The Impact of Machine Guidance on the Industry

There are numerous reasons to support the growing use of Machine Control or Guidance. Reducing construction activities can result in reducing fuel consumption and related carbon emissions that can negatively affect the planet and contribute to global warming. Reduced construction costs should also trickle down to the public, at least in theory.

So why shouldn't land surveyors embrace this new technology as they have with virtually every other technology that has come along? To insist the Land Surveyor be involved in all aspects of construction stakeout would undoubtedly be viewed as self serving job preservation and rightly so. However, as quickly as the technology has taken off, so have firms that will scan a grading plan, create a digital terrain model (DTM) and upload the file to the contractor's machine, all for $500. Most of these firms do not have a licensed land surveyor or professional engineer on staff nor do they carry professional liability insurance in the event there is an error in the file they created, resulting in a costly construction error. How then has the public been protected? The unwarranted lawsuits that can result will drive insurance premiums upward with the resulting increases being passed along to our clients and the public in general. The professional land surveying and engineering communities need to protect their liability accordingly and should do so by having the proper language in their contracts, specifications and plans.

At the American Council of Engineering Companies (ACEC) 2007 Annual Convention in Washington, D.C. last May, COPS made a presentation aimed at developing suitable language for its members to use to both help avoid costly fees associated with unwarranted lawsuits and to establish the activities and responsibilities of the engineer and land surveyor during construction. The technology is here to stay but currently is ahead of the rules. Working to perfect it rather than against it will result in continued opportunities for the professions as well as protection that the public deserves.

To access the COPS Position Statement and suggested language for plans and contracts on Machine Control, go to the COPS homepage at www.acec.org/coalitions/COPS.

COPS Steering Committee Meeting Highlights

On August 11, 2007, the COPS Steering Committee met at the offices of C. T. Male, in Latham, New York, near Albany. At this meeting, the Committee:

• Established a Legislative Subcommittee to address issues concerning the surveying industry and to coordinate with the ACEC Government Advocacy Committee. COPS members interested in serving on this subcommittee should contact David Bixby at dbixby@acec.org, or phone him at (202) 347-7474, ext. 332.

• Established a Program Subcommittee to develop educational sessions and obtain speakers for presentations at ACEC conferences and other surveyor-related conferences. Contact David Bixby if you are interested in serving on this new subcommittee.

• Provided direction to the Business Practices Subcommittee regarding the development of COPS products. These included a Kick-off Meeting Agenda (currently under development), updating current COPS contracts, an equipment inventory spreadsheet, and a quality control checklist. COPS members are welcome to participate on this subcommittee and the above planned projects. The subcommittee is planning to meet this November, so contact David Bixby if you want to become involved and attend the meeting.

• Agreed to increase efforts to have more ACEC state MOs accept surveying-only firms in order to increase COPS membership.

• Finalized a position statement on Machine Control including suggested language for plans and contracts and agreed to solicit input and feedback from ACEC engineering firms.

North Carolina Limitation of Liability Case

A grading contactor working on a North Carolina housing project entered into a written contract with an engineering/surveying firm to do construction staking. The firm negotiated a limitation of liability clause in their contract with the grader, which was limited to $50,000 or the fee paid. The grader sued for damages alleging that the staking was done wrong, and as a result the grading contractor had to install additional compacted fill exceeding $600,000. The engineering firm offered to pay the grading contractor $50,000, the maximum amount under the clause, but the grading contractor refused. The court ruled that the "risk allocation" clause in the contract was unenforceable and sent the case to the jury, who found against the engineering firm for over $500,000. North Carolina courts have generally endorsed limitations of liability clauses. However, if this verdict is appealed, it will be of interest to surveying firms to see how the appeals court will rule on the issue of whether the state's anti-indemnity statute applies to a design professional's contractual limitation of liability clause. This is being closely watched by professional architect and engineering organizations in North Carolina, who have indicated that they plan to file "friends of the court" briefs in support of a design professional's ability to contractually limit its liability. If the engineering firm appeals and the appeals court upholds the verdict this may have an adverse impact on the North Carolina design professional community.

Wetlands Bill Seeks to Expand Federal Jurisdiction

Legislation has been introduced in Congress that would significantly expand federal regulation of wetlands, setting the stage for a major confrontation that will pit key congressional leaders against numerous business organizations, developers, and property advocates. At issue is a bill introduced by House Transportation & Infrastructure Committee Chairman Jim Oberstar (D-MN) and Energy and Commerce Committee Chairman John Dingell (D-MI) to amend the Clean Water Act and declare all "waters of the United States" subject to federal permitting jurisdiction. The bill, H.R. 2421, would essentially delete the Clean Water Act's requirement that limits federal jurisdiction to "navigable" waters. The outcome of the debate will also determine whether federal agencies, such as the U.S. Army Corps of Engineers or the Environmental Protection Agency, can issue permits for development and water quality, or whether state land use law has precedence. H.R. 2421 was introduced in response to recent developments stemming from a 2001 Supreme Court case, Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers. The landmark case prohibited the Corps from requiring a permit for a manmade wetland isolated from any navigable waters. In a subsequent case last year, Rapanos v. United States, four justices concluded that federal authority over wetlands should extend only to those that are "relatively permanent, standing or continuously flowing" and connected to traditional navigable waters. While the business community has generally concurred with the Court's views, environmental groups charged the decisions have seriously undercut federal protections for wetlands, prompting the introduction of the Oberstar-Dingell legislation. Hearings are expected in the House this Fall, and a Senate version is likely to be introduced by Sen. Russell Feingold (D-WI) when Congress returns in September.

On the Lighter Side

A man is flying in a hot air balloon and realizes he is lost. He reduces height and spots a man down below. He lowers the balloon further and shouts: "Excuse me, can you help me? I promised my friend I would meet him half an hour ago, but I don't know where I am." The man below says: "Yes you're in a hot air balloon, hovering 30 feet above this field between 40 & 41 degrees latitude and 120 and 124 degrees West longitude." "You must be a Surveyor," says the balloonist. "I am" replies the man. "How did you know?"

"Well" says the balloonist, "everything you have told me is technically correct, but it's of absolutely no use to me and I still don't know where I am." The man below says, "You must be a contractor." "Well yes" replies the balloonist, "but how did you know?"

"Well" says the man, "You don't know where you are or where you're going. You've made a promise that you can't keep, but now you expect me to solve your problem. You're in the same position as you were before we met, but now it's my fault."

Remember, your input is always welcome. Please email COPS staff at dbixby@acec.org with your suggestions and comments.