NSPE's Gateway to Private Practice November 2012 
 

Networking is No Longer Limited to Your Outlook Contact List
Dawn Edgell, P.E., PEPP Chair 2012-13

The general term social media is used to include all types of online Web sites that include not just LinkedIn but the more social sites of Facebook and Twitter. How you choose to use these media outlets depends on what you want to get out of each. While professional networking is still as important as it has always been, now in the 21st century, how you can network has changed.  

 
During the recent events of my own job search that I discussed last month, social media played a very central part of that experience. With the sudden job change, I realized how dependent I was upon my Outlook contact list that I used every day for work. But in order for me to search for a new job and use my professional network, I still needed to find a way to reach out. This is where social media played a very large role. My network of contacts wasn’t just in Outlook I realized; I had an even larger network through LinkedIn. This network included not just those people I dealt with on a weekly basis, but also included business associates, recruiters, business owners—quite the variety of people, which, when you are job hunting, is very helpful. Through this Web site I was able to also reach out to friends and colleagues even when I thought I did not have their contact information. This particular network on LinkedIn also included links and subscriptions to many discussion boards and groups where I could also search for specific jobs versus the somewhat random searches on job boards such as Monster and CareerBuilder.


I recently read a blog regarding the professional use of social media. It included the following key items that are very important for keeping a professional online persona.

  1. Don’t post something just to post it;
  2. If you’re using social media to network, stay professional;
  3. Use the tools to their full potential;
  4. Don’t spam or post too frequently;
  5. Don’t just post the same thing across different platforms;
  6. Keep your content fresh; and
  7. Follow up with connections.


These are very simple steps that can lead to huge dividends in your career. With the growth of social media, it’s already hard to escape the use of these pages, and as the new generations of engineers continue to enter the workforce, these will continue to develop. The PEPP-YEAC group has a LinkedIn page that they continue to update with discussions and news articles. I encourage you to see what they have used their page for, as well as the main NSPE LinkedIn and Facebook pages.

 

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Professional Liability/Risk Management: Protecting Your Firm From the Negligence of Others

When a design professional agrees to provide services for a client, that design professional assumes the same level of responsibility for those services whether the services are performed directly by the design professional or by a consultant. Often, design professionals have to rely on the services of consultants that are not a part of the design team. Firms need to understand their legal responsibilities when they are part of a professional services team and their responsibilities for others. Design professionals can have legal responsibility for the actions of others in much the same way that they have responsibility for the actions of their employees. This is called vicarious liability. The legal concept of vicarious liability is the imposition of liability on one party, in this case the prime design professional, for the conduct of another party, the consultant, based solely on the relationship between the two.

Establishing Relationships and Determining the Risks

Teaming relationships on projects can be divided into three categories: joint ventures, separate independent contractors, and prime-consultant arrangements. If firms provide professional services to a client together, they are in essence a joint venture. It does not matter what term the firms use to describe their teaming relationship. If they both sign a contract or indicate to a client that they both have responsibility, they are usually jointly and severally liable for the services provided by either party. In other instances, independent contractors provide some services on a project. Often, they are hired directly by the client. Or they provide services to the design team that are clearly separate from the services for which the client is paying the design team. In general, when a party hires an independent contractor, that contractor has control over its own activities. The client, or prime, can instruct the independent contractor on what to do but not how to do it. A prime is generally not liable for the tort claims of its independent contractors.

For various reasons, a client may want specific consultants as part of the professional service team. A prudent design professional will either negotiate the use of consultants for whom the prime design professional is willing to take responsibility, or require an arrangement for the consultants to contract directly with the client so that the prime design professional is not vicariously liable for their actions. The latter arrangement may necessitate greater coordination of the independent services of the client-selected consultants. The prime design professional’s coordination of the documentation requires careful attention, and this service should be appropriately compensated. Because the prime design professional does not have authority over the independent consultants’ services, the prime design professional should not be held responsible for their accuracy. In an arrangement where the client is contracting directly with individual consultants, each of them should be acknowledged as being able to rely on the technical sufficiency and timely delivery of documents and services furnished by the others.

