ACPA Concrete Pavement Progress Q2 2020

Concrete Pavement Progress www.acpa.org 22 L A W Where to Find Essential Utility Obligations and Rights for Unmarked, Mismarked, and Late Utility Relocation When They Exist Outside of the Contract By Tom Olson NOBODY KNOWS BETTER THAN CONTRACTORS howmuch unmarked, mismarked, and late util- ity relocation cause both extra costs and project delay. And these utility-related problems will continue. These problems are more prevalent today than in the past because most current road- work involves the reconstruction or expansion of existing highways, roads, and bridges where utilities already exist versus new construction. So, what can contractors do to protect themselves against the financial impact? We previously covered “Unmarked, Mismarked and Late Utility Relocation: A Roadmap to Fi- nally Remedy” ( Concrete Pavement Progress , Quarter 2, 2019). In that article, we focused on what utility-related problems arise, how great this impact is to contractors, how and why DOTs are legally required to remedy this on federally-assisted projects, and how cities and counties could remedy this problem. Since that time, we have more fully examined on a national level what cities, counties, and DOTs are required to do and whether contractors have a right to additional time and compensation if these utility requirements are not satisfied by project owners. The following is an overview of our national findings. Due to limited article space, this overview will be brief. 1. Federal Program Guides The challenge for contractors is that a majority of the utility-related requirements are set forth outside of the contract documents. As a con- sequence, unless and until contractors access and learn about these documents, they will be ill-prepared to exercise their rights to obtain additional compensation and time. This is even more essential given that both owners and proj- ect engineers are unlikely to have accessed and learned about these requirements themselves. One source for accessing a public owner’s utility- related obligations are federal program guides. While there are numerous guides, two exam- ples provide a plethora of useful information. The FHWA issued an important report in 2018 FHWA entitled “National Utility Review: Utility Coordination Process.” This document detailed obligations that DOTs were required to satisfy on federally-assisted projects. It explained that federal regulations required DOTs to prepare utility relocation schedules. The FHWA further explained that DOTs could not determine when utilities needed to be relocated without knowing where therewere utility conflicts that necessitated utility relocation. Per the FHWA, this required that DOTs, during the design phase, engage in some form of Subsurface Utility Engineering (“SUE”). One example given was potholing. This document is important because it makes DOTs responsible for what is typically the con- tractor’s responsibility. Per the standard clause regarding “Coordination of Utilities,” the con- tractor is required to schedule utility reloca- tion. The same is true for determining the exact location of utilities: contractors are typically required to pothole after the OneCall. Notably, the FHWA has stated that both of these tasks are the responsibilities of DOTs in the design phase, not contractors. So, I believe that the contractual allocation of these responsibilities to contractors should be treated as unenforceable. Indeed, to hold contractors responsible for the coordination of utilities on federally-assisted projects, in my opinion, violates federal law. And, to the extent that DOTs fail to satisfy these requirements, I believe contractors should have the right to additional compensation and a time extension for late utility relocation as well as unmarked or mismarked utilities. Another important federal guide is entitled “Util- ity Relocation and Accommodation on Federal- Aid Highway Projects.” The FHWA prepared this guide in 2003. I believe it can and should be interpreted to extend the above-referenced DOT requirements to city and county projects. 2. State Regulations and Statutes Important utility requirements may also be set forth in state regulations and statutes. Such regulations and statutes cover a wide array of important issues. Some examples include regula- tions and statutes which prescribe the following: • A “right-of-way user shall notify the local government entity when facilities are to be abandoned.” • At the ONE-CALL DIG PHASE, “an op- erator shall locate and mark or otherwise provide the approximate location of . . . the operator’s abandoned and out-of- service underground facilities.”