Contractor legal rights and obligations for bridge design....
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Bridges:  Engineers Fail to Take Soil Borings as Required

What can bridge contractors count on:  death, taxes and under-designed projects.  Unfortunately for contractors, they cannot absorb the costs for such projects or have any chance of submitting the low bid if they include a contingency.  So what is a contractor to do?  Contractors should start by learning about the legal rights and obligations for bridge design
Let's focus on one important aspect of bridge design:  substructures.  Since the substructures are, by definition, below grade, it necessarily follows that the engineer should understand the subgrade conditions to properly design the substructures.  Unfortunately, engineers routinely fail to properly evaluate the subgrade conditions.  As a consequence, the substructures are under-designed and contractors pay for the related extra costs. 
Contractors should not pay for the costs of under-designed substructures.  In most states throughout the country, engineers are required to conduct a soil boring at each substructure.  This requirement helps to ensure that the engineer has knowledge of the condition of the soils where each substructure will be located when they are designing the project.  To the extent that such construction requires sheet piling as well, the engineer must determine the suitability of the soils for both temporary and permanent piling operations.
Unfortunately, it seems that engineers either do not know they are required to take one boring at each substructure or simply ignore this standard.  The net effect is that the contractor can experience numerous problems and incur significant extra cost, none of which should be the contractor's responsibility. 
If the engineer fails to take borings as required at each substructure, the contractor may encounter unanticipated  obstacles such as boulders, old concrete debris and timbers which can prevent accurate sheet piling as well as abutment piling.  Notably, this may occur without any above-grade notice of the problem during placement.  Alternatively, rather than encountering obstacles, the problem may be not encountering the foundation layer until much deeper than the plans contemplate.
In summary, the engineer has the legal obligation to properly design the bridge.  This includes the substructures.  If the engineer has not taken a boring at each substructure, the engineer has likely failed to properly design the project.  Take the time to consult with someone knowledgeable about the design requirements before agreeing to pay the related extra costs.
This is just a brief example of the many contractual requirements that contractors need to understand, whether or not it is explicitly stated in the contract documents. When you educate yourself about these requirements, you will be taking a step towards minimizing risk and maximizing profits on every project you bid. 

Thomas R. Olson*
Olson Construction Law, P.C.
1898 Livingston Avenue
West Saint Paul, MN  55118
Tel. (651) 298-9884
Fax (651) 298-0056
* Licensed to Practice Law in: The State of Minnesota (#169079); The State of South Dakota (#3898); The State of North Dakota (#06505); The State of Nebraska (#23887); and The State of Iowa (#AT0010013).
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