Topic: Education Law
Sometimes it begins with a crack. A seam rips. A suspended ceiling stretches and twists. Lightning shaped cracks form on walls and floors that were once pristine. Teachers complain. Parents ask you whether or not this building that you constructed only a few years ago is safe for their children.
This is a problem that occurs all too often, and the culprit is frequently just inches beneath your feet. The foundation, or the soils beneath the foundation, are frequently found to be the cause of the problem. When something like this happens to your school, it is important to know
the players that might have been involved with the design and construction of the foundation to engage them in the process of identifying the problem and then, hopefully, to solve the problem. Let’s start from the ground up.
The Geotechnical Engineer
Before the Architect can design a structure for a building, he or she must possess a geotechnical engineering report of some kind. These reports are typically produced by a
geotechnical engineering firm. Normally, the owner will seek out the services of such a firm independently of the architect. The geotechnical engineer’s job is to analyze the site of the construction by testing and characterizing the soils at the location, and using that data to support its recommendations to the designer’s structural engineer for incorporation into the final design
of the project. The geotechnical engineer recommends different foundation types based on its findings. Thus, hiring a geotechnical engineering firm to generate a report is a necessary step in the development of the design. The report serves as the foundation of the foundation.
Frequently, the geotechnical engineer will also serve as a materials testing firm. The Government Code specifies that government entities must contract for materials testing
services independently of the contractor, construction manager-at-risk, or design-build firm. It also states that procurement of the testing firm must be made in accordance with Texas Government Code § 2254.004, which is otherwise known as the Professional Service Procurement Act. To state it another way, to lawfully hire a testing firm, a government entity must first consider the qualifications of the firm. Only after the governmental entity has determined that the firm is the most qualified based on its demonstrated competence and qualifications, may it consider pricing information.
With this understanding of the function of a geotechnical engineer in the design process, errors by the geotechnical engineer can lead to foundation designs that are not appropriate for the site at which the project is to be constructed. It is also possible that an investigation could reveal that a structural engineer failed to follow the recommendations of the geotechnical engineer. Either way, you will need someone to answer that question at an early stage. If no
one with expertise is there to address this fundamental question, it seems very unlikely that an owner’s efforts at stabilizing the situation will ever be successful.
When a school district builds a new school on a new piece of property, it should know that the design of the school will require some form of civil engineering. Utilities will
need to be connected to existing utilities. Sometimes the span of those utilities is quite lengthy, depending on where the property is in relation to the existing sewer, water, and gas lines.
An owner will also depend on a civil engineer to establish and design the drainage plan for the project. Drainage can impact every component of the building, and so it is
critical that an owner either hire a civil engineer itself or contract with the architect to provide those services as a part of their scope of work. Just remember that standard contracts leave this item open, and so a conscious decision must be made to bring a civil engineer to the team.
Civil engineering issues are commonly identified by design professionals and contractors as the reason for building movements. The common complaint is that there is inadequate drainage around the building and that the condition is causing excess moisture to produce swelling in the soils around and underneath the building. If the building has begun to exhibit signs of movement, then the opinion of the civil engineer could be instrumental in identifying and remedying (or at least partially remedying) the problem.
Generally, people tend to think of the architect as the quarterback of the project. In reality, an architect is more of a head coach. The architect designs the plays that the contractor executes. An architect’s responsibilities often begin well in advance of a project’s design phase. Sometimes, they are called upon to provide some of the fundamental information necessary to identifying a need for the construction or identifying a budget for certain work. With respect
to a foundation, however, the architect is typically the professional responsible for hiring the structural engineer.
When building distress begins to appear, a call to the architect is a must. Generally speaking, the Architect and his or her design team will have the greatest amount of knowledge about the interplay between the geotechnical recommendations, the structural design, and the execution of the work. The architect’s input is therefore critical. What is even more critical however, is that the architect coordinate the work of his or her consultants with the work of the owner’s consultants (i.e., the geotechnical engineer and the civil engineer) to ensure that the design will be suitably designed for its intended purpose.
It is the contractor’s job to execute the design provided by the architect or engineer. When the owner hires a general contractor, the focus is on the general contractor alone to
comply with the plans and specifications. A more challenging arrangement exists for an owner where the owner elects to be its own general contractor. In these types of arrangements, each subcontractor should, in theory, be required to comply with the plans and specifications just as a general contractor would. This should be the fundamental requirement of any contractor’s contract, regardless of whether the owner seeks a general contractor or takes on the responsibility of serving as its own general contractor.
Nonetheless, it has occurred on occasion that the various subcontractors responsible for constructing the foundation become uncoordinated and sometimes inadequately supervised. In these cases, a divergence from the plans and specifications is more apt to occur. The construction of a foundation involves the work of numerous subcontractors and their coordination,
and adherence to the plans and specifications is crucial if an owner hopes to obtain a stable and reliable foundation.
If you used a general contractor or construction manager-at-risk to construct the foundation, your task is relatively simple. Contact them for assistance. If, on the other hand, you acted, in essence, as the general contractor, your task is somewhat more complicated. Some of the trades you will want to contact are the earthwork contractor, the concrete contractor, and the plumbing contractor. It is also possible that you may need to contact the companies that supplied the steel reinforcement, cement, and soils that were used to construct the building pad, if any. Additionally, you should look to see whether there was a contractor that was responsible for grading the area around the building. Any one of these contractors may later be required to take action to remedy the problem. At the end of the day, it is better to contact them all when the problem first arises to begin the evaluation and repair process.
When the cracks begin to appear, it is important to take positive steps to let these and sometimes other members of your design and construction team know what is occurring. It is possible that smaller steps taken at an early stage can prevent more profound damages from occurring. While it is also a good idea to make sure to contact your attorney to help you to understand your rights and obligations and the rights and obligations (and sometimes the limits of the rights and obligations) of the members of your design and construction team, it is important to make your goal the safe and efficient repair of your distressed facility.