Liability of Design-Builders for Design, Construction, and Acquisition Claims (2015) / Chapter Skim
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Pages 87-99
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From page 87... ...
87 dangerous conditions of public property.406 The Act carves out "design liability" -- which means that the public agency retains its sovereign immunity -- if the "plan or design" has been approved in advance of the construction or improvement by the legislative body of the public entity or some other body or employee exercising discretionary authority to give such approval, or such plan or design is prepared in conformity with standards previously so approved, if there is any evidence that a reasonable public employee could have adopted the plan or design or standards therefor, or a reasonable legislative body or other body or public employee could have approved the plan or design or standards therefor.407 This is an uncommon concept and means that, in California, public agencies are likely to want to review and approve "released for construction" design documents.
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From page 88... ...
88 components," including certain ramps and separated pedestrian and bicycle facilities on the structures. The proposals were to include renderings of the bridge, representative conceptual drawings of the superstructures and substructures of the bridge and approaches, types of materials, and specific bid sheets and other forms.
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89 result, PBC argued that PB knew that certain project requirements -- such as seismic, wind, geotechnical, and ship impact issues -- were significant and carried a higher order of importance than on an ordinary project. PBC alleged that PB did not examine areas of the design that would have been critical to these areas, including the vertical component of seismic reactions, design of the expansion joints for seismic movement, and site-specific wind loadings.
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From page 90... ...
90 critical information with PB and overtly excluded its designer from providing input on final estimating, risk evaluation, or contingency setting. It found that "such exclusion lies at the core of this dispute." The panel noted that PBC's rationale for its actions was that PB was a subconsultant and not a joint venturer sharing the financial risk of the fixed-price design–build contract.
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From page 91... ...
91 Design Subcontract, as well as the testimony of the parties, which made it clear that the parties intended and understood that the information provided prior to the award was for the purpose of bidding to SCDOT and not for construction: "Moreover, there was no doubt that the information provided prior to the award of the Design Build Contract might be subject to refinement and change during the development of the final design."418 Therefore, the panel found no basis for PBC's claim of breach of implied warranty with respect to pre-bid design information.
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92 into the Design Subcontract, the panel was unwilling to consider this as a proper defense. The Award noted, "It is also clear that when the regrettable deterioration of the relationship between PBC and PB occurred, both parties ignored this part of their commitment in the claims, counterclaims and backcharges which they have presented in this arbitration."424 Moreover, because there was no evidence of any discussion or agreement as to a dollar threshold for claims considered to be in the "nickel–dime" category, the panel was unwilling to "guess as to what might be considered to be a ‘nickel–dime' claim."425 7.
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93 Finally, it should be noted that although the panel did not address this directly, triers of fact are influenced by the financial position of the plaintiff. Although the Award did not make this clear, PB suggested that PBC apparently made money on the project.
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94 retained a design–build subcontractor for the construction of carport structures with solar panels. The subcontractor used incorrect wind load data and provided this data to its two structural engineers.
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95 potentially reactive and raising the possibility of ASR problems. The second major claim involved mass concrete thermal issues and the potential for delayed ettringite formation (DEF)
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96 procurement, contracting, and execution practices influencing project outcomes. The following three case studies focus on how agencies used creative techniques relative to the design process to accomplish their budgetary and schedule-related goals.
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97 completed in "record time."439 The Request for Quotations required a much-abbreviated Statement of Qualifications (SOQ) process…designed to balance the state's need to have key information about the proposing teams and the desire to reduce the effort required by the teams to enter the proposing process…to not do anything to discourage potential proposers from entering the competition for the project or to distract them from the more important efforts of putting their proposal together.440 The centerpiece of the procurement process was the MnDOT Preapproved Elements (PAE)
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98 any additional right-of-way. Flatiron-Manson's proposal required work outside the ROW defined in the RFP for the purpose of lowering Second Street.
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From page 99... ...
99 designs, as it preferred having more design reviews. However, with the number of design reviews already required by contract, it was challenging to manage the number of submittals and have CDOT respond within 2 weeks.454 One thing that helped this process was getting commitments up front from internal CDOT bridge personnel for the project and the project requirements.455 Another design administration difficulty involved the understanding by CDOT bridge section personnel as to the difference between a design requirement and a design preference.
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