| Date of Decision: June 22, 2004
IN THE MATTER OF the Engineering, Geological and Geophysical
Professions Act
- and -
IN THE MATTER OF the conduct of Stewart Weir & Co.,
regarding services provided to The Town of Peace River.
CASE MANAGER Robert Swift, P.Eng.
PERMIT HOLDER Stewart Weir & Co. Ltd.
BACKGROUND
During the course of an investigation conducted by APEGGA's
Investigative Committee into the conduct of Stewart Weir & Co.
Ltd., concerning services provided to The Town of Peace River,
Stewart Weir & Co. Ltd., freely and voluntarily admitted
and agreed with the attached facts and findings presented
by the Investigative Committee.
Since Stewart Weir & Co. Ltd. has admitted to conduct
that constitutes unprofessional conduct, there is no need
to refer the matter to the Discipline Committee for a formal
hearing. In accordance with Section 52 of the Engineering,
Geological and Geophysical Professions Act, APEGGA's Investigative
Committee is recommending the attached orders that it considers
appropriate.
As the case manager designated by the Discipline Committee
to review the matter, I agree with those orders. During my
discussion of the orders with Mr. Pearse, responsible member
and contact for Stewart Weir & Co. Ltd. he confirmed
that he, also, agrees with the orders.
Therefore, in accordance with Section 52 of the Engineering,
Geological and Geophysical Professions Act, the orders have
the same force and effect as if they had been made by the
Discipline Committee following a formal hearing.
Dated this 22nd day of June, 2004 at Edmonton, Alberta.
_____________________________
Robert Swift, P.Eng.
Case Manager, Discipline Committee
STIPULATED ORDER
TAKE NOTICE that the Investigative Committee of The Association of Professional
Engineers, Geologists and Geophysicists of Alberta has concluded an investigation
into the conduct with respect to services provided relating to municipal
projects for the Town of Peace River.
AS A RESULT of its investigation and based on the evidence
and information that has come to the attention of the Investigative
Committee, the Investigative Committee proposes the following
findings:
I AGREED STATEMENT OF FACTS
1. At all material times Stewart Weir & Co. Ltd. (“Stewart
Weir”) was a permit holder registered in good standing
with APEGGA.
2. In April or May 2002 the Town of Peace River (“Peace
River”) issued requests for proposals for engineering
services (“RFP’s”) for about five engineering
projects. The RFP’s asked for “Total Engineering
Upset Fees for completion of the Project.”
3. Stewart Weir responded to three of the RFP’s, including “Main
Street Rehabilitation” and “102 Street Upgrade”.
Included in the proposals are the following:
•
“After having carefully reviewed the Terms of Reference
for the project and discussed the scope of work with Town officials,
we are confident that Stewart, Weir & Co. Ltd. has the
qualified personnel, training and resources to ensure that
the project is completed on time and within budget”.
•
“Stewart Weir & Co. Ltd. will provide inspection
services as required.”
•
[Main Street Rehabilitation] “Fees for Inspection Services “have
been based on an assumed construction period of 20 working
days at 10 hours per day. Should the actual scope of work
be expanded or reduced at the request of the client, the
costs will be adjusted accordingly.”
•
[102 Street Upgrade] “Fees for Inspection Services “have
been based on an assumed construction period of 15 working
days at 10 hours per day. Should the actual scope of work
be expanded or reduced at the request of the client, the
costs will be adjusted accordingly.”
4. In June 2002 Peace River awarded Stewart Weir the Main
Street Rehabilitation and the 102 Street Upgrade. The two
projects became “Part A” and “Part B” respectively
of an agreement for engineering services which provided that
the “total amount payable under this agreement shall
not exceed $67,540.00".
5. Stewart Weir completed the design and tendered the combined
project in August 2002. One bid was received, $1.601M, $0.434M
above Stewart Weir’s estimate of $1.167M. After negotiations
Peace River awarded the construction contract for Part A
in 2002 and postponed Part B to 2003.
6. In October 2002, based on the contractor’s construction
schedule for Part A, Stewart Weir requested additional fees
of $24,750 to cover inspection time in excess of that covered
by the proposal “fee estimate” (additional 30
days, approximately).
7. Peace River expressed displeasure with this request but
granted it saying:
“
Under no circumstances is the additional resident engineering
to exceed $24,750 for this project, including the surface
improvements to be undertaken in 2003.”
Peace River’s letter did not state whether “this
project” referred to Part A only; or to the entire
contract, Part A plus Part B.
8. Part B was re-tendered in March 2003, and the construction
contract was awarded to the same contractor. A construction
schedule was submitted at the end of May.
9. On 4 June Stewart Weir requested additional fees of $27,400
for Part B: $3,000 to cover adjusting the tender documents
and drawings, advertising, tendering, and recommendation,
and $24,400 to cover “unanticipated construction inspection” based
on the construction schedule. On 12 June it reiterated the
request. There was no favourable response. On 1 July Stewart
Weir wrote to Peace River “we feel that we are not
in the position to bear the financial burden of providing
inspection services for a duration of construction beyond
our control and outside the scope of our approved fees”,
and advised that without a fee increase to cover the ongoing
cost of inspection, Stewart Weir would provide inspection
services “until July 16 in order to give the Town adequate
time to retain another consultant”.
10. Stewart Weir left the construction site on 16 July and
handed over relevant contract documentation to the Town of
Peace River. At that time, construction was not complete.
Stewart Weir continued to maintain some contact with the
contractor and the project, providing design clarifications
as needed.
11. On 18 July Stewart Weir proposed arbitration to Peace
River as a way to resolve the impasse. In the arbitration
proposal Stewart Weir offered to resume inspection duties
following the decision, regardless of outcome.
12. On 30 July 2003 Peace River laid a complaint with APEGGA
alleging that Stewart Weir was guilty of unprofessional and
unethical conduct.
13. On 18 August Peace River rejected Stewart Weir’s
arbitration proposal.
14. It is acknowledged that Stewart Weir was cordial and
businesslike throughout its dealings with Peace River, and
terminated its project inspection services only after repeated
attempts to re-negotiate its contract and only after reasonable
notice.
II FINDINGS
1. The conduct of Stewart Weir & Co. Ltd. constitutes
unprofessional conduct and a violation of APEGGA Code of
Ethics Rule of Conduct #3 in that Stewart Weir & Co.
Ltd. prematurely terminated its resident engineering services
and left the project site, notwithstanding the assurances
it had given in its proposal and the further fact that it
had agreed to complete the projects under an “upset
fee” style of contract.
III ORDERS
1. Stewart Weir & Co. Ltd. be reprimanded.
This decision is published in accordance with an APEGGA
Council
policy that requires publication in The PEGG of
all discipline
decisions.
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