DR. ENGLISH: In General Accordance With 

One of the nicer features of GBA’s webinars is the speakers’ willingness to answer questions. An important question came in after the webcast of “Think. Be Accurate.”, a John Bachner-led presentation focusing on commonly used words and phrases that can be dangerous. What follows is an edited version of the Q&A exchanges involved.

Tim wrote:
Good afternoon, John.

We just finished watching “Think. Be Accurate.” at our office and I have a question with regard to one of the phrases you brought up. We often use the phrase “in general accordance with project plans and specifications” in our field reports. We aren’t typically on site full-time and we therefore don’t want to make a guarantee that the work we observed was performed in full accordance with the project plans and specifications. However, it seems reasonable that we ought to tie our observations to the project plans and specifications, because if not, why are we even out there? In your experience, is there a phrase that is more suitable than “in general accordance with”?

Thanks for the lively presentation. I appreciate the ways you push the geo community towards excellence.
– Tim

John’s response…

Thanks for writing, Tim. Here’s how I see it.

If you were on the witness stand and opposing counsel asked, “What exactly does ‘in general accordance with project plans and specifications’ mean?” what would you say? I guess it would have to be along the lines of, “Well, it means we don’t have enough knowledge to know if full compliance was achieved, because we are not on site to look over everyone’s shoulder 24/7.”

Fact is, though, what you do is a far cry from that. You are providing that level of service the owner selected to satisfy the owner’s desire to assess whether or not a constructor is fulfilling its QC obligation to achieve certain specified conditions. I believe “in general accordance with project plans and specifications” creates an unwarranted sense of security and, therefore, is something you should not be saying. And why are you making that assessment when, in reality, it is the client who should draw the conclusions, because the client specified the extent of security it wants?

I believe a better statement might be:

“Our [observation and/or testing], as documented via the daily field reports included in Appendix A, indicate that the specific work portion we [observed and/or tested] met specifications of the contract. Please recognize that construction observation and testing conducted for quality-assurance purposes customarily involves direct observation and/or testing of less than one percent of the overall work that the observation and testing data are applied to evaluate. As such, you must base your conclusions about the overall work’s compliance with specifications on inferences you draw from the data we have developed, in accordance with the scope of service you authorized. If you believe the data we have developed are insufficient, we will be pleased to recommend and conduct additional observation and/or testing.”

Bearing in mind that I am not an attorney, Tim, this may be enough to get the point across. The conclusions to be reached should be reached by the client, not you. You’re there to provide data. The client has restricted the amount of data it wants, based on its own risk/cost evaluation. If you say “general compliance” and it’s not in compliance – general or otherwise – I believe you would be creating a risk for yourself that doesn’t really belong to you.

To which Tim responded…

Thanks for your thoughts on this topic, John, I agree with you that trying to defend that phrase on the witness stand would be uncomfortable, to say the least. Often, both the local municipality and the owner are looking to us for confirmation that the work was completed according to plans and specifications. If we put in too many limiting phrases, it’s likely the municipality would balk and direct us to complete enough field observation to be able to make a conclusive statement. We’ll need to talk about this internally and see how we can more accurately portray our work. Thanks for taking the time to get back to me.

John then offered…

Hi, Tim. Feasibly you could try something like what follows. It’s shorter but still explains the risks involved; i.e., you are doing what doctors do when they obtain informed consent from a patient. Your clients need to know that they DO NOT want you to say anything stronger, because that could make you liable for the contractor’s work, something for which you are not insured.

“Based upon inferences we have drawn from our [observation and/or testing], as documented by the daily field reports included in Appendix A, it is our professional opinion that the constructor is achieving specified conditions. Please recognize that construction observation and testing are sampling functions that involve direct observation and/or testing of less than one percent of the overall work that the observation and testing data are applied to evaluate.”