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By: Eric Asquith
It made national news when the Fern Hollow bridge collapsed in Pittsburg, PA on January 28, 2022. Vehicles and a transit bus were on the bridge at the time of the collapse – 10 people were injured. The shocking aftermath of the collapse is seen in the photograph above.
The National Transportation Safety Board (“NTSB”) continues to investigate the failure of the “K-frame” design bridge, consisting of two welded steel girders, welded steel floor beams, and rolled steel stringers. A final report in 2023 will detail NTSB’s investigation and conclusions. NTSB is analyzing the bridge for signs of corrosion, signs of fatigue cracking and other clues that could explain the failure(s) of the bridge. Also being evaluated is the maintenance and rehabilitation history of the bridge, as well as its inspection and load rating history.
In post-collapse statements, Jennifer Homendy, chair of the NTSB, stated that 7.3% of the 618,456 bridges nationally are rated “poor” by NTSB – a very concerning statistic for the infrastructure of the country, as well as safety of its citizens.
Coincidentally, at the time of the bridge collapse in Pittsburgh, President Biden was en route to Pittsburg to promote the $1.2 trillion Infrastructure Investment and Jobs Act (IIJA) and stopped to see the bridge collapse himself. The IIJA was signed into law last November. The infrastructure package includes $550 billion in new investments over five years, including $110 billion for roads, bridges and other infrastructure projects, with $40 billion earmarked specifically for bridge repair and updates.
Construction companies and associated professionals involved in infrastructure creation and repair will benefit from the investments by the government, as it will lead to increased opportunities and jobs in the field. With these opportunities, however, also come various risks and practical considerations. Below are several key issues for consideration.
Some of those injured in the Pittsburgh bridge collapse are pursuing legal claims against public authorities, and public reports indicate that attorneys for the injured parties may add inspectors and construction companies to their list of responsible parties in light of the limited liability of the public entities.
Design and construction professionals, including structural and geotechnical engineers, inspectors and subcontractors who build and provide service to a bridge over its lifespan all could be exposed to liability for their work if infrastructure fails, as happened in Pittsburgh.
As with any project, design and construction professionals should take care to limit their exposure by, among other things, having a clearly defined scope of work, including indemnification provisions in any contract, and ensuring documentation is well kept before and during the life span of the project.
As work on these new projects is commenced, the companies doing the work need to keep in mind that they have adequate general liability insurance (aka CGL insurance), which can cover construction defects and bodily injury and property damage claims. If the professional are design professionals, they should carry architects and engineers professional liability insurance, which can cover flaws and damages resulting from alleged errors in their services. The importance of this is noted through the comments of the attorneys who represent those injured in the Pittsburgh bridge collapse, as those attorneys may make claims against construction companies, architects or engineers who may have previously provided services to the collapsed bridge – such insurance would be applicable in the instance claims are made against them.
The IIJA is supportive of the P3 project delivery method, as P3 is mentioned throughout the IIJA.
P3 is a model that offers public authorities a means to address infrastructure needs without relying strictly on public resources. P3s are partnerships between governments and the private sector to build public infrastructure like roads, hospitals or schools, or to deliver services.
Competing for a P3 project requires a significant upfront investment in at-risk design services, and developers and design-builders seeking to bid on a P3 project should work together to plan for and allocate these costs. If the project is awarded, the parties must also fairly allocate the costs and risks associated with completing the project and performing any ongoing operation and maintenance.
During the pandemic materials costs have increased markedly. The increase in public infrastructure funding through the IIJA may further the cost of materials upward as demand for the materials increases based on the new projects the IIJA presents. Any bids for public infrastructure projects need to account for this probability of a continuing increase in cost of materials, as well as take into account the potential for worsening delays in sourcing and obtaining the needed materials for the projects.
Further, as baby boomers retire out of the construction industry, there is a shortage of talented workers in many construction specialties. There may an increased reliance on younger, and potentially underqualified workers in many projects, which can threaten work quality and safety.
While the IIJA certainly presents much opportunity for the construction industry to participate in and support public infrastructure projects nationally, these opportunities are not without risk and careful consideration needs to be given to bidding, planning, staffing and execution of the projects.
The lawyers in the Construction Practice Group at Freeman, Mathis & Gary LLP are skilled in guiding construction industry clients through these issues. For further information, please contact Eric Asquith at [email protected].