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Ernie Edgar

North America

Ernie is General Counsel for Atkins in North America and oversees corporate governance matters as Corporate Secretary and Chief Compliance Officer. In addition to his duties at Atkins, Ernie has served on the Board of Directors for The Infrastructure Security Partnership (TISP) since 2003 and was elected its Chair in 2012. He also serves on the board of the VMI Research Laboratories and as a director of several Atkins subsidiaries. Ernie is a member of the bar in Virginia, the District of Columbia and Florida, and is a registered professional engineer in Virginia.

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Worthwhile pursuits require risk; how you manage that risk is often the difference between success and failure. It’s the defining factor in whether a project is commercially rewarding, unfruitful, or worse, a catastrophe. Delivery models for new projects are changing, shifting the design risk from the owner to the contractor. Better the risk you know, than the risk you don’t; let’s get to know the risks, shall we?

For much of the last century, design-bid-build was the conventional project delivery method. In this model, the owner contracts with the project designer (who creates and delivers the design), and then the owner solicits bids from contractors. The completed design allows the contractor to bid the project at a fixed price thereby providing a measure of certainty in overall project cost and liability.

Today, there is a trend toward new project delivery models; the design/build model is quickly becoming one of the most common. Design/build brings the design and construction of the project under the purview of one contractor. That contractor bids the project based on the conceptual vision of the owner.

This project delivery model is intended to expand project financing, contain project costs, compress project delivery schedules, and reduce project claims and litigation. In the public sector, this approach has given rise to public-private partnerships (P3) which can offer not only turnkey delivery, but also privately-funded project finance, operations, and maintenance to stretch limited tax dollars to meet sophisticated infrastructure needs. These are the benefits, but what are the risks?

In design-bid-build, contractual privity and risk allocation are simple: the designer is only beholden to the owner. If there are design defects because of professional negligence, the owner has a cause of action against the designer, but the Economic Loss Doctrine in most states insulates the designer from collateral claims by other parties such as the contractor.

In contrast, the design/build delivery method makes the designer part of the construction contractor’s team, generally as a subcontractor. The difference is clear. These alternative delivery methods shift the project design risk from the owner to the contractor, and there is a dilution (if not outright transfer) of the owner’s Spearin doctrine risk associated with a finished design.

So, what can you do to limit our risk in this changing environment?

First, you must know the risks. In addition to exposure for professional negligence, the design/build delivery method exposes the designer to certain construction risks, such as the imposition of liquidated damages, not usually part of pure design contracts. The client relationship is profoundly different as well: the design is delivered to the construction contracting team, which is responsible for conveying both the design and the finished project to the owner. Thus, adhering to the ultimate project delivery schedule becomes a very real performance risk for the designer.

Second, you must evaluate the risks—paying close attention to your contract. Contract provisions are particularly vital in ensuring the proper allocation of commercial design risk. Ensure that the contract provides for the right insurance coverage. Confirm appropriate indemnification. In traditional design contracts, there is typically no limitation of liability term; design/build projects may offer limitation of liability to protect the designer from the risks mentioned above.

Third, you must know your insurance carrier and choose the right coverage. In design/build projects, given their size, complexity and associated risk, owners often obtain project-specific professional liability policies to cover design risks. As such, these are independent of a designer’s practice policies. Because of project size and associated risk, they tend to be expensive, so it is essential to the design/build team to price the project-specific professional liability policy and include that cost in its overall bid. Alternatively, the owner can obtain the coverage for the design/build team. In either case, it is essential for the designer to ensure the policy terms adequately cover its design risk.

Fourth, you must utilize technology for accurate modeling. Among the more recent technologies to come into use is Building Information Modeling (BIM). To date, it does not yet define the standard of care, but it is becoming more persuasive as a quality and delivery benchmark.

And finally, you must communicate. Whether aided by project management technology, or through other means, communication is paramount in any design project. Ensure clear standards and procedures that provide for dynamic communication among all parties involved in the project.

Project delivery models are shifting. As the purpose, scope and requirements of the built environment increase in complexity—as pressures to deliver projects as scheduled and on budget are increasingly intense—we need to take a deep look at how these changing models upset the risks involved. In the words of Warren Buffet, “risk comes from not knowing what you’re doing.” A sober understanding
                            of project risks and risk mitigation solutions will go a long way in ensuring commercially rewarding
                            projects in an ever-changing future.

North America,

The fourth goal of the 2020 SAME Strategic Plan is Resilience, which rightly reflects where we—as engineering professionals and as a nation—need to be in this time in our history. Our nation relies on the infrastructure that engineers plan, design and enable every day. This country and our built environment must be resilient in the face of natural and man-made hazards. We all have a stake and a voice in achieving that objective.

Resilience at its most intuitive is the ability to “take a punch” and keep performing to some level. In the built environment of today’s America, infrastructure systems are tied together and interdependent. We have seen the loss or failure of infrastructure systems in one geographic location dramatically affect the economy many states away. To be resilient, we must understand our vulnerabilities, know how these vulnerabilities affect others, then develop solutions to mitigate the impacts when vulnerabilities become failures.

Achieving resilience is a national goal but achievement must begin locally. A disaster event, whether national or man-made, is fundamentally local. It is in the crucible of the disaster that we measure our resilience. How did the infrastructure perform? What failed? How soon can it be back online? To what extent can local residents get back to “normal” and how much help do they need? But the work of building resilience into our infrastructure and ourselves must take place beforehand.

