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Successful launch of AGS Code of Conduct for Site Investigation AGS Members have shown there support for this initiative by signing up to the Code of Conduct with encouraging alacrity. A recent reminder to those who may have accidentally overlooked the necessity to return their declaration of support produced a further flurry of signatures - and it is anticipated that the remaining few will come trickling in over the next week or so. The time is almost ready therefore to demonstrate the level of support to the wider industry. This will be done through an advertisement in Ground Engineering which will list all those who have indicated their support. Make sure you have returned your signed form A survey conducted for the November issue of Ground Engineering discovered that 95 percent of those questioned had heard of the AGS Code of Conduct for Site Investigation. Of these - 84 percent indicated that they intended to comply with the Code. Additionally the Good Practice Guidelines for Site Investigation have been widely circulated. Particularly encouraging has been the number of requests which have been received for copies of the Guidelines - even from those who thought that there might be a charge! AGS Members - as supporters of the Code of Conduct - can help to spread the word by enclosing copies of the Good Practice Guidelines with their tenders and in correspondence with clients. Copies are available free from the AGS Office. The Value of Geotechnics in Construction A valuable and unique collection of 32 case histories demonstrating the cost savings and design improvements which can be accomplished by the application of good geotechnics within a well managed project. The volume represents the papers from the recent AGS Seminar on the same topic and is available at the special AGS price of GB Pounds 50 (p&p included). The AGS is pleased to welcome the following new Members: Paul Bardos - Personal Member The AGS Membership now exceeds 100. More applications are currently being processed and interest is clearly growing. Mergers within the industry however means that we have to run very hard, just to stand still. Geotechnical Adjudicators Needed As the article elsewhere in this Newsletter makes clear - the Construction Act opens the way for contractual disputes to be taken to adjudication in the first instance. Although in some cases the adjudicator will be named in the contract, there is also the possibility of appointing an adjudicator at a later stage when the nature of the dispute is known. In this later case, the services of a geotechnical or geoenvironmental specialist might be called for. At this stage the choice of adjudicator may be made by mutual agreement between the parties, or by an application to an 'Adjudicator Nominating Body' (ANB). A quick survey of some ANB's to find out about their requirements for adjudicators on their lists reveals the following:- Academy of Construction Adjudicators: open to practitioners with 10 years experience and approved training. (Currently has over 200 registered adjudicators - some with geotechnical experience - and makes 1-2 appointments per week). Mutual recognition exists between ACA and RICS. Chartered Institute of Building: adjudicators must be 'professionally qualified'. Has 22 adjudicators on list at present (geotechnical/geoenvironmental expertise not specifically identified) and has made 4 appointments. Institution of Civil Engineers: applicants must be Chartered Engineers of at least 10 years standing and must have worked as project manager, contract manager, engineer or architect (or equivalent) on an engineering or construction project in the past 5 years. (Has around 70 registered adjudicators - few with geotechnical experience - and has made very few appointments to date). Construction Industry Council: invites Members on the CIOB, ICE, RIBA and RICS lists to register with the CIC. Royal Institution of British Architects: applicants must be construction professions of at least 7 years standing with experience within the last 5 years as an architect, engineer, surveyor, project manager, arbitrator, adjudicator, mediator or conciliator and a working knowledge of at least one major standard construction contract. 52 registered at present - unable to do search of database to identify specific interests. Royal Institution of Chartered Surveyors: applicants must normally be under 65 years and be able to demonstrate that their current practice and experience is relevant and that they are up to date with new legislation. Performance is regularly monitored to remain on the register and adjudicators must fulfil appropriate CPD requirements. Note: these are very brief outlines, only and all have further more detailed requirements. ALL require an appropriate training course - usually a minimum 2 days - at the applicant's expense. Most selection procedures include an interview. There is some mutual recognition between bodies. Recently the AGS received its first request for a list of qualified experts from which an adjudicator could be selected. This posed a slight problem - because at the present moment - no such lists exists. Therefore: Need to know more? Contact the appropriate body/bodies:- ACA (01684 567 080) Geotechnical Third-Party Reliance on the Move Article reproduced from ASFE Newslog, March 1998 It started in Minnesota and is now moving into other states - lenders (and feasibly others) are requesting that geotechnical engineers permit them to rely upon geotechnical reports to the same extent as clients. Our advice: DO NOT DO IT. Feel free to show those who request third-party reliance a copy of this article, or have them contact ASFE. A geotechnical report is prepared for a client. The exploration and testing regimen upon which the report is based, as well as the recommendations included in the report, are developed to reflect a client's specific needs. A geotechnical consulting team may choose from an infinite number of approaches to specify and conduct exploration and testing on any given project. A wide range of recommendations is possible based upon exploration and testing, and none of the