Managing the Risk of Others

A prime-consultant arrangement usually means that only the prime is contractually liable to the client. This privity of contract establishes broad rights for the client against the prime. The client’s rights against consultants are usually limited. At times, they extend no farther than the rights of any other member of society. When a prime firm is registered in one profession, it must subcontract out a portion of the design to another professional in a different specialty. While the prime cannot instruct the consultant on how to design, it may still be held responsible for a loss relating solely to the negligence of the consultant. In the case of having separate contracts for different design and engineering disciplines, the client must have a carefully developed multiple prime agreement. In such cases, the independent design professionals or service providers should be required to coordinate their instruments of service through a designated prime consultant. The scope of review by the coordinating entity should be carefully described.

Moreover, it would be appropriate for the client to agree to indemnify the prime design professional for any costs resulting from the negligence of the independent consultants. In addition, it may be prudent to require the client to indemnify and hold the individual consultants harmless from claims, costs, losses, or damages to them resulting from the negligence of the client’s other consultants—since they have no independent capability to evaluate the accuracy of the services rendered by the other consultants or the responsibility for such services.

Courts generally presume vicarious liability for a design professional arising out of the negligence of an independent contractor employed as a design consultant. This is due to an overriding responsibility of the prime to protect the health and safety of the public. This presumption is based primarily on traditional contract principles and public policy arguments.

Contracts for professional services create a nondelegable duty on the part of the prime to provide plans that conform to applicable codes, standards, and regulations. Therefore, even if the prime has no authority under state registration laws to control the design activities of a consultant, the prime still has vicarious liability for the consultant’s professional services.

A consultant, however, may escape liability if the client requires the prime to use a specific consultant. Even if there is no separate direct relationship between the client and consultant, the consultant may be determined to be an independent contractor and solely responsible for its own actions.

Managing Exposures

With rare exceptions, a prime design professional is responsible for the negligence of those providing services on behalf of the prime. Therefore, care should be taken in all cases to select interprofessional consultants who are qualified and capable of providing their services. Even if the consultant is selected by the client or could be considered a truly independent contractor, insurance protection should exist.

Some consultants may want to have the prime assume all, or a major share, of the risk that they will perform their services adequately. Consultants who attempt to shift risk to the prime by unreasonably limiting their liability to the prime or a third party through their contract with the prime design professional should be carefully evaluated.

Limiting the consultant’s risk simply increases the likelihood that the prime will be held liable beyond its share of any harm.

© 2012, Victor O. Schinnerer & Co. Inc. Statements concerning legal matters should be understood to be general observations based solely on our experience as risk consultants and may not be relied upon as legal advice, which we are not authorized to provide. All such matters should be reviewed with a qualified advisor. Victor O. Schinnerer & Co. Inc. is managing underwriter for the Schinnerer and CNA Professional Liability Insurance Program, commended by NSPE/PEPP since 1957.
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EJCDC Construction Contract Documents: Key Clauses and New Approaches

As NSPE's fall webinar season wraps up, don't miss out on our live online education opportunities. Each session is sold per connection, allowing your colleagues to join you. These sessions offer outstanding value. Don't hesitate to earn your PDHs, sign up for one of our online sessions now!


EJCDC Construction Contract Documents: Key Clauses and New Approaches

December 5, 2012, 12:30–1:30 p.m. (E.S.T.), 1 PDH

The webinar will focus on several key subjects in EJCDC C-700, Standard General Conditions for the Construction Contract, with an emphasis on previewing provisions that are being revised in the new edition of C-700 to be published in early 2013. Topics include baseline geotechnical conditions; differing site conditions; hazardous environmental conditions; contract changes; project-level resolution of disputes and claims; builder’s risk and liability insurance requirements; electronic transmittals of contract information; and substitutions and “or-equals.”

Ethics and Risk Management: When “Trust Me” Isn’t Enough

December 13, 2012, 12:30–1:30 p.m. (E.S.T.), 1 PDH

In recent news, we’ve read about scandals, cover-ups, and ethical breaches. Ethical challenges and business risk are everywhere and if you are not careful, it only takes one major occurrence to put you out of business.

Integrity and risk management are business issues and your decisions and actions will determine your long-term financial success. Learn about the different types of enterprise risk and how to plan accordingly.

  • How to build trust using the Integrity Chain;
  • Determine the potential business and project risks that exist;
  • Implement proven project management methods for mitigating project risk; and
  • Understand the role of risk management in strategic planning.

