ACPA Quarter 2 2019

www.acpa.org Quarter 2, 2019 21 A B O U T Unmarked, Mismarked and Late Utility Relocation: A Roadmap to Finally Remedy By Thomas R. Olson, Esq. and Rielly J. Lund, Esq. This is the latest in our column offering perspectives on some of the top issues faced in the construction industry. This article is presented by Olson Con- struction Law, P.C., an ACPAmember, as a service to clients and contractors. 1. Unmarked, mismarked and late utility relocation is the leading cause of delays and extra costs on highway projects The leading causes of transportation construction delays are utili- ties that not accurately identified in the plans as well as late utility relocation. 1 This is a huge problem for everyone. Contractors often incur significant extra costs as a consequence, and those costs are typically not compensable. On other projects, owners often pay for this through change orders or higher bids. Local businesses located alongside delayed projects also lose significant monies and often close because access is limited or blocked, and safety risks for both contractors and the public increase. For most, it unfortunately seems that there is simply no remedy to resolve this problem. In October of 2018, the Federal Highway Administration (FHWA) issued a Final Report, “National Utility Review: Utility Coordination Process” (“report”). In the report, FHWA began by acknowledging both the regular and significant impact of unmarked, mismarked and late utility relocation (“utility problems”). 2 As a prime example of the problem, FHWA noted that on Texas DOT projects, “contrac- tors had to wait long periods— sometimes up to two years —for utility work to be completed.” 3 2. FHWA recognized that the primary reason for utility problems is because public owners fail to accurately locate existing utilities To evaluate utility problems, FHWA assessed what is the standard operating procedure for DOTs in “all 50 states, theDistrict of Columbia, and the Commonwealth of Puerto Rico.” 4 FHWA determined that the primary reason for utility problems was DOTs failing to properly investigate the existence and location of utilities. Most state DOTs do not adequately investigate underground utilities, especially vertical or depth (Z coordinates), resulting in utility conflicts either being mis-identified or not identified at all during the preconstruction phase. This results in contrac- tors unexpectedly encountering utilities during construction, a situation that often increases project cost or causes delay, or sometimes both. 5 3. DOTs and other public owners incorrectly assume that utilities know the precise location of their underground utilities DOTs and other public owners are failing to accurately locate utilities during the design phase because of their misguided assumption that utilities know the precise location of their underground utilities. As a consequence, public owners rely exclusively on utility companies for locate information. Owners first obtain names of utility companies that may have utilities within the project limits. Once owners get this information, they notify the companies, identify the project limits, and ask whether the companies have utilities within the project limits. The utility companies respond on whether there are utilities and, if so, where they are. Owners then design their projects on the basis of this information. This is standard operating procedure throughout the country. The problem with this procedure is that the information which owners are relying upon is neither accurate nor complete. Owners “incorrectly assume that utility companies know the precise location of their underground utilities.” 6 The utility company might have a general idea of where its utili- ties are in the horizontal X and Y planes, but these locations are imprecise. Further, utility companies have little to no informa- tion related to the vertical or depth (Z plane) of utility lines. . . . Utility companies did not, and still do not, keep accurate records of the location of utility lines.7 continues on page 22 »