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.

In general, the project contractor and all of its subcontractors are responsible for site safety; however, it is not uncommon for a design firm to be sued if someone is injured or killed at a construction site. Unfortunately, there is very little a design firm can do to avoid being sued irrespective of what is written in the various contract documents. As a consequence, in these situations, design firms may be forced to defend themselves against expensive lawsuits with only the outcome in question.

In the previous Information Alert (Part 2) in this series a clear distinction was made between design firms hired by project owners to design the finished facility as compared to design firms hired by project contractors to design the temporary structures necessary to construct that facility.

As defined by OSHA, design firms hired by project contractors for this purpose are officially referred to as Qualified Professionals (the designation to be used throughout this Information Alert).

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?

Although the primary objective of the contract document for construction is to make sure that the project owner obtains the finished facility required for long-term performance, it also must set the stage for design of the temporary structures needed to construct that facility. For instance, all of the project specifications and drawings describing the finished facility would be described as prescriptive; those referring to the temporary structures would be referred to as performance specifications or drawings.

Thus, the project owner – through its contract with the project contractor – is telling the contractor how it needs to perform during construction without assuming direct responsibility for accomplishing that performance. In essence, and in accordance with OSHA regulations, the project contractor becomes 100% responsible for providing a safe site during construction and for performing final design of all the temporary structures required to accomplish that goal. A project contractor will hire and/or employ Qualified Professionals for that specific purpose.

Consequently, it is those Qualified Professionals who become responsible for the structural aspects of site safety – and not the design firm hired by the project owner for the design of the finished facility.

As a result, Qualified Professionals working for project contractors must be especially diligent when agreeing to terms and conditions under which they will provide professional services. Often, a project contractor will attempt to obtain those services based on the same type of contract that it uses for all other “subcontractors”; however, that form of agreement is completely inappropriate for professional services. In general, the contractual impetus for Qualified Professionals working for project contractors must come from the Qualified Professional in the form of an Agreement for Professional Services rather than as a “subcontractor.” 

Even under these circumstances, however, Qualified Professionals hired by the project contractor must make a clear distinction between their responsibility as a “Qualified Professional” as compared to the project contractor’s “Competent Person,” who is still responsible for the safety- related issues associated with the means, methods, techniques, sequences and procedures for building those structures.

For instance, assume that a temporary wall, slope or lining shows signs of distress during construction that could result in an unsafe situation. As soon as that distress is observed the question becomes: What is the reason for that distress and what must be done in order to resolve that problem as quickly as possible? Upon investigation, it might be concluded that the problem was caused by a design error, by faulty installation procedures, or even as a result of a differing site condition. Each of these factors would require a different solution – either by Qualified Professionals working for the project contractor or by the design firm working for the project owner.

If someone is injured as a result of that “distress,” then all of the factors (discussed earlier in this series) relating to the laws, regulations, codes, and legal precedents for site safety would come into play.

The bottom line for a Qualified Professional hired by a project contractor is two-fold:

  1. Qualified Professionals hired by a project contractor must make it crystal clear in their Agreement with the project contractor that their personnel are not authorized to fulfill the role of the project contractor’s “Competent Person” during construction. Once a submittal for a temporary structure is “accepted” by the project owner it becomes part of the contract document and must be constructed with the same care and attention to detail as the finished
  1. Qualified Professionals that provide design services for a project contractor should also make allowance in their Agreement with the project contractor for their personnel to visit the site on a regular basis to ensure work on their structures is being accomplished properly. It is not unusual for workers in the field to be inexperienced with construction practices for certain types of temporary structures, so it is important for the Qualified Professional to develop a cooperative working relationship with the project contractor’s Competent Person present at the

Qualified Professionals who perform design services for the temporary structures are much closer to the issue of site safety compared to design professionals who provide design services for the finished facility. Thus, Qualified Professionals working for a project contractor must have relevant input into the means and methods of construction for their structures in order to fully protect all workers and guests at the site and all adjacent structures and utilities.

Of course, it is difficult to predict what different project contractors might require from their Qualified Professionals who provide design services for the temporary structures. Many project contractors have long-standing relationships with Qualified Professionals who perform these types of services on a regular basis, but that protective shield would not extend to workers injured as a result of construction activities. As a result, Qualified Professionals working for project contractors should still have protective clauses in their Agreements similar to those provided to design firms working for the project owner.

In fact, once a temporary structure is designed by a Qualified Professional, it is the Competent Person’s responsibility to make certain that the temporary structure is constructed with the same attention to detail and safety as any other structure at the site. Perhaps, the biggest difference between design firms working for a project owner (as compared to working for a project contractor) is the degree of coordination required between the project contractor’s Qualified Professional and its Competent Person.

If a temporary structure at a site fails and results in injuries, deaths, or property damage, there is little doubt that the project contractor’s Qualified Person will be involved in the resolution of the losses and damages associated with that failure; which could amount to a significant amount of money. Thus, it is in the interest of both the project contractor and the Qualified Professional to make certain that the temporary structures are designed

and constructed in a proper manner. Although design professionals retained directly by project contractors may have additional responsibility for site safety, they should not overlook inserting legitimate and appropriate contractual safeguards associated with those responsibilities.

Two other site-related issues that can have an impact on a Qualified Professional’s responsibility for site safety are: differing site conditions and the inclusion of temporary structures into the finished facility.

Differing Site Conditions

Essentially, every time a differing site condition is discovered at a project site it occurs during construction of the temporary structures. Consequently, this discovery almost always has an impact on how the temporary structures are designed and built, and may have a related impact on safety precautions associated with that construction.

These impacts also have the potential for significant cost and scheduling consequences if the differing site condition involves highly unstable ground, hazardous materials, and/or unanticipated third-party impacts. If a differing site condition is alleged during construction, then the design firm working for the project owner will become involved from a contractual perspective; however, and despite that fact, the design firm working for the project owner must do that which is necessary to remain divorced from decisions relating to the means and methods of construction and site safety.

Temporary Structures Versus the Finished Facility

Sometimes, it is intended for so-called “temporary structures” to become part of the finished facility. For instance, all of the slurry walls for Boston’s Big Dig were incorporated into the final structure. It is also possible to use rock bolts and shotcrete both to support the ground during construction and as

part of the final tunnel lining. In these cases, the project contractor has a right to assume that if it constructs those structures as designed by the project owner’s design firm, then they will also be safe for its workers since they were intended to be safe for the finished facility. Thus, design firms working for the project owners may end up fulfilling the role of the project contractor’s Qualified Professional.

Even in these situations, however, the design firm’s design professional must be vigilant not to assume responsibility for becoming the project contractor’s “Competent Person.” Again, careful attention to detail about how the words and clauses used in the design firm’s various Agreements and Contracts is required.