These are just some of the courses NSPE has to offer. For full course listings, visit our Web site. [ return to top ]


Significant Legal and Legislative Activities

The following is a summary of recent legal/legislative activities of interest to the Engineers Joint Contract Documents Committee collected from information provided by EJCDC member organizations and other source material. For background material on each issue, please contact Art Schwartz, NSPE Deputy Executive Director & General Counsel (aschwartz@nspe.org).

STATE LEGISLATIVE/REGULATORY MATTERS
Missouri Design Professionals Push for Peer-Review Bill
Ohio PEs Oppose Bill on Criminal Offenses
Washington Continuing Education Bill Fails to Move
Washington A/Es Get 'Duty to Defend' Relief

FEDERAL LEGISLATIVE/REGULATORY MATTERS
Digital Signatures and Seals Essential to Industry Innovation, Report Says
NRC Report Calls for 'Culture of Safety' In Offshore Drilling
PE Named First Woman Commander of NAVFAC

COURT DECISIONS

Amyriad Manufacturing & Distributing Industries v. Budd Engineering
In Re: Individual 35W Bridge Litigation 

For details on these matters click here

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Steel Products Amendment Passes in Pennsylvania

Legislation designed to make it easier for contractors to comply with the Steel Products Procurement Act passed both the House and Senate and was signed into law by Governor Corbett on October 24th. The bill states that the Act shall not apply to a list of exempt steel products identified by the Department of General Services. DGS is charged with identifying products that are not produced in the United States in sufficient quantities in the previous calendar year. The Department shall then publish the list on its Web site. The intent is to relieve the paperwork associated with complying with the Act in cases where it is well known that certain products are not available. DGS shall update the list of those products annually.

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ADCOMM Engineering Company
Almost Home Inc
ARIS Engineering, Inc.
Bain Medina Bain
Baird, Hampton & Brown, Inc. Engineering & Surveying
Barr Engineering Company
Bartel & Associates
BBFM Engineers Inc
Beardsley Design Associates
Becht Engineering BT Inc
Bernard R Berson PE LS PP, Consulting, Forensics, Seminars
BMJ Engineers & Surveyors, Inc.
Brite Engineering Consultants, Inc
C Allan Bamforth Jr., Engineer-Surveyor, LTD
Commonwealth Associates Inc
CRW Engineering Group LLC
CT Consultants Inc
Davy Engineering Company
Design Alaska, Inc
Engineering Tech PA
Exponential Engineering Co
Foth Production Solutions, LLC
Fugro Consultants, Inc.
Gannett Fleming
HF Lenz
Horner & Shifrin, Inc.
Hull & Associates, Inc
J & Y Engineering Services Inc
Jahnke & Jahnke Associates
JK Consulting
Kellard Sessions Consulting, P.C.
Klingner & Associates PC
Kuhlmann Design Group Inc
McMahon Associates, Inc
MEP Engineering Inc
Michael Baker Corporation
Michael Ernst PE PA
Norris Kuske & Tunstall Consulting Engineers, Inc.
Nortech Inc.
Nussbaumer & Clarke Inc
O'Malley Engineers LLP
Ostergaard Acoustical Associates
Palmerton & Parrish Inc
POWER Engineers Inc
Providence Engineering Corp
Rentech Boiler Systems, Inc
Richard W Rauseo PE Consulting Engineers
Ridge & Associates Inc
RSA Engineering Inc
Schkeeper Inc
Strickland Engineering LC
Suberroc Systems SUBSYST
Sundquist Engineering PC
Traffic Planning and Design Inc
Traffic Planning and Design Inc
Tri State Engineering Inc.
TVG Environmental, Inc
University of Houston
Van Note Harvey Associates PC

Join your colleagues and competitors.
List your firm on the NSPE Web site
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PEPP 2012-13
Executive Board

Dawn Edgell (Chair)
Aurora, IL

Eric L West
Midland, TX

Andrea N Martinez-Graves
Tampa, FL

Kevin C Skibiski
Ozark, MO

Amy Barrett
Evansville, IN

Terrance N Glunt
Boca Raton, FL

Chris K Richard (Vice Chair)
Lafayette, LA


 


 


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