I will be interested to read responses from insurers, attorneys or anyone actually involved in OSHA that is monitoring this site.
Traditionally, and in accordance with standard construction contract formats (including AIA formats) the contractor is the party in sole charge of the construction site. This includes physical control and security of the site itself, the safety plan to be followed by all persons on the site, safety of materials/equipment and operations of all kinds, etc..
Visitors to a construction site are required to know/understand and comport with the contractor's safety plan. The contractor is responsible to ensure visitors to the site (including Owner, A/E, lender and others) have been informed of what is expected of them (i.e. where they can go or not go, what safety gear is required, the times they can visit, whether they must be escorted, to whom they must report on arrival at the site, and/or any other specific restrictions/instructions). On major projects (and by the way a good idea for ANY project) is that visitors (not a party under direct control of the Contractor) must sign a log sheet when they arrive at a site, and when they leave. That log should contain a recitation that the visitor is aware of the safety requirements that govern their conduct while on site.
While A/E's are presumed to understand the hazards of construction sites (by training and experience), and must conduct themselves accordingly, they are not the ones that formulate the site safety plan. In fact, this would seem to contradict the standard contract provisions, and expose the A/E, the Owner and the contractor to liabilities not anticipated by their respective contracts (or the types of insurance they are required to carry).
If, in fact there is a new OSHA regulation on this issue, I've not read or heard of it. At a minimum I would have expected this to be a major discussion topic among A/E's, since development of regulations is not something that happens overnight. Such a pending regulation should certainly have been a topic of lobbying (with OSHA) and discourse by the AIA (with its members) during the months/years it was being considered for drafting, passage, adoption and implementation. The original post says 'effective January 2014'... that is but two months away.
Even if such a regulation were put in place, one would need a significant lead time before implementation would be realistic. It can take years to incorporate such thinking into contracts for design and those for construction - and the design and construction process itself can take years.
How would one deal with projects that are already in the design process (with a signed contract delineating the Architect's responsibilities)? Would this become an 'additional service' due to a change in government regulations? In such a short time frame, how would A/E's educate themselves on the requirements, estimate the time/effort it will take to comply with the regulations, and negotiate the additional fees with their clients? What kind of consultations will A/E's need to engage in with their attorneys and insurers before launching on this new program?
How would one deal with this on existing construction projects (already under way, with executed contracts assigning sole responsibility for safety to the Contractor)? How will the Contractor react to this intrusion into his territory... and how will the lines of demarcation be determined (as between the A/E and the Contractor)?
Just a few of the many questions that come to mind: To whom would the 'plan' have to be submitted? Who would have to approve it... the CM (as in the original post), the government, the Contractor (since it's his site), someone else? How long will it take to develop a safety plan, get it approved, and incorporate it into the design and construction contracts? Who will be responsible to train the A/E's in the new safety plan? Who will enforce its implementation? Who will monitor compliance/non-compliance? Will there be consequences - and how will they be pursued and enforced on the A/E's? How will this requirement be incorporated into A/E professional liability insurance policies... at what cost... and how long with it take to create a new policy form/amendment/rider to cover the A/E's new liabilities? How will the insurance policies of the A/E and the contractor be 'coordinated' in terms of overlapping of responsibilities for what happens on the construction site - and their respective liabilities in the event of an incident/occurrence?
This is just an off-the-cuff reaction... I'm sure there are numerous other considerations that can be added to this.
If this is 'true', and the AIA has not been in the eye of the storm, someone has really missed the boat!
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Howard Littman AIA
Forensic Architect, Expert Witness
Howard I. Littman, AIA
Agoura Hills CA
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