ACPA Quarter 3 2018

Concrete Pavement Progress www.acpa.org 18 Repair of Concrete Pavement Cracking: What the Roadmap Should Be By Thomas R. Olson, Olson Construction Law Editor’s Note: In this issue of Concrete Pavement Progress, we present this column from Thomas Olson of Olson Construction Law. Many members will remember Tom from the 2016 ACPA Annual Meeting, where he discussed, “A Legal Perspective on Meeting Smoothness and Other Concrete Paving Requirements.” This was a popular and well-attended presentation that generated many questions and discussion points, so we are pleased to present this regular column that provides some important perspectives on timely issues of importance to contractors and agencies. Introduction For anyone involved in concrete pavement design and construction, three things are certain: death, taxes and cracking in the concrete pavement. It is also typical that when random cracking occurs, the contractor repairs it at their own cost. For the reasons set forth below, both engineers and contractors need to understand that unless the contractor caused this cracking through improper construction, the contractor should not have to pay for the costs to repair it. This is normally true even if the contract says otherwise. Analysis Contractors normally repair cracking at their own expense. Per industry practice, when randomcracking occurs in concrete pavement, the contractor normally repairs the cracking at their own expense. This makes perfect sense if the contractor caused the cracking through improper construction. More often than not, however, there is no investigation on why the cracking occurred and whether it occurred because of improper construction (i.e., failure of the contractor to follow the engineer’s design). An important question to address at the outset is why there normally is no investigation and why the contractor repairs the cracking at their own expense. My experience identifies four reasons: 1. Many contracts expressly require the contractor to repair cracking without regard to why the cracking occurred; 2. Whether the contract requires this or not, the engineer will require this and the contractor complies; 3. Since the owner did not contract for a cracked pavement, contractors believe it must be their contractual obligation to repair the cracking (i.e. the cracking must have been caused by improper construction ); and 4. Contractors believe theymust repair any cracks tomaintain relationships. While it is industry practice for contractors to repair cracking at their own expense, the question is whether contractors should do so. Why? P A V E M E N T C R A C K I N G