ProfessionalProfessional Engineering Engineering AccountabilityAccountability PolicyPolicy

ODOT/ACEC Conference PresentationODOT/ACEC Conference PresentationMarch 8, 2006March 8, 2006

Cathy Nelson/ODOT and Mel Sears/ParametrixCathy Nelson/ODOT and Mel Sears/Parametrix

AGENDAAGENDA

• Definition of the topic• Status and process for policy

development (in formulation)• ACEC perspectives• ODOT perspectives• Example project issue• Next Steps

What is Professional Engineering What is Professional Engineering Accountability? Accountability?

• Being accountable to the engineering profession’s laws and standards

• Adhering to OSBEELS• Being technically competent• Adhering to the “Standard of Care”

• Applies to ODOT and Consultants to the same degree, but different consequences

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The Practice of Professional The Practice of Professional EngineeringEngineering• Governed by the Oregon State Board

of Examiners for Engineering and Land Surveying (OSBEELS)

Mission“Regulate the practice of engineering and the practice of land surveying in the State as they relate to the welfare of the public in safeguarding life, health and property”

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Professional Engineering Professional Engineering Legal AccountabilityLegal Accountability• Have appropriate technical

competence

• Use appropriate care and professional judgment (standard of care)…Perfect is not achievable

– As ordinarily possessed by reputable engineering professionals practicing in similar locations under similar circumstances

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Engineering under Differing Engineering under Differing ConditionsConditions• Implementing new engineering

theories, technologies, materials….

• Developing low risk routine projects

• Developing high risk unique projects

• Developing emergency projects

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Professional Engineering Professional Engineering AccountabilityAccountability -- --

ODOT’s Programmatic ApproachODOT’s Programmatic Approach

• Engineering Policies & Procedures• Training• Deviation Policy• Design Quality Program• Consequences for failure to comply

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Performance Accountability Performance Accountability Consequences…Consequences…

Regulator ODOT Staff Engineers

Private Sector Consultants

OSBEELS Individual Engineer Accountable to Oregon Professional Practice Law

Revoke license & assess civil penalties Owner ODOT

Individual Engineer - Performance Mgmt.

Discipline

Individual Firm – Errors & Omissions Cost Recovery

Public Individual Engineer & ODOT covered by Oregon Tort Claims Act

Firm covered by General Liability Insurance

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Framing the concern…Framing the concern…• During design?

Plans and specs can’t be “100% perfect”– Some errors and omissions are part of the normal

process and are to be expected– Standardizing processes will help improve quality level– Develop policy and processes to deal with

imperfections in design• During construction?

Field interpretations are always required– Develop “partnership” to resolve– Develop policy and processes to deal with field

interpretations and changes • How does it affect ODOT Engineers?• How does it affect consulting engineers?

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Where are we now on the Where are we now on the policy?policy?• A policy is in “formulation” stages

– A goal is to have ODOT and private industry input throughout the process

– A goal is to bring some clarity to a controversial topic

– A goal is to improve effectiveness– A goal is to build a common

understanding and partnership

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ODOT Errors & Omissions ODOT Errors & Omissions PolicyPolicyKey Components

• Identifying Errors & Omissions– When, How, Roles, Responsibilities,

Documentation

• Evaluating Errors & Omissions– Define Standard of Care Threshold

• Cost Recovery Process

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ODOT E & O Policy ODOT E & O Policy Dev. and ImplementationDev. and Implementation

• Develop Basic Policy Components

• Stakeholder review/input

• Internal/External Training and Communication

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ACEC Perspectives…Foundation ACEC Perspectives…Foundation PrinciplesPrinciples

• Recognize DOT’s stewardship role to the public

• Common understanding of standard of care vs. perfection by owners

• Consultants professional liability insurance only for “negligent” E&O

• Fair, equitable resolution processes • Partnership environment• Understand cost recovery around

negligent performance

AC

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ACEC Perspectives…ACEC Perspectives…

• Opportunity to stay engaged in construction and being notified immediately of problems– avoid on-site “judge, jury, executioner”

• Betterment philosophy– If an omission would have been required anyway

• Totality of the project– Put changes and issues into scale

• Cost recovery should be based on negligence– When the standard of care is breached

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ACEC Perspectives…ACEC Perspectives…

• Fair compensation– Compensate for non-negligent effort

• Weigh recovery costs vs. damages– Spending $100 to get $1

• Appeals process– Defined, fair, equitable, non-retaliatory

• No percentage thresholds– Too arbitrary; too many factors

• Contingency Planning– Budget for changes

• Active participation for post-design servicesAC

EC

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ODOT PerspectivesODOT Perspectives

• Public Stewardship– Safe and Functional Transportation Infrastructure– Cost Effectiveness

• Industry Partnership

• Shared Understanding and Delivery of Appropriate Standard of Care

– Technical Competency– Due Diligence– Industry Standard of PracticeO

DO

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Negligent Perfect

Example of the complexity…Example of the complexity…

• ODOT Bridge project• ODOT approves Consultant’s scope

and budget for geotechnical investigation

• Bridge designed by Consultant based on Subconsultant geotech report

• Field issues encountered in construction while driving piles, piles too long

• Field change order issued by ODOT Project Manager to contractorC

ase

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Example continued…Example continued…

• ODOT requests Consultant cost recovery for issued change order

• Consultant suggests issue is within Standard of Care

• Field conditions not always completely definable

• Tensions arise, communication deteriorates, time goes by, participants dig in to their positions

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Next Steps…Next Steps…

• ODOT puts more meat on the draft policy

• Develop input process

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