ACPA Concrete Pavement Progress - Winter 2022-23

CONCRETE PAVEMENT PROGRESS 24 WWW.ACPA.ORG LEGAL MATTERS Contact us today! Grandt Mansfield 503-445-2226 | Prior to the start of construction, contractors should ask project owners for copies of such agreements for all of the utilities who may have lines that interfere with construction. Contractors should have these in hand for use at the preconstruction meeting with utility companies. This should enable contractors to not only have more accurate utility information, but also potentially the most effective tool to get utility companies to relocate on a timely basis: the agreement requirement to relocate within a stated period of time and financial consequences for failure to so relocate. (One large contractor has told me that they are now following this approach, and it has been a game changer!). V. What Can be Done When the Utility Information is Inaccurate and/or the Relocation is Untimely. The unfortunate reality is that for the foreseeable future, notwithstanding more proactive efforts as discussed above, contractors will continue to encounter unmarked, mismarked, and late utility relocation. So how do contractors protect against the financial impact of this? Contractors must educate themselves on the whether and to what extent there are contractual and/or regulatory rights which compensate them for these utility problems. I have conducted a nation-wide analysis of such compensation rights. What I have learned is that such rights vary significantly from state to state. (Due to the limited space of this article, I will only address these rights generally, rather than the specific contracts and/or state regulations/ county ordinances.) As a matter of contract: • Some DOT standard specifications expressly provide for compensation for late utility relocation as well as unmarked/ mismarked utilities. • Other such standard specifications, as well standard contracts, provide for compensation only if the owner is negligent. (NOTE: As an example, one way to prove that the owner was NEGLIGENT is through its failure to use the utility/ easement agreement to facilitate timely relocation.) The difficulty for contractors to learn their compensatory rights for utility-related problems is » continued from page 23 complicated by the fact that such rights often exist outside of the contract: • Some utility-related compensation provisions are set forth in state statutes and/or regulations. • Other such provisions are sometimes set forth in county ordinances. What is important to recognize is that rights set forth in statutes, regulations, and/or ordinances have the same practical application as if they were expressly set forth inside of the contract. Given this, contractors should seek out, review, and understand such legal requirements with the same commitment as they do with contracts. The unfortunate reality is that some state laws, as well as contracts, do not compensate contractors under any circumstances for utility-related problems. When this is the case, contractors only remedy is a time extension. And, regardless of whether a contractor may or may not be compensated, contractors should always timely seek a time extension both how and when the contract requires (including keeping track of the amount of delay for which the extension is sought).