WWW.ACPA.ORG 23 Winter // 2022–23 Unmarked, Mismarked, and Late Utility Relocation: Strategic and Legal Considerations By Thomas R. Olson I. Introduction Death, Taxes, and Utility Issues, these three things are guaranteed in the life of every contractor. For the over 30 years our firm has focused on highway-heavy construction, utility issues remain the single most common issue we deal with on a yearly basis. The most frustrating part of this for contractors is the fact that the cause of the issue, the utility company, is not a party to the contract, and it can feel impossible to hold them accountable. This article gives suggestions to contractors for both working with project owners to identify utility issues at the front-end, and pursuing costs when issues do arise. As always, any legal principles are not advice, and you should consult with an attorney to determine the specific requirements in your specific situation. II. Utility-Related Problems Plague Paving Contractors. The impact in dollars and delay from utilityrelated problems cannot be over-stated. A 2009 Second Strategic Highway Research Program (SHRP2) report, Encouraging Innovation in Locating and Characterizing Underground Utilities, stated that “the untimely discovery of an unknown underground utility needing relocation is one of the major causes of delay during highway renewal projects and, as such, one of the major contributors to traffic disruptions and budget overruns.”1 The impact is similarly significant from a safety standpoint: Striking a utility line occurs nearly every minute somewhere in the United States. Although most utility strikes result in minimal local damage, many others result in fatalities, injuries, significant collateral damage, or all of these.2 How many times have you had a project delayed due to a utility relocation delaying your work? How many times has the dirt-work been unable to proceed pushing your paving into an undesirable season? III. Utility-Related Problems are Going to Continue Unless and Until Owners Make Changes in How They Obtain Utility Information. Based on my experience throughout the country of over thirty-five years in highway-heavy construction, owners seek to determine the existence and location of utility lines by examining the information which utility companies provide (i.e. the Design One-Call System). The problem with this approach is that utility companies neither have accurate nor complete information. I learned that firsthand when I successfully sued CenturyLink for providing inaccurate information on a project. In shocking sworn testimony, CenturyLink stated the following about the accuracy and reliability of its information3: • “The actual location [of a utility] could vary by plus or minus 1,000 feet in any direction of where it was actually installed versus where it was recorded internally by CenturyLink to have been installed…And that would have been the horizontal location…We do not capture the elevation.” • “[The utility] may actually show up on the wrong side of the road…You’d be lucky to get the right side of the road.” • The records are “incomplete” and include “inaccuracies.” • In fact, “it’s very common, standard that those [CenturyLink] maps are not accurate.” The maps “aren’t accurate. . . Not accurate to the point that you would use them for design purposes.” With this in mind, is it any wonder how rampant the issue is? IV. What Can be Done to Minimize these UtilityRelated Problems. The simplest means for owners to minimize utility-related problems is to stop relying upon utility companies to provide accurate and complete information. As discussed above, utility companies DO NOT HAVE ACCURATE UTILITY INFORMATION. Their X and Y information (i.e. horizontal location) is inaccurate. And, shockingly, UTILITIES DO NOT HAVE THE Z INFORMATION (i.e. vertical location)! So, what can and should owners do to minimize this problem? There are two answers. First, owners should conduct their own subgrade utility investigation (aka Subgrade Utility Engineering, otherwise known as “SUE”) to determine both the horizontal and vertical location of utilities. Since owners are already paying for this prior to the start of excavation (i.e. potholing), there is no reason not to pay for this prior to the start of design. The return on investment is much greater. With accurate information, owners can design around existing utilities and, where not possible, timely plan for utility relocation.4 Second, both owners and contractors should use the utility/easement agreements which were executed when the utility companies first placed their lines. Owners should use these agreements at the design phase for two reasons. Based on my experience, these agreements contain more accurate X and Y information than what the utility companies have. Further, many of these agreements set forth important obligations. • Some require the utility companies to relocate their utilities within a stated period of time after being requested by the owner. • Some even require the utility companies to pay for extra construction costs incurred if they fail to relocate on a timely basis! continues on page 24 » L E G A L M A T T E R S
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