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Case study: Consulting Engineer (sole proprietor) goes to rehab - what to do?

tomsmith18555

Title pretty much says it all, but have a project in for permit. I learned on the grapevine that the engineer I utilized (1 person shop) has gone to rehab and can't communicate or work for some extended period of time.

I have engineering revisions that need to be made to resubmit. Even if this person gets out tomorrow, I need to part ways. I don't know any details about why they went to rehab or how long whatever is afflicting them has been an issue. In all likelihood it was going on when permit docs were originally produced, but I obviously don't know with any certainty if the docs were produced under the influence of something.

They haven't invoiced yet and I have none of their files except permit PDFs. Engineer was my recommendation, but is not under contract with me (with owner directly).

My gut tells me to advise owner to not pay for any work and we get another engineer to redo everything. What do I point/say when they ask for their money eventually? It seems as simple as "you can't work under the influence, so you can't be paid", but I want to minimize the embarrassment / pounding on the owner's door asking for money.

My goals are:
1. Get revised permit docs that are safe
2. Minimize my embarrassment w/ owner
3. Not pay two engineers for 1 permit set

UGH. Any thoughts on how to to gracefully execute this hatchet job would be appreciated.

 
Dec 2, 19 12:51 pm
Non Sequitur

It is also probably not advisable to forgoe paying the other p.eng since they likely have a contract.  Could be grounds for misconduct on your part regardless of the rehab situation. In the end, this p.eng is retained by the owner.  They need to chase their own consultants.

Dec 2, 19 1:05 pm
tomsmith18555

Agree that decision is owner's (continue with this engineer or refuse payment/find someone else). Probably just need to pull the bandaid off and tell him the situation.

tomsmith18555

Appreciate your thoughts.

Non Sequitur

Did you recommend this p.eng to the client?

tomsmith18555

Yeah

Non Sequitur

then thread lightly

Non Sequitur

...also, it's worth noting that all this is hearsay.  

Dec 2, 19 1:06 pm
tomsmith18555

He's definitely in rehab (he called friend last night from the center while I was sitting there), but I understand what you're saying.

thisisnotmyname

Is there any way you can reach out and see what the engineer's view of the situation is? Does he wish to proceed with the job when he completes his treatment?

gibbost

Agreed. It would be worthwhile to ask how this individual hopes this plays out. Perhaps not their finest hour, they still deserve some dignity in how they move forward. I also think it's worth pointing out that just because they have checked themselves into rehab does not automatically mean the work they did for you was compromised.

tomsmith18555

Completely agree with these thoughts. Unfortunately it seems like direct contact is not an option until he's out, but I do plan to engage him when he's available again. The critical path to re- submission of permit docs has a lot of steps that don't involve him, so there is definitely enough time to spare that this doesn't need to be settled tomorrow (or likely even this month).

Bloopox

The owner needs to pay the original engineer for the work that was performed - it's not an option to withhold payment - unless the original engineer agrees to that.  If the work completed can be shown to be defective or unusable the owner can pursue his costs for having to redo that portion of the work, through legal channels, though the contract may limit what can be recovered (for instance if the contract contained the fairly common clause that the maximum that could be collected from the engineer was the amount that had been paid.)  As for your embarrassment: it might help you to look at this in terms of any other illness: what would have happened if a consultant had a stroke or was in a serious accident? I would frame it in those terms for the owner: unfortunately the consultant has a medical condition that makes him unable to continue on the project at this time, so it will be necessary to engage another engineer.  This unfortunate, unforseeable circumstance may result in some repeating by the new engineer of work that the first engineer did.  

Dec 2, 19 1:30 pm
tomsmith18555

Appreciate your thoughts. So the obligation to prove the completed work does not meet the standard of care is on the owner. I suppose if everything checks out (technically speaking) we're hunky dory, but it seems like throwing darts with your eyes halfway open shouldn't be allowed (even if you hit the board and no one gets their eyes poked out in the process). The state engineer board seems to only addresses fitness to practice with regards to criminal convictions.

tomsmith18555

Again, appreciate your thoughts. I'm thinking outloud here mostly because I'm frustrated.

Bloopox

Establishing that someone's substance abuse makes them unfit for professional practice is very difficult. Your client could report this to the state engineering board, but they'd need clear objective evidence to convince the board that a fitness for duty evaluation was warranted - not just knowledge that the engineer went to rehab. Then the board could require a formal psychological evaluation to assess whether the engineer is unable to safely perform his job. Even if that evaluation found that the engineer is currently unfit and should have their license conditioned or revoked, it can't usually be used to prove retroactively that the engineer was unfit when the work was performed - so again the only thing the owner could really do if the work is actually defective would be to pursue damages through legal channels. If I were you I'd advise the owner to just terminate the contract now, by whatever methods and time frame the contract requires, and hire a new engineer. There's probably a 40% chance the original engineer won't ever invoice for the original work, given the circumstances (he knows that his illness caused the owner inconvenience and additional expense, and he may want to avoid embarrassment and further damage to his reputation). If he does invoice, the owner could attempt to negotiate downward, based on losing time and having to pay another engineer.

tomsmith18555

I have been thinking something similar. Despite all this we have a good rapport and I imagine he'll want to try to make it right (rather than get out and start demanding money). I'm getting worked up by the fact that I just learned all this information, but realistically it could be 6+ weeks before we resubmit the total package for permit. Do you think I have any obligation to tell the owner about any of this or could I touch base with engineer when he's out and level with him about double checking all his calcs, making revisions, etc. and we all just move on with our lives. The fact that I know that he's in this situation is only because of mutual friends -- for all I know every engineer i've ever worked with has similar issues. Again... appreciate your thoughts.

atelier nobody

1. The engineer is owed money for work completed - stiffing him would be a breach of contract.

2. If the engineer's contract obligates him to deliver by a certain date, and he is unable to do so because he is hospitalized, then the owner can terminate the contract, but if there is no such clause in the contract, or if he is out of rehab in time to complete the work, then terminating his contract would be discrimination on the basis of disability, for which both you and the owner would, rightfully, be liable for considerable damages.

Dec 2, 19 1:37 pm
Bench

... Is the prospect of a hired licensed professional operating under the influence not grounds for termination with cause by the owner ?

(Genuinely asking)

Dec 2, 19 2:21 pm
atelier nobody

Possibly, IF the owner has proof that the engineer was actually under the influence while working on the project, as opposed to going home and getting loaded after work, AND that the work itself was, in fact, carried out negligently.

thisisnotmyname

Some design contracts have clauses that allow for termination by the owner if key members of the design team become unavailable to work on the project.

In the OP's situation, the owner should pay the original engineer for the work competed and arrange for another engineer to take over the project.   Ideally, a termination agreement can be developed that would let the owner use the original person's completed work with a new engineer.  The new engineer can do a thorough review of the original work (calculations, drawings, etc.) and move forward from there.   It's going to cost more to the owner, but that's unavoidable in this situation.

Dec 2, 19 3:05 pm

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