!.

The First and the Last Domino - - -Soil

A. Soil is the first domino in the construction

process:

1. The site must be selected

2. It must be suitable and usable

3. The materials must be adequte to support

the facility

4. Adequate information should be available

to properly

identify design and construction risks, to

prudently design,

to establish construction means and

methods which

permit a productive flow of work.

B. Soil becomes the second domino when the

construction process

begins:

1. Are the construction means and methods

selected compa-

tible with the actual soils and conditions

encountered?

2. Was the design adequate for the

conditions encountered?

C. And if the answer to one or both of the two

previous questions

is "no", then the next domino to fall is a

project management

one: have the parties to the project identified

the causes, and

what needs to be done on a timely and

collaborative basis in

order to maintain momentum on the project

and mitigage dam-

ages?

D. And too often, then, the next domino to fall is

the LEGAL one:

which party has the legal risk; have the proper

contractual steps

been taken?

E. And often, the next domino is post contractual,

when problems

create displacement, water infiltration or other

impairment to

the use of the site and cost of remediation

and/or maintenance.

F. And one day, unless it is an aqueduct built by

the Romans over

two thousand years ago, or a pyramid or a

Great Wall, or a great

dam such as Hoover, it will be necessary to

demolish the struc-

ture and start all over again. Structures come

and go; the material
 upon which they rest for the most part remain.

II. Purpose

The purpose of this section is to set forth the

process for (and the processes will be for both the
owner and contractor):

The development of an adequate investigation

for design and constructibility.

The contractor's pre-bid investigation and

understanding of risk and potential liability.

Avoiding construction problems.

Handling changed conditions if they do occur,

from both a project management and contractual
(legal) point of view.

Pricing and defending claims for changed

conditions, including documentation.

III. The Management of Risks

A. What you don't know will kill you. In the

construction industry, our goal should be to provide
the most complete and accurate information possible
for all the parties to the project. The more we know,
the less the risk. Soils (both surface and subsurface)
provide the greatest vulnerability to process failure
because it is difficult to know everything about soils
conditions and characteristics. On some sites, the
nature of the soils may vary significantly within a few
feet. Some soils are very expansive and some are
not. Some very hard "rock" isn't so hard after all
when exposed to the atmosphere and water (such as
metagraywacke which becomes a slurry once exposed
to the elements and moisture).

B. These variances can affect design and

constructibility as well. And the less that is known
about the characteristics throughout the entire site,
the greater the risk is . . .to all the parties. And the
greater that is known, the less the risk. For example,
on a five mile sewer line through a marshy
environment, log borings were done at every pump
station (each mile along the way) and no more. The
borings showed sandy clay and some rather fatty
clay, all of which were adequate to support the
structural design of the pump stations. Water was
indicated below the bottom of the invert elevation of
the RCPs to be installed No other borings were done
and the contractor relied on these five borings for
both his estimate and his construction means and
methods (a trench box for support during excavation
and installation of the reinforced concrete pipe).
However, between several of the pump stations,
during excavation the sides of the trenches becan to
"dissolve", almost like mercury being poured on a
kitchen table. The 330 catepillar was lost during one
of the excavations because the subsurface material
literally bled away. Of course, further investigation
revealed that in these areas the water table was very
high and that the materials were heavily saturated
with silt, and minimum clays or material with any
structure at all. The meager geotechnical
investigation by both the design firm and the
contractor in its pre-bid investigation proved that
what you don't know will kill you.

And who lost: in this instance, the city lost

because it missed the date in the EPA abatement
order; the engineering firm was held responsible for
damages caused by error and omission and had to
pony up a major portion of both the City's and the
contractor's damage claims ; the contractor had to
"eat" about a third of its losses because it had totally
failed to do any pre-bid site investigation. And that is
what we see so frequently: in cases in which "soil" is
the villain, there are often no winners . . .only varying
degrees of losers.

C. Legal Management of Risks. Risks can be

managed, sometimes avoided, and most minimized
through prudent processes, such as adequate soils
investigations. On the other hand, there is an illusion
that risks can be avoided through legal exculpatory,
disclaimer and other risk shifting clauses. As
indicated in the foregoing example, this approach
often becomes a lose-lose proposition, for even if the
owner has a bullet-proof exculpator or risk shifting
clause, if the project is delayed because of site
conditions, the owner's use of the structure or facility
is delayed and he faces the possibility of a lawsuit.
And if the problem is one of design, the owner's use
of the facility may be adversely affected due to
structural movement, water infiltration, or drainage
issues.

BEST PRACTICES

Develop adequate, thorough, and accurate

informa-

tion regarding soils, subsurface conditions

and char-

acteristics for design and constructibility

purposes.
 Prudent practices should be first line of
defense against

the villain soils, and not legalisms.