How it may affect the profession. Part 3

Parts 1 and 2 of this series were previously published in the May and July issues of STRUCTURE. Part 1
provided a general overview of how climate change could impact an engineer’s services; Part 2 looked at the engineer’s professional standard of care. This final article looks at contractual provisions that could help to protect engineers against allegations that they failed to address climate change in their designs.

How it may affect the Profession. Part 2

Flooding, heat waves, rising sea levels, and the associated news about these effects of climate change are enough to make anyone feel hopeless about what can be done. The National Oceanic and Atmospheric Administration (NOAA) estimates that Americans experienced twenty separate multi-billion-dollar weather and climate disasters in 2021 alone, costing $145 billion. Last year, Hurricane Ian—estimated to be the costliest Florida storm since Hurricane Andrew—had storm surge losses estimated to cost between $28 and $47 billion. One industry, however, is poised to make a profound positive impact in the face of this dire news: engineers. Engineers have the knowledge and the skillset to reduce the risk that their projects will face climate-change-related risks if they incorporate the three basic steps below into their project work.

Each year, American construction workers sustain approximately two hundred thousand injuries that are serious enough to cost them at least one day of work. This number leads all fields of endeavor, representing almost ten percent of all workplace injuries. In examining these accidents and their frequency, most studies look to the mechanism of the occurrence, most prominently the fatal four: falls from heights, strikes from objects, being crushed between objects, and electrical shocks. Combined, these types of accidents cause six of every ten fatal construction workplace accidents. Less frequently considered are the materials involved in construction accidents.

Occasions may arise where parties collaborate on a project involving proprietary or otherwise sensitive information. To prevent that information from being misused, shared, and/or publicized, the parties often enter into a non-disclosure agreement (NDA). However, breaching an NDA can have serious consequences, even in cases of accidental misuse or disclosure. Below are some basic steps you can take to protect yourself and your company if you are working within the confines of an NDA. 

While previous articles in STRUCTURE have looked at specific contract provisions – for example, the Waiver of Consequential Damages in the November 2021 issue – this article discusses contracts in general.

While a waiver of consequential damages clause is considered a contractual risk management tool, how these provisions manage risk is not always clear. One reason is that potential consequential damages for one or both parties can vary from virtually nothing to many times the contract amount, depending on the project. Engineers often ask whether they should agree to waive their consequential damages, and likewise, whether they should require the other party to waive their consequential damages. The answer, as is common in contract negotiations, is “it depends.”

Although most engineers in the U.S. have at least a passing acquaintance with American Institute of Architects (AIA) documents, few seem familiar with FIDIC documents. Because FIDIC documents are often used on construction projects where the participants are from different countries, engineers pursuing international projects would do well to learn about them.