Engineering Inc - July/August 2018 - 36

easily understand when the work is fully
performed," says Erin Austin, general
counsel at David Evans and Associates,
Inc. "Terms like 'coordinate' or 'as needed'
or 'as necessary' are unclear and do not
identify which activities are sufficient and
therefore complete."
Another key problem area is when the
client does not understand the impact on
engineering costs and therefore on the fee
when the client wants to make changes or
add work to what was agreed to within the
scope of work.
"That's especially true if the project is
quite far along," Bates says. "Oftentimes
by the time it gets to 60 to 70 percent
complete the owners still think they have
the right to go in and make changes. They
think they can change their minds almost
right up to the end, not realizing how
that changing of mind requires engineering firms to undo what has already been
done."
Naturally, it would be ideal for firms to
prevent such disputes from happening in
the first place.
A good practice is to do thorough preparation before the contract negotiations.
"Conflict resolution starts at the time a
firm makes a go or no-go decision on the
project," Bates says. "As soon as you accept
the project, you're putting the firm at risk.
Spend the appropriate amount of time on
preparation, and always have the project
manager and marketing and salespeople
involved in the contract negotiations so
everyone is on the same page."
Again, during negotiations good communications is a key. "You have to go
beyond the written word and talk openly
and candidly about the expectations, especially as related to quality and the scope of
work," Bates says.
It's important to remember to leave
emotions out of any discussions. "Don't
ignore the issue but treat the matter
professionally, not emotionally," Austin
says. "Schedule a face-to-face meeting to
listen and understand the concern before
you respond. Consider the practical and
appropriate options for addressing the
underlying issue and providing a proposed
solution."
PREPARATION IS VITAL

Preparing for discussions that involve conflict is also important. "I will sometimes
36

ENGINEERING INC.

JULY / AUGUST 2018

"Any
disagreement
between
parties to a
contract can
become a
claim, which in
turn can lead
to a dispute."
KEVIN O'BEIRNE
ARCADIS U.S.

draft talking points to help clarify key messages, starting with the most important yet simple message first,"
Austin says. "Details may be important but details
shouldn't overwhelm the message you are trying to
make."
Firms could also ask the project owners for a set of
plans for a similar, previous project that they perceive as
being an appropriate level of quality, to provide guidelines, Bates says.
Ongoing feedback is also important. "Ask for early
feedback from the owners so there's an understanding
of the scope of work and you can catch issues early as
opposed to when you're further along or almost done,"
Bates says.
With an owner-engineer professional services agreement, often the best means of reducing the potential
for an owner claim of deficient design is for the engineer to have appropriate, experienced personnel in
charge of the project and its design; and to expressly
advise the client of risks and uncertainties in the design,
O'Beirne says.
"It's very important for the engineering firm to
ensure that its professional services agreements include
the typical standard of care, [and] to ensure the profes-

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