A Hard Look AT Consulting Engineering CYA Notes And 3 Tips To Avoid Them

I recently discussed the lack of perceived value in the architectural and engineering consulting business (AE) in a previous blog post. The problem statement was: Why are fees and services declining relative to other players in the construction space?

I previously mentioned that our industry’s pivot away from a primary focus on quality deliverables to a primary focus on managing liability has negatively impacted both our culture and our value to our customers and end users.

We have taken to spending too much energy on good lawyering and not enough energy on good engineering. We, as an industry, have moved away from accountability and moved toward managing project liability with legalese. Nowhere is this more pervasive and impactful on project execution than the CYA note.

According to Wikipedia:

“CYA is activity done by an individual to protect himself or herself from possible subsequent criticism, legal penalties, or other repercussions, usually in a work-related or bureaucratic context. It can denote a type of institutional risk-averse mentality which works against accountability and responsibility, often characterized by excessive paperwork and documentation, which can be harmful to the institution's overall effectiveness.”

Hmm, that doesn’t sound like it adds value to our deliverables? So why do CYA notes appear at the bottom of every list of keyed notes on our plans? Because they are a powerful legal and contractual tool that have an array of engineering super powers that can help you in almost any prickly situation, saving you the engineer time and money and deferring responsibility onto the contractor. Win-win!

Consider the following commonplace scenarios that we engineers face daily:

Code analysis:

As a junior associate, you can’t find what code reference specifically governs the particular situation you are designing around. Option 1: Buy the code, learn the code, apply the code, detail the proper methodology on the drawings. Phew… by Friday noon in time to plot? Unlikely! 

As much as you hate to look like you still need hand holding after nineteen and half months of meaningful design experience, clearly fast tracking to your PE license, you decide to break down and go to your engineering manager for some guidance. He looks over your drawing and with the compositorial prowess of the seasoned design professional, scribbles a tersely worded CYA note at the end of your list of keyed notes in red pencil:

Contractor to install per manufacturer’s instructions and per all local, state and federal codes.

That’s right, all of ‘em. My work here is done. He strolls confidently back to his office, making a mental note to note your lack of code knowledge in your next review. Somewhat stunned, you quickly add the note and copy-paste it into your “CYA Notes” CAD file, stored securely on your personal C: drive along with the very best of the reference materials you have collected from the internet. You’ll be plotting by Thursday night!

Field survey omissions:

Later that year, having been given increased responsibilities due to your consistent early completion of deliverables, you are working on a messy retrofit project. Darned existing conditions! As you finalize the routing of rain leader passing through the mechanical room, you can’t tell from the 360 degree photo you captured with your iPhone 12’s HD camera how far off the ground that conduit bank is, and whether you can sneak the sloped drain over them. Quick check of Google reveals no actionable information on the height of said conduit bank. You are gobsmacked that this information is not readily available in the cloud. What to do? You grudgingly concede defeat and visit Gandolf the Grey Haired Piping Designer to see if perhaps he may be able to conjure a measurement from your photo. Without even looking up, he leans across the print you have placed on his desk and, reading and writing upside down, he pens the perfect “get out of field survey free card” note:

Routings shown are diagrammatic in nature and not intended for construction. Contractor is responsible to verify all field conditions at time of bid and for any associated costs associated to provide a 100% complete, operational system.

He writes this UPSIDE DOWN! Truly, he is a wizard. He puts the stub of red pencil back behind his ear and returns sullenly to his digitizer tablet. You are dismissed. Copy. Paste. Your CYA notes file is growing nicely. The PE exam is going to be a breeze!

Vendor equipment data:

Fast forward several years. You have opened your own consulting firm and been awarded a tricky heating system conversion from steam to hot water. You of course indicated demo of the existing steam boilers and replacing with shiny new hot water units. Alas, during final design review the owner’s Facility Manager strolls in and recalls that he specified those units to be convertible from steam to hot water when he selected them 20 years ago and they have been well maintained. He would like to avoid the cost of replacement. Ugh!

You have a deadline to meet so you quickly change the design to show the existing boilers remaining, but you don’t have time to figure out what needs to take place to make the conversion and you are out of billable hours on this job! Google offers some perfunctory information but these particular units appear to pre-date the internet. You were able to leverage previous CYA notes to cover the combustion air system on this project, which was not interlocked with the burner operation. You still have room on the sheet for one more CYA note without having to reformat the text if you are concise. You’ve got this. Your combustion air note reads:

This contractor shall thoroughly evaluate the combustion air system operation and control and determine what is required to bring the boiler room ventilation system into full local, state, and federal code compliance. Contractor shall carry the cost for all repairs and upgrades needed for a fully functional, code compliant combustion air system.

You follow that with a bold stroke, the juices really flowing now, typing:

The boiler is to be retrofitted from steam to hot water operation. This contractor shall thoroughly evaluate the boiler’s suitability for hot water service and identify all repairs and upgrades needed. This contractor shall carry the cost to furnish and install manufacturer’s hot water trim kit, strictly following all manufacturer’s instructions for installation and start up, ensuring 100% fully functional hot water service.

You’ve thoroughly covered it. You think to yourself that you really should have considered a career in the law. The junior staff have gone from glumly texting their roommates that they will be in the office late tonight to cracking celebratory grapefruit seltzer waters while batch plotting the final deliverables.

The estimators curse you. They only had a week to bid the job so they throw an allowance at it. The bid numbers vary by 20%. The owner doesn’t know whether to go with the high or the low or the middle. He feels completely exposed. He is over budget before he even starts the job. One of the more sophisticated bidders suggests that perhaps a design-build, negotiated gross max price contract is better for this project given all of the unknowns. The owner cancels your post design services contract and proceeds with the design build contractor, who does an excellent job and gets the first call the next time they have a project.

These are all actual examples of CYA notes that I have encountered in my career. What are we thinking?

We make construction documents that are the basis of contracts, but they are first and foremost construction documents. They need to define the scope of work in adequate detail to accurately price and later build the project. A bidder having to carry a 5 to 7 percent contingency to cover the exposure created by the CYA notes and lack of detail is not uncommon. Meanwhile our fees often range from 5 to 7 percent of the cost of work! We could be and should be paying for ourselves and generating an ROI on our fee! That is the literal definition of bringing value to your client.

Falling back on CYA notes instead of investing the time to properly finish the design is a short sighted practice that will only lead to the continued devaluing of our services. 

To be viewed and respected as a valuable contributor, and improve your standing in the market relative to your competition, here are 3 immediate and actionable steps you can take:

1)  Implement a “No CYA Notes” policy. This is a very black and white, simple, meaningful step you can take immediately.

2)  Look for “squishy” notes during plan review and hit them with that red pen.

3)  Mentor and instruct and help junior staff to develop that detail. It will have the added benefit of both knowledge transfer and instilling and continually reinforcing a culture of accountability in your organization.

You will immediately see the benefits of this practice during bidding. We often get feedback from contractors about how easy and clear our packages are to price and build. You will establish a level of trust with the contractors you work with that will begin to be reflected in their pricing to your clients.

In the end, contractors make more money when jobs are well defined and easy to build, and they will compete more aggressively for projects that they feel are winners. You will be recommended and sought out for future projects and you will win more work on value instead of cost, and that is a great place to be.