Achieving resilience also must recognize that the overwhelming proportion of our built environment is privately held, which means that solutions are not purely governmental in nature. 

In the aftermath of the September 11, 2001 attacks, SAME helped found The Infrastructure Security Partnership (TISP). Since then, TISP has facilitated dialogue that has led to resilience as a national goal. Specifically, TISP has provided thought leadership that defines our threat in an all-hazards context; pioneered resilience concepts; published two editions of its Regional Disaster Resilience Guide; and provided key inputs to the National Infrastructure Protection Plan. TISP also annually hosts a Critical Infrastructure Symposium (the next being held in April in Charleston, S.C.) that brings together government, industry and academia to advance resilience.

In 2015, TISP was integrated into SAME as a Council. Now SAME, through its Posts, is ideally suited to foster resilience locally and provide real-world feedback to policymakers at the national level to develop proactive solutions for the built environment.

This article was originally published in the January - February 2016 issue of The Military Engineer (TME) and republished with kind permission of the Society of American Military Engineers (SAME). Read the complete issue and 2020 SAME Strategic Plan here.

 

North America,

Established in the immediate aftermath of the September 11 terrorist attacks, The Infrastructure Security Partnership (TISP) is a national partnership between government agencies, professional associations, private industry and individuals with the goal of increasing our infrastructure’s capability of withstand natural and man-made disaster events and maintain critical services.

Since January 2013, I have had the honor to serve as the Partnership’s Chair and I’m finally able to say that the concept of resilience (as advocated by TISP) has become widely accepted as a social and policy goal. We’ve begun moving the discussion from “what is resilience and why do we need it?” to “how do we get there?” Operationalizing resilience—moving it from concept to reality—is our primary focus.

Since our formation, TISP has succeeded with our partners in enhancing America’s national security by incorporating resilience policy. The National Security Strategy, National Infrastructure Protection Plan, Army Corps of Engineers North Atlantic Coastal Comprehensive Study, and the soon to be released National Institute of Standards and Technology National Resilience Framework all reflect TISP’s leadership and substantive input. Through these efforts our nation is growing stronger and more resilient to natural disasters and manmade disruptions, but there is much more work to be done.

All disasters are fundamentally local and need local solutions

Community resilience and sustainability are the linchpin of resilience on a larger scale. The national and regional constructs now need to be applied at the local level—in partnership between government agencies, the private sector and the public. Our efforts to include a local perspective in the latest version of the National Infrastructure Protection Plan was a significant accomplishment. From this healthy start, there are gaps remaining that must be closed.

The National League of Cities recently completed a survey of city elected leaders, city managers, planners, sustainability staff, and other officials and identified the following needs:

  • 44% of respondents indicated a need for assistance conducting a vulnerability assessment
  • 61% need assistance in identifying adaptation and resilience strategies
  • 72% need assistance in modifying outdated policy to include resilience
  • 81% need strategies to implement resilience activities

The challenge is how we will plan and then perform infrastructure design, construction, maintenance and operations in a time of declining resources to achieve resilience. TISP intends to leverage 100+ local posts of the Society of American Military Engineers (SAME) to present programs fostering public-private partnerships at the local level. These local SAME posts provide the framework for programs designed to address the gaps the National League of Cities identified, and to implement solutions such as those we’ve tested in TISP’s Regional Disaster Resilience Guide. The local structure and membership of SAME—combined with the advisory and facilitation role TISP has played nationally—provides a mechanism for local discussions and solutions to bubble up to policy makers across the country.

Future resilience means challenging college students to develop future solutions

We must challenge our students to explore different policies, procedures, designs and materials for the infrastructure of tomorrow. The Collegiate Infrastructure Challenge, which TISP introduced at this year’s Critical Infrastructure Symposium, provides an opportunity for students to engage critically, creatively and completely with a complex infrastructure problem, for which the teams must envision and describe a transformative solution. Five teams representing the Citadel, Virginia Military Institute, the U.S. Naval Academy and John Hopkins University considered the issues of today’s segmented national transportation system and conceived solutions for a future system that effectively and efficiently integrated Aviation, Highway, Maritime, Pipeline, and Railroad transportation systems. We hope to grow the Infrastructure Challenge into a national competition that includes many more colleges competing to develop resilient solutions for the 22nd century infrastructure we need.

Engineers are only part of the solution

As a society, we do not build infrastructure for engineers to use, we build it for society to use. Everyone has an interest and a role to play in the resilience of our infrastructure. By introducing engineering concepts to non-engineering students, our academic institutions can lead the education of our society on these important concepts.

A great example for future progress is found in Clemson University Engineers for Developing Countries—a student-run non-profit organization that has focused its work in post-earthquake rural Haiti. Through small-scale, village-sized projects the students conceive, plan, resource and execute, these young people have delivered water purification and distribution systems to remote rural communities not served by the national government. In the process, they have eliminated cases of water-borne disease from several hundred a year to near zero. One of the keys to their success is that students from all the University’s degree-granting schools participate—not just engineering students. Everyone has a stake and a role to play.

There is a temptation to believe the resilience of our infrastructure is only considered at a national level by seasoned engineering professionals inside our government. And while the government does consider these types of questions, that is not where the solutions will be found. Rather, resilience comes when we are all involved. As Chair of TISP, I ask you to stay engaged in this conversation, and to ask others to join in, as we all work together to decide how we can incorporate resilience into our infrastructure.

North America,