ACPA Quarter 2 2019

Concrete Pavement Progress www.acpa.org 22 A B O U T T H E L A W We know this from personal experience. We are, for example, cur- rently representing a contractor seeking payment froma large national utility for delay-related costs that arose because the utility failed to provide accurate information. When we deposed the utility on to what extent its location information was accurate, we were told two things. First, the utility does not maintain any information on the vertical location of its lines. Second, as to the horizontal location, its information was only accurate to within +/- 1500 feet! 4. FHWA identified what should be done to remedy the utility problems While FHWA made a number of recommendations, there are two key ones. First, public owners should themselves obtain accurate and complete utility information . Owners can and should accomplish this through subsurface utility engineering (SUE). 8 This involves either test holes or potholing. This enables owners to obtain accurate horizontal information (X and the Y) as well as vertical information (the Z) which utilities are unable to provide . The Florida DOT currently does this by “conduct[ing] a reasonable amount of test holes for locations where there is a potential utility conflict with the project.” 9 This information, the X-Y-Z data, is indicated on the plans as a verified vertical and horizontal (VvH). Contractors stated that they trust data on the plans that are shown as a VvH because they know the data has been verified. 10 Second, owners should execute agreements with the utility companies for the timing of utility relocation. 11 The agreement describes both what relocationwork the utilitymust performas well as when to perform it. 12 5. FHWA’s recommended use of sue accords with asce standard 38-02 FHWA is not the first to recommend the use of subgrade utility engi- neering (SUE).The American Society of Civil Engineers has previously established a standard for utility location efforts. ASCE Standard 38-02 defines four levels of quality location efforts. Location efforts are graded on a scale from “A” to “D.” At the “D” quality level, which is the worst, owners rely exclusively on utility records for location and, to the extent necessary, relocation. Based on my experience of more than 30 years for all levels of public construction throughout the country, as well as FHWA’s national evaluation of DOTs practice, most public owners’ current efforts would grade out at the “D” level . By contrast, if owners would use subgrade utility engineering such as test holes and potholing to accurately obtain both vertical and horizontal data, the quality of such efforts would rise to the “A” level. 6. FHWAclearly communicated that on federally-fundedprojects, dots are required to obtain accurate utility information and schedule relocation to the extent necessary It is important to recognize what all public owners should do, and what they are currently required to do. On state DOT projects which involved federal funding, the agencies are required per CFR 645.113 to “prepare utility relocation plans when the utilities conflict with the highway project.” 13 These plans detail what utilities need to be relocated and when. FHWA expressed in no uncertain terms that DOTs cannot comply with this requirement unless they obtain ac- curate and complete utility information. To develop the plans, agencies must locate utilities that are potentially in conflict with the highway design. The only way to know if there is a utility conflict is to know the accurate location. 14 Since DOTs cannot obtain accurate location information from utili- ties, the only way they can obtain such information is by conducting their own subgrade utility engineering. DOTs need to dig test holes and/or potholes during the design phase. If this is not done, DOTs cannot be in compliance with federal law. Contract provisions that purport to exempt DOTs from complying with this requirement or otherwise transferring this to the contractor should not be lawful! What cities and counties must do is beyond the scope of this article. That would require an examination of applicable ordinances, statutes, etc. Based on ASCE Standard 38-02, there should be no question what cities and counties should do. This is further supported by two important points. First, some contract provisions require cities and counties to pay contractors for unmarked and mismarked utilities, as well as late utility relocation. Secondly, insofar as some state laws as well as utility easement agreements grant cities and counties the right to require utility relocation within a stated period of time after governmental notification, if cities and counties fail to exercise this right, we believe there is a sound legal argument that the cities and counties have breached implied if not express contract duties. 7. There can be no question that frompurely a cost/benefit standpoint, all public owners should use SUE to accurately locate utilities For many public owners and engineers, there is a misperception that using SUEwill require toomuch time andmoney. 15 DOT officials have, in fact, cited this as “the primary reason state DOTs don’t accurately locate utilities on highway projects.” 16 A review of applicable data collected by FHWA substantiates this is a misperception. First, FHWA properly concluded that “[i]naccurate utility location data during the preconstruction phase has a detrimental effect on construction and leads to”: • Increased risks for contractors; • Increased contract bids; • Increased costs due to change orders and claims; • Project delays; and • Increasedsafetyriskstocontractors and the traveling public. 17 » continued from page 21