Engineering Inc. - July/August 2009 - 32

ONE ON ONE Risks of Emerging Trends, Project Delivery Chief Focus for Legal Counsel Forum Q. Michael A. Platt is general counsel and executive vice president of CHA in Albany, N.Y., and chairman of ACEC’s Legal Counsel Forum. a. What are some of the potential liability implications of industry trends in BIM, green building design and other technological advances? Q. a. What issues are legal Counsel Forum participants grappling with these days? This is a challenging time to provide legal representation to engineering companies. Several issues are keeping Legal Counsel Forum (LCF) participants busy, such as the state of the economy, increasingly complex project delivery The biggest concern is the shifting of a disproportionate amount of risk from the client to the engineering professional. This issue is central to the negotiation of provisions addressing indemnification, limitation of liability, consequential damages and insurance. LCF participants deal with these issues in a vari“Emerging trends such as BIM and green ety of contexts on a daily basis, and they are a constant topic building design hold great promise for the advancement of engineering and construction.” of discussion at Forum meetings and on the listserv. when an engineering professional represents that a project will obtain a particular LEED standard, or represents that a particular approach will produce a certain level of energy savings. To minimize the risks, engineering professionals should involve their legal counsel when drafting the scope of services for such projects. Advanced technologies such as BIM and other modeling Emerging trends such as BIM and green building design hold great promise for the advancement of engineering and construction. However, from a legal perspective, these technologies and innovative methods raise difficult questions as to the engineer’s standard of care, the obligations and responsibilities of the various parties involved in the project, the appropriate contractual relationships and ownership of deliverables. As to green building design, the most notable risks arise Q. software have a tendency to create unrealistic client expectations, such as that projects will have no change orders or delays. Even with advanced technologies, the engineering and construction of a project is a dynamic process with issues that are difficult to foresee. a. What specific contract issues pose the most concern for today’s design firms? means of sharing information and formulating approaches that work for both groups. In the end, the insurance professionals and the attorneys have the same objective of protecting the engineering professionals from unreasonable risks. Of particular interest at our last meeting was the issue of engineering firms providing nontraditional services, and whether such services were covered under professional liability policies. Nontraditional services can include, for example, preparation of emergency management plans, evacuation plans, software design, security design and consulting, and preparation of financial grant applications. Engineering firms need to make their insurance brokers aware of any nontraditional services they provide so the services can be properly endorsed on their professional liability policies. n The Legal Counsel Forum was created in 1987 for ACEC Member Firm counsel to share information about pertinent legal issues facing engineering companies. The Forum comprises approximately 120 legal and risk management professionals and meets for a day and a half in conjunction with both the ACEC Fall Conference and the Annual Convention. methods and rapidly changing technology, including Building Information Modeling (BIM). More specifically, LCF participants are dealing with new legal requirements stemming from the American Recovery and Reinvestment Act, issues arising from the reductions in workforce that many firms unfortunately must undertake and new delivery methods such as public-private partnerships. 32 ENGINEERING INC. Q. a. the lCF today includes professional liability insurance professionals as well as attorneys. How has the interaction of the two groups benefited the Forum? The attorneys and professional liability insurance professionals deal with many of the same issues, and the interaction has been very positive. The LCF provides a july / auGust 2009

Engineering Inc. - July/August 2009

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