by | Jan 5, 2021 | architects and engineers, contractors and construction, Risk Management

Although design professionals and engineers are generally insulated from responsibilities for site safety, these issues can become murky if design firm personnel are to be on site and owners insert onerous clauses on safety in their agreements. This Information Alert, the second in the Ames & Gough five-part series on site safety, discusses issues that can arise for design firms hired by project owners. We also outline an action plan for design firms to avoid and manage potential exposures.

Project owners often retain the services of an outside design firm to assist with design of the finished facility. In addition to having performed this work in accordance with the standard of care for that particular facility, it is assumed (for the purpose of this Information Alert) that the finished facility will be safe for whomever has access to it after construction.

In fact, the ASCE Code of Ethics, Canon No. 1 states that each design professional “shall hold paramount the safety, health and welfare of the public in the performance of their professional duties.” However and significantly, this ASCE Canon does not apply to any responsibility a design professional would have for persons present at a site during construction.

Understanding OSHA’s Site-Safety Requirements

As established by OSHA, the safety, health and welfare of all persons working at a site and all persons who “visit” that site during construction is the sole responsibility of the Host Employer (or Controlling Employer) unless contractual stipulations indicate otherwise.

About the Ames & Gough Site- Safety Series

Ames & Gough commissioned noted engineering/construction authority Gary Brierley, Ph.D., to prepare a white paper to help design firms understand and navigate site-related safety issues. For your convenience, we are presenting the white paper as a five-part series. This Information Alert is the first part of the series, which will include the following:

Part 1: Introduction to Site Safety

Part 2: Site Safety – An Action Plan for Design Firms Hired by Project Owners

Part 3: Site Safety – An Action Plan for Design Firms Hired by Project Contractors

Part 4: Site Safety – An Action Plan for Design Firms That Provide Construction Management Services

Part 5: What Happens if an Accident Does Occur and Your Firm is Named in a Claim?

The responsibility of the Host Employer also extends to the design of all temporary structures needed to construct the finished facility. For instance, all temporary slopes, walls, trenches, and linings, must be designed by Qualified Persons employed or retained by the Project Contractor in order to make certain all temporary structures are safe for site workers and visitors, and stable with respect to all adjacent, existing structures and utilities.

It is important to note, however, that design professionals retained by the project owner are not completely divorced from design of the temporary structures as the contract document, itself (as prepared by those design professionals), sets the stage for that design.

For instance, all of the subsurface information accumulated for design of the finished facility is also made available in the construction contract for design of the temporary structures. In addition, it is common for the contract document for construction to include specifications and drawings providing minimum design criteria and/or minimum design recommendations for the temporary structures. Those drawings and specifications should, however, include clauses such as those shown below which establish contractual responsibility for final design of temporary structures and for site safety:

Submittals (Submit to the design firm at least four weeks prior to the start of each activity):

 Shop drawings and calculations indicating the arrangement of supports for the temporary structures and the details of the construction sequence to be used to install those structures. Calculations shall include values for the actual stresses and deformations of the structural elements and for the maximum tolerable values.

 The above shop drawings and calculations shall be prepared, stamped, and signed by a Qualified Professional registered in the State of      in accordance with OSHA regulations to perform this type of professional service.

 However, the review and acceptance of this submittal by the Design Firm shall not relieve

the Project Contractor from its sole responsibility for the means, methods, techniques, sequences and procedures of construction and for the safety precautions and programs incident thereto.

Site Safety

 The means, methods, techniques, sequences and procedures of construction shall be employed by the Project Contractor in a manner so as to ensure site safety for all workers, guests, adjacent third parties, and the public at all times. All work shall also conform to all of the requirements of all Federal, State, and Local laws and regulations relating to site safety.

 Designate a Safety Officer who shall prepare and administer a safety program, a code of safe practices, and an emergency plan, and provide the Design Firm with a copy of those documents prior to the start of construction.

 Designate a Competent Person in accordance with OSHA regulations who is fully capable by training and experience for recognizing potentially unsafe conditions and who is authorized to take appropriate corrective action. The Competent Person shall also hold regular safety meetings and shall provide safety training to all employees and guests who have access to the site.

 Whenever a condition is encountered that can endanger site safety and/or adjacent structures and utilities, the Project Contractor shall be prepared to work 24 hours per day until that condition is mitigated.

Hence, and as described above, design professionals retained by the project owner help to establish design criteria for the temporary structures without becoming responsible for the actual, final design of those structures.

For instance, assume that a 40-foot-diameter shaft must be constructed to a depth of 120 feet through a soil profile consisting of 20 feet of soft clay, 15 feet of sand, and 30 feet of glacial till overlying weathered rock and rock with a water table located 10 feet below ground surface.

If you asked five different project contractors how they intended to excavate and support this shaft prior to bid you might receive at least five different proposals varying from sinking a caisson, freezing, dewatering, or grouting portions of the profile, driving sheet piles into the glacial till, or other proposals.

Thus, the project owner’s design firm will not be able to know in advance which of these methods might be used and/or how to perform the subsurface investigation or to provide the design criteria appropriate for each method.

Only after one of the bidders is chosen and the project contractor has a chance to discuss the various construction options with its Qualified Person can a decision be made and the design finalized. If during that process it is believed that additional subsurface investigations or design criteria are required to finalize that design, then it becomes necessary for the project contractor’s Qualified Person to make that call and obtain the information necessary to finalize the design.

The above approach for final design of the temporary structures is not a difficult concept to visualize or implement; nonetheless, however, the project owner’s agreements and contracts must make the division of design responsibilities and site safety absolutely clear.

Following receipt of the project contractor’s construction submittal, the project owner’s design firm will review it, noting whether the shaft is the correct size and location for construction of the finished facility and that it was designed in accordance with relevant project specifications.

The design firm will then accept it as an official part of the contract document, meaning that the project contractor is subsequently duty bound to accomplish all of the tasks as presented in the submittal.

When the project contractor’s submittal is signed by the project owner’s design firm and returned to the project contractor, it is essential for it to contain the following notation with respect to job site safety:

Insofar as job site safety is concerned nothing associated with the Design Firm’s review and acceptance of this shop drawing shall be construed to relieve the Project Contractor of its sole responsibility for job site safety with respect to all of its employees, to all guests visiting the site, and to all existing third parties. At no time and under no circumstance shall any guest at the site become responsible for directing the work or for advising about safety procedures. Hence, the Competent Person as defined by OSHA regulations and as employed by the Project Contractor shall be responsible for implementing all of the safety procedures relating to construction of the temporary structures as designed by the Project Contractor’s Qualified Person who signed and sealed this shop drawing. The Design Firm’s review and acceptance of this shop drawing is intended only to indicate the Project Contractor’s fulfillment of its contractual obligations relating to design intent for the finished facility.

The bottom line: Design firms retained by a project owner are primarily responsible for design of the finished facility and for setting the stage for design of the temporary structures. Meanwhile, the safety program implemented at the site is completely under the control of the Competent Person employed by the project contractor.

Individuals visiting the site for any reason during construction do so as guests of the project contractor. As a result, they must agree to abide by all of the requirements of the project contractor’s safety program while on site.

At no time, however, and under no circumstance, should any of those guests be expected to assume responsibility for implementing any aspect of the project contractor’s safety program unless directed to do so by contractual stipulation and/or because of inappropriate actions taken by those guests while at the site.