needed." So ambiguity is a liability magnet. If you don't define it, a lawyer will, and more than likely it won't be in your favor. Abi: Ew. And look, lesson number four, no good deed goes unpunished. If you're trying to save a a client money by reducing your observation, [00:13:00] it can backfire unless a client is explicitly approving it in writing. Liz: Right. Writing is key. You want everything in writing. So lesson five, spot checking increases risk. If you're not there full-time, you must document what you did not see. Abi: Lesson number six: reuse materials require vigilance. Pulverized asphalt looks like soil. Clay looks like soil. Cheating is just kind of easy in this case. Liz: Agreed. Lesson seven: contractors may not implement adequate QC. Even honest contractors make mistakes. Some make choices. Abi: Human element. Liz: Great Abi: Lesson eight: documentation must include what was not observed. Daily reports need to reflect reality, not just [00:14:00] optimism. Liz: And lesson nine, communication is everything. Weekly check-ins aren't enough on a complex project. Abi: One of my favorite lessons, number 10, litigation is brutal. Opposing counsel is going to twist facts and you're going to need strong legal guidance Liz: And building that relationship early with your legal counsel is a great idea. So lesson 11, experts can be bought. Prepare for testimony that contradicts reality Abi: Lesson 12: claims are business decisions. A lot of times settling is just gonna be cheaper rather than fighting the fight and winning Liz: Right. It's all about risk management there. So lesson 13, mediation works even if it feels unfair. It's about closure, not justice. As the [00:15:00] CEO said, it can feel like, quote, "legal thievery," but it's cheaper than trial Abi: I like the way that he put that. Liz: Right Abi: So that's about it for case history number 98, a perfect storm of unclear scope, reused materials, contractor shortcuts, and assumptions that went unspoken. Liz: If you take nothing else away, let it be this. Define your scope in writing every time. Abi: Thanks for joining us. Share this episode with anyone who's had to explain the difference between QA and QC. Liz: And 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. If this episode resonated with you or if you have a potential case history, we want to hear your story. Email us at [00:16:00] info@geoprofessional.org or comment on our LinkedIn post.