A New Year of Value
Dawn Edgell, P.E., PEPP Chair 2012–13
With a new year comes plenty of new opportunities for PEPP to provide value to NSPE members. PEPP is currently in the process of completing several new products for distribution. These include:
- Part 2 of the PEPP Guide to the Professional Practice of Engineering: The Engineering Organization
- Updates to the EJCDC construction document.
By the time this article is published, PEPP and NSPE will be actively searching for applicants for the many awards that are available to those in our engineering community. NSPE state societies are also currently accepting applications for many of their awards. Many of those applicants are then passed along to NSPE/PEPP for consideration for additional recognition. Look around your office, the latest chapter meeting or event you attended, the colleagues you interact with, is there someone out there that you’ve always thought deserved to be recognized for the work they have done?
There are so many qualified candidates out there that deserve to be recognized not just at the local and state levels, but also on the national stage. PEPP has several awards not just for individuals but for companies as well. Take a few minutes to look at each of the awards from PEPP as well as your state societies.
The deadline for the PEPP award is approaching–April 30–although many of the state deadlines are much sooner, so I encourage everyone to go to www.nspe.org to look at the award descriptions and applications. Nominate someone today and recognize the work of your colleagues.
The PEPP Award
PEPP Merit Award
PEPP Professional Development Award
NSPE QBS Award – in partnership with ACEC (March 15 deadline)
Editorial: Time to Cool Heads on Construction Claims
Model contract documents are a starting point for what construction project team members consider fair treatment, so the five-year updates to the Engineers Joint Contract Documents Committee family of model contracts are important. The EJCDC model contracts, which go on sale this month, contain significant modifications in the change-order and dispute-review process.
These changes have the potential to head off the kinds of poisonous conflicts that ruin so many projects and threaten to bring losses and possible ruin to the companies involved.
EJCDC model contract documents are written cooperatively by the three major engineering associations that endorse and market them: the American Society of Civil Engineers, the American Council of Engineering Companies and the National Society of Professional Engineers. The model contracts represent what those associations think is best for the industry.
One of the most important changes made is in the C-700 document, which covers general conditions and reimagines the change-order and dispute review process.
For the full article, visit ENR.com.[ return to top ]
The law recognizes a very specific responsibility for a party acting as a trustee of the financial affairs of another party: in other words, acting as a fiduciary. This duty requires one to act for someone else’s benefit while subordinating one’s personal interests to that of the other person. It is the highest standard of duty implied by law. However, this fiduciary relationship is not simply created by a professional service agreement as it is represents more than the typical relationship in which one party trusts in or relies on another such as when a client trusts an engineer to design a project or serve as the client’s limited agent in administering the contract for construction. In these cases, although an engineer is making recommendations to the client, the client makes the decisions. A fiduciary relationship extends beyond this typical relationship. It is not simply that the client has trust or confidence in the fiduciary; intrinsic in a fiduciary relationship is the influence exerted by the fiduciary over the financial matters of the client.
While is it highly unlikely that any normal professional service relationship created by an engineer and client would include a fiduciary duty, a fiduciary relationship can be created by parties intending to do so. Such a genesis, however, requires more than a simple contractual provision using the term. The actions must also ratify the establishment of a confidential relationship.
As engineers expand their services on behalf of their clients, the likelihood of creating a fiduciary relationship will also increase. Contract wording and contract performance could create the relationship of trust and control that characterize a level of care that places the financial interests of the client above all other interests. In reviewing the characteristics of a fiduciary relationship and situations in which engineers may be authorized to make financial decisions on behalf of their clients, the possibility of creating a fiduciary relationship would seem to be the highest in the following situations:
Program Management: When an engineer becomes involved in master planning, arranging financing, coordinating design, selecting and authorizing payment for construction, and managing a facility it is possible that the client has given the program manager the real authority to manage its financial affairs.
Construction Management: If this service includes estimating facility requirements, securing the design of the planned facilities on behalf of the client, managing the client’s budget throughout the construction process, and making decisions that have an impact on the construction budget or time, the client may have intended to create a fiduciary relationship.
In these situations, if a client authorizes the engineer to make decisions for the client that have a direct impact on the client’s financial status and the engineer carries out this duty, it is possible that a fiduciary responsibility may be recognized. Of course, it is also possible that the engineer could breach this duty without being negligent.
Most claims brought against engineers result from a lack of communication or management failures. The claims represent real damages or performance by the engineer that falls short of expectations. If the relationship is increased in power and trust, however, contractual remedies, or even statutory remedies, may take precedence over negligence claims.