recommendations can be deemed final unless and until the geotechnical engineer responsible for exploration and testing has provided the degree of field services required to fulfil precepts of the observational method. All services are rendered in accordance with the contract that establishes the specific relationship between the geotechnical professional and the client and their obligations to the service in question and to one another. Your permitting a third party to rely on a geotechnical report prepared for someone else might be considered an act of negligence. It is akin to a physician permitting a patient's neighbour to rely on the patient's prescription without first examining the neighbour (to determine if the individual is allergic to certain medicines, and so on.) In addition, the third party would have the opportunity to rely on a report prepared for someone else with none of the contractual responsibilities in place. If this practice becomes common, the professionals involved could have unlimited liability to virtually any third party. The third party often presents the argument that "others do it all the time." For example, we know that some physicians prescribe medicine by phone. However, this practice is not professional and is extremely dangerous for obvious reasons. In the case of the Kansas City Hyatt walkway collapse, which killed 114 and injured more than 100 others, some permanently, one of the defendant structural engineers argued that "we did it the way all the other structurals in the area do it." If that's true, the judge said before stripping the structurals of their PEs, all the structural engineers in the area should lose their licenses. Remember, too, that the same geoprofessional working on the same site could come up with significantly different recommendations because of client-specific factors. Permitting a third party to rely on a report that wasn't developed for that third party might be considered reckless for many reasons. In that case, the resultant liability might not be covered by your professional liability insurance. The AGS publication 'Geoenvironmental Site Assessment: Guide to the Model Document Report' provides invaluable guidance on report writing in general (not just for geoenvironmental reports). Available from the AGS Office, price GB Pounds 28 (Members) GB Pounds 45 (Non Members) p+p inc. The Construction Act is the shortened title for the Housing Grants, Construction and Regeneration Act, 1996. Part II applies to construction contracts and came into force on 1 May 1998. Only contracts entered into after the 1 May 1998 will be subject to the provisions of the Act. The Act is designed to improve the construction process by ironing out perceived unfairness between employer, main contractor and sub-contractor and by providing a quick and inexpensive form of dispute resolution. Key provisions include the introduction of an adjudication process; mandatory payment time tables; restrictions on the right to set-off; a new right to suspend work for non-payment and the partial outlawing of pay-when-paid clauses. A key supporting document to the Act is the Scheme for Construction Contracts. This document comprises provisions which will apply to all construction contracts unless the contract contains clauses of its own which comply fully with the Act. Construction contracts include not only contracts between employers and building/civil engineering contractors but also professional service agreements between consulting engineers or architects and their clients, and sub-consultancy arrangements. (Exceptions to the Scheme such as contracts with residential occupiers and supply only contracts for materials, plant or machinery, are listed in the Act). All construction contracts and consultancy agreements will be
affected in two important ways:
Adjudication With the new Act now in force, it is the statutory right of either party to any construction contract or consultancy agreement (that is evidenced in writing and is not one of the few exceptions) to call for at any time an independent adjudication on any matter relating to the contract. The adjudicator's decision has then to be reached within a time period of 28 days, which may be extended to 42 days with the consent of the referring party. Other than this, no extension on the 28 day period is possible without the agreement of both parties. The adjudicators' decision shall be binding unless finally determined through appeal by legal proceedings, arbitration or agreement. Payment Under the Act, a party to a construction contract or consultancy agreement is entitled to payment by instalments, stage payments or other periodic payments for any work under the contract (unless it is specified in the contract or is agreed between the contract parties that the duration of the works is to be less than 45 days). The parties are free to agree amounts of payment and the interval at which, or circumstances in which, they become due. In the absence of such agreement, the relevant provisions of the Scheme apply. Further provisions are to be included in the contract for determining due dates of payment; set-off procedures; the right to suspend performance of obligations under the contract for non-payment; and the outlawing of pay-when-paid provisions within contracts. The Act sets out in detail what a contract must contain by way of both adjudication clauses and payment clauses. It also prescribes how the clauses contained in the Scheme will apply. Adjudication The contract will be required to comply in full with the Act and if it does not comply in full then a party has the right to apply for adjudication under the Scheme and all of the scheme's adjudication clauses will apply. Payment provisions Contracts will still be required to comply in full with the Act but if they do not comply in full then only the relevant omitted part of the Scheme will be applied i.e. just the payment requirements that are missing from such contracts will be invoked automatically from the Scheme. Consultancy agreements Under appointments based on just an exchange of letters, without specific reference to a standard form of agreement such as the ACE