Challenges and Opportunities for Innovation in the Public Works ...

LEGAL IMPEDIMENTS TO INNOVATION
IN REBUILDING AMERICA'S CRUMBLING INFRASTRUCTURE
CHARLES F. SEEMANN, JR., PARTNER
DEUTSCH, KERRIGAN & STILES
The United States faces a crisis, as its aging infrastructure, serving well beyond
its life expectancy, deteriorates to failure. Much of the infrastructure is over a
century old--bridges, water and sewerage systems and the like; it is a tribute to
American technical prowess of the last century that the infrastructure continues to
function at all, much less provide major service. Pause a moment to recall that the
now moribund infrastructure was, at its creation, a triumph of American innovation.
America needs a resurgence of that innovation now to solve the
infrastructure problems that threaten significant economic and personal dislocation.
Unhappily, there are impediments to such innovation; this paper dwells on some of
those created by the interrelation of the law with engineering and the practical process
of construction.
A. Historical Perspective
Most modern construction contracting, particularly public works,
is an arrangement of three parties: the Owner, the Designer and the Builder (or
Contractor).' Typically the Owner contracts with a Designer to provide plans and
specifications that detail the finished project; and the Owner contracts separately with
the Contractor to build precisely what those plans and specifications detail. The roles
of Designer and Builder are not inherently separate, but they are today by contract
usually deliberately discreet. The Designer provides the design and inspects the
project periodically to confirm that the work generally conforms to his design; he
eschews control of, or responsibility for, the means, methods, techniques and sequences
of construction, for job-site safety on the project site, and generally for the specific
Each of these entities is, in practice, usually a team, or chain of other entities. For
example, the lead Designer who contracts with the Owner, e..g., architect for a
building, usually subcontracts for required specialty design, such as soils, mechanical
and electrical work. Similarly, the prime Builder will subcontract discreet parts of the
work to subcontractors. The Owner's interest may likewise be divided among several
parties, including lessors/lessees and lenders. For simplicity, this discussion uses the
singular to refer to the three major, or lead, performers; but, in general, the notions
expressed here frequently are relevant to the other actors.
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