With public clients, the breach of a recognized fiduciary duty may result in remedies as obscure as a statutory “false-claims” action. This may arise if an engineer is held to have over-estimated the need for a public facility and, because the engineer had the trust of the client and the authority to do so, to have over-designed a public facility for the purpose of increasing its fee. The over-spending of public money for the services identified as being needed by the engineer and later furnished by it, therefore, could be seen as a fraudulent claim against the engineer.
Engineers can protect themselves from unmanageable risk far better by establishing a realistic scope of professional services, carrying out their responsibilities according to their contract, and continually reinforcing the understanding of their duties and limitations through their actions and in communications with the client and other stakeholders in the design and construction process.
© 2013, 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.[ return to top ]
A State-by-State Summary of Liability Laws Affecting the Practice of Engineering
A must-have tool for firms drafting, negotiating service agreements, and managing risks in various states. To help guard against increasing liability claims, this excellent resource describes the current status of every state’s key engineering liability-related provision. It also includes information and language regarding statues of repose, certificate of merit, sole-source worker’s compensation, joint liability provisions, and Anti-Indemnity Statutes and Limitation of Liability.
Purchase your copy today at "Shop NSPE." Discounted member price is $25.00.[ return to top ]
CDC Engineer Named Federal Engineer of the Year
NSPE held its 34th annual Federal Engineer of the Year Award (FEYA) ceremony on Thursday, February 21, at the National Press Club in Washington, D.C.
More than 100 people were in attendance as NSPE and its Professional Engineers in Government interest group recognized and honored 22 outstanding engineering professionals representing 13 federal government agencies and the U.S. Armed Services. The 2013 FEYA recipient is Captain Richard Gelting, Ph.D., P.E., with the Department of Health & Human Services, Centers for Disease Control and Prevention. The keynote speaker was the Honorable Regina M. Benjamin, M.D., the U.S. Surgeon General.
We invite you to read more about Captain Gelting and view photos and an excellent video highlighting this year's FEYA ceremony on NSPE's Web site. [ return to top ]
New Spring Webinars!
Register for these online webinars.
Conversation About Professional Practice Issues
April 17, 12:30–1:30 p.m. (E.D.T.)
Join NSPE Deputy Executive Director and General Counsel Arthur Schwartz and a panel of engineering ethics experts for a discussion on academic integrity, recommending termination of employment, duty to advise client of a subpoena, and conflicts of interest. Polling questions and opportunity for Q&A will allow for audience interaction. 1 PDH
Leading as an Engineering Responsibility
April 23, 12:30–1:30 p.m. (E.D.T.)
There is a lot of talk these days about leadership and excellence. What does leadership mean to you? Do you believe that only executives can be leaders? Why should you be concerned about leadership yourself? Why is it important for engineers and scientists to step up to leadership? Do you add value to your organization? How can you have more influence in your organization and have more fulfillment in your professional and personal and life?
If these issues are of interest to you, you will want to join the NSPE webinar on April 23 to hear Ron Bennett speak. Ron and coauthor Elaine Millam have just published ‘Leadership for Engineers: The Magic of Mindset’. The book is based on interviews and research on leadership development of working technical professionals, and represents their 80+ years of experience in industry and academia developing leadership skills in working adults. 1 PDH
Engineering Ethics: A Conversation About Safety, Confidentiality, Online Engineering Services and Other Issues
May 15, 12:30–1:30 p.m. (E.D.T.)
Join NSPE Deputy Executive Director and General Counsel Arthur Schwartz and a panel of engineering ethics experts for a discussion of providing online engineering services, accepting promotional advertising as consideration, safety issues relating to highway scaffolding, and expert witness confidentiality obligations. Polling questions and opportunity for Q&A will allow for audience interaction. 1 PDH
The Pros & Cons of Using Consultants
May 16, 12:30–1:30 p.m. (E.D.T.)
Presented by: Christian J. Knutson, P.E., PMP
Many engineering firms and public agencies find it difficult maintaining the right mix of engineering capability and capacity for every situation. The reason is simple: reduced budgets, limited staff, and an infrequent need for certain specialties. To remedy this, most firms and public agencies rely on consultants to provide manning assistance, advisory services, and niche skills. Before making the decision to use consultants, a clear assessment of the pros and cons is necessary. During this 60-minute webinar session, participants will gain insight on what factors to assess in making the decision to use consultants, as well as the factors to consider when developing expectations and contracts for consultants. 1 PDH[ return to top ]