Conditions of Engagement, consultants will become automatically bound by the Scheme. It is preferable to have an agreement that is standard and compliant with the Act. Not withstanding this consultants should be advised not to accept an appointment without expressly stating in writing the terms of engagement or, in appropriate cases, where they are to be found. General advice at present is that consultants should seek to avoid going beyond the statutory minimum, as contained in the Act, in the terms of agreements with clients. They should therefore try to avoid reverting to the Scheme by default by ensuring in writing that the ACE Conditions are applicable. Especially important, they should read with the utmost care and take advice if necessary on all non-standard schemes, prepared by others, that they are asked to accept in their agreements. Construction contracts Many of the standard forms, such as the ICE Conditions (5th Edition, 6th Edition and Design and Construct) and the JCT Conditions, have been revised and amendments published to comply with the Act. These amendments are available from the ICE and JCT. It is recommended that these amendments are incorporated into the ICE and JCT Conditions of Contract, subject to approval by the Employer. Amended clauses for NEC Contracts are not yet available. Professional Indemnity Insurance The ACE and Griffiths and Armour (the ACE PII scheme brokers) have confirmed that the ACE Scheme for PI will cover any liability as a result of an adjudicator's decision, but it is essential that notification of any possible claim is given to them immediately so that a defence may be made as appropriate. It is not clear if other PI insurers provide this cover but it is known that some are making it a condition that insurers must be notified of a potential claim within 24 hours or cover will not be given. The ICE and the Construction Industry Council have produced Model Adjudication Procedures to assist with the implementation of the statutory right to adjudication. These can be incorporated by reference into a contract, or used by agreement of the parties to the contract. Both procedures are accompanied by a model agreement for the appointment of an adjudicator. Note: The ACE have now published 'Amendments to the ACE Conditions of Engagement 1995 to comply with the Construction Act 1996'. The 2nd Edition of the 1995 Conditions are due to be published shortly. As well as complying with the new Act the 2nd Edition Conditions will include improvements arising from the experience of three years of use. When published, the revised conditions will replace all existing agreements (A to F). Approximately 60,000 litres of petroleum leaked from an underground storage tank (UST) at a retail site in Bontddu North Wales in the summer of 1996. The tank was replaced in September 1996 but a limited initial investigation failed to locate the lost product. Subsequently, product commenced seeping out of the bank of the River Afon some 75m from the site boundary. Vapours from the product on the riverbank and possibly from product in the ground created a vapour nuisance in three residential properties between the retail station and the river. The site is underlain by made ground, comprising rock fill and clay, resting on bedrock. The bedrock consists of a highly fractured slightly metamorphosed siltstone. The initial investigation indicated that the made ground was up to 4.5m thick in the vicinity of the UST, thinning to 1.5m to 2.0m outside the tankage area. However, the "bedrock" encountered by investigation outside of the tank farm could have been large boulders in fill, with actual bedrock present at a greater depth. Geological maps indicate that the bedrock beneath the site belongs to the Cambrian Maentwrog Formation. This formation typically consists of heavily faulted silty mudstones with thin quartzose siltstone and sandstone beds. No groundwater or product was encountered by the initial investigation. Elevated petroleum hydrocarbon vapours (>500 ppm(v) by PID) were encountered in the deep bores around the tankage at the made ground to bedrock interface (ie 4.6m to 5.0m depth). In February 1997, ENSR International first visited the site with the Environment Agency and submitted a proposal for investigation of the sub surface geology and identification of the separate phase product plume. The proposal was to sink boreholes using a rotary air flush ODEX drilling system which draws casing down into the ground immediately behind the cutting head. This technique was adopted because of its ability to penetrate the difficult geological conditions and to minimise disturbance of the ground. A health and safety risk assessment and management plan, which included monitoring of vapours emitted from the boreholes during drilling, was produced prior to site work. Three boreholes were sunk on 3 April 1997 between the retail station and the nearest residential property. During the sinking of the last borehole, a rapid vapour combustion occurred in one of the properties which fortunately caused only limited harm and damage. Clearly this was a very serious incident and the effects could have been much more serious. Although not conclusively established, it is possible that despite the system adopted, the air flush drilling may have caused a vapour build up in the residential properties, albeit between 6 and 12m distant. Thus, although ENSR International had undertaken a formal Health and Safety risk assessment, the Company decided to plead guilty to the HSE prosecution and has been fined £15,000. The Company believes, however, that this was an exceptional and unprecedented case since research undertaken has not been able to identify a similar incident in either the UK or North America. ENSR is an extremely safety conscious organisation and considers that the experience gained from this incident should be shared as widely as possible. The Company is, therefore, circulating this note in order that all parties involved in the storage, investigation and remediation of petroleum products may be aware of the potential risks. Should anyone require more detailed information please contact: Peter Witherington |
