Authority of Owner's Testing Agency

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Author Message Robert W. Johnson Senior Member Username: robert_w_johnson Post Number: 69 Registered: 03-2009 Posted on Tuesday, May 18, 2010 - 11:50 am:    I have just run into some specifications prepared by structural engineers that give the following authority to the Owner's Testing Agency: "Rejection: Owner’s Testing Agency has right to reject any material, at any time, when it is determined that material or workmanship does not conform to Contract Documents. Testing Agency shall report deficiencies to Owner, Design Professionals, and Contractor immediately. Certification: When all work has been approved by Testing Agency, Testing Agency shall certify in letter to Design Professionals and Owner that installation is in accordance with design and specification requirements." I have never seen the authority to determine conformance to the Contract Documents and the authority to reject work not in conformance with the Contract Documents given to the Owner's Testing Agency before. Anybody else experienced it? (Unregistered Guest) Unregistered guest Posted on Tuesday, May 18, 2010 - 12:23 pm:    Interesting. Yet another example of a total lack of understanding about Contract Documents, what they are for, how they should be prepared, and parties to the agreement - who is and who ain't. I am pretty confident that in this situation the Contractor could tell the Owner's testing agency to take a long walk off a short pier were it to try and assume such authority during the execution of the project. There is no contractual relationship between the Owner's testing agency and the Contractor. The Contractor is bound only by the Contract Documents and the agreement it signs with the Owner. The Owner may indeed have the right to reject work, but this is not something that can be transferred to the testing agency through the ignorant structural engineer's specification language. Yep, I see this stuff all the time from consultants. Wish I could do the Matrix knowledge upload thing "I know Kung Fu!" with each consultant before every project starts. If only life were that easy. Buy the engineer a PRM and require him/her to read it before writing another spec... (Unregistered Guest) Unregistered guest Posted on Tuesday, May 18, 2010 - 12:34 pm:    The right to reject work that is typically reserved for the Owner. Unless the Owner says otherwise the SE should be told that he needs to change his specifications to conform to the Owner Contractor agreement. In addition the SE needs to have a talk with his E&O insurance carrier and his lawyer since they will not be happy with such practices. The Testing Agency is retained by the Owner and I would expect the Testing Agency has addressed this issue in their agreement with the Owner. It would be inappropirate for the SE to try to impose such a requirement on the Testing Agency. In addition since the contract documents are defining the relationship between the Owner and the Contractor it would be inappropriate to talk about the relationship between the Owner and the Testing Agency who is hired by the Owner. Robert W. Johnson Senior Member Username: robert_w_johnson Post Number: 70 Registered: 03-2009 Posted on Tuesday, May 18, 2010 - 01:23 pm:    The question is not what the issues are with such provisions - I think we all have a pretty good understanding of what the contractual, legal, and insurance issues are. The question is has anybody else seen similar provisions in consultant prepared specifications? Trying to determine whether this is this is prevalent movement and where it is coming from. If it is from a few isolated consultants, that is one thing, if it is more widespread, that is another thing. Mark Gilligan SE, Senior Member Username: mark_gilligan Post Number: 281 Registered: 10-2007 Posted on Tuesday, May 18, 2010 - 03:05 pm:    These issues have been around for a long time and reflect a lack of understanding on the part of the consultants. The problem continues in part because in many cases the Architect or specification writer either never review the consultants specification section or do not call them on it. More coordination is needed. Whether it is a movement is irrelevant in the context of the legal realities. The Engineer does not have any legal authority to impose this requirement. Margaret G. Chewning FCSI CCS Senior Member Username: presbspec Post Number: 188 Registered: 01-2003 Posted on Tuesday, May 18, 2010 - 03:36 pm:    Having worked as an Owner's rep in the field and with my office temporarily located in the inspection office of a structural engineering firm, I found this to be an interesting discussion. I passed Bob's initial post to Roger Stroud PE, one of the principals here and asked for his view on this. The following is his response: Margaret: That is an interesting discussion. The Engineer who wrote the spec is probably acting out of frustration that we experience when we get reports from the testing agency stating that concrete was poured that was, for instance, too old, too much water added, too much slump, inadequate air, etc., but we find out about it when reading a report 3 weeks later when the building is two more stories in the air, and we have to decide what to do with the possibly bad concrete. However, his (the specifying engineer’s) method of dealing with this is not proper, as gleaned from the discussion. It is also interesting that the language states that the testing agency has the right to reject “material”, but then goes on to discuss non-conforming “workmanship”. Roger Randy Cox Senior Member Username: randy_cox Post Number: 70 Registered: 04-2004 Posted on Tuesday, May 18, 2010 - 06:03 pm:    I recently had a project with a lot of post tensioned concrete. In our meeting before placing any concrete in the second phase, the Owner gave the concrete inspector authority to stop the pour if one of several conditions was not met. We all felt a little odd, but the Owner decided it would be better to fight about a stopped pour than ripping out hundreds of yards of concrete. The only time it came close was on the fifth slab when a gap between trucks nearly ran out the clock on time between pours. Even then, there was a constant stream of phone calls text, messages and e-mails, and the call would have either been made by the GC or the Owner anyway. Randy Phil Kabza Senior Member Username: phil_kabza Post Number: 436 Registered: 12-2002 Posted on Tuesday, May 18, 2010 - 10:59 pm:    Bob: I've frequently seen this sort of thing in CE specs over the years. I've also frequently seen attempts to incorporate the geotechnical report contents in the contract documents. Both such attempts seem usually to be the result of ignorance of contract law and licensure requirements rather than a general movement toward a change in professional practice. We often review structural and civil specifications for the architect and find such provisions, and recommend the architect insist they be corrected to reflect the conditions of the contract. John Bunzick, CCS, CCCA, LEED AP Senior Member Username: bunzick Post Number: 1206 Registered: 03-2002 Posted on Wednesday, May 19, 2010 - 02:02 pm:    We ask that the owner require the testing agency to make a copy of his or her report before leaving the site and leave it with the architect's rep. This can be hand notes, but it at least moves up the notification. 3 weeks later is no good. I don't know how well this works, but I know that we try to get it.