Legal and Business for CMMS-Ready Facilities
McKew pointed out the benefits of computerized O&M management from the perspective of efficiency and performance as follows: Why not deliver the "keys" to the smooth, efficient, and economical O&M of a facility in the best possible form? Why not take advantage of the staff's ability to use computers and combine it with the readily available hardware and software to allow them to do a better job? Inertia is the main obstacle to this change.
There certainly is comfort in tradition. From the perspective of avoiding criticism and risk, the simple approach is to maintain the status quo. This is often perceived as a safe strategy. At times, however, the status quo becomes inadequate. Either the reasons for the long-standing practice or the anticipated results are inferior to alternatives.
At such a point, the business marketplace begins to favor change. The competitive costs of maintaining the status quo exceed the benefits of such an approach. The bottom line? Informed purchasers want products, services, and facilities that deliver superior results for lower costs. Delivering a shelf full of three-ring O&M manuals upon completion of a multimillion dollar construction project relinquishes its "state-of-the-art" status. Informed purchasers will start to demand, and eventually expect, a higher-performance product. The market will demand that projects be delivered CMMS-ready.
There are legal implications when the status quo is maintained past its prime. This article explores some of the legal, as well as business, implications of maintaining a three-ring binder mentality when delivering a new facility. It describes the potential liability inherent in a reactive management model. The article also analyzes the benefits and potential risks of delivering a CMMS-ready project that includes the current hardware, software, training, and documentation. Such an "integrated team" approach requires an understanding of all segments of a facility's infrastructure and coordination of these disparate pieces, from the earliest design stages to the final implementation stages, into a holistic program. An integrated team approach to O&M is not new (see the DOE's website at www.eere.energy.gov/buildings/operate/operate.cfm).
What is new is the concept of integrating a CMMS-ready approach into the design and construction phase of a major construction project, so that the owners and managers are up and running with an operational team when the project is delivered. What is unclear is when the CMMS-ready approach will become a mandatory "state-of-the-art" practice.
A Facility Manager's Legal DutyIn general, a facility manager's legal duty is easy to describe but difficult to define. The law requires a facility manager to take the actions that would be taken by a reasonable facility manager under the circumstances. Failure to take reasonable actions results in potential liability.
In addition to the general duty of reasonableness, the facility manager has specifically defined duties. For example, as the new owner of HVAC equipment, the facility manager must comply with the manufacturer's warranty service requirements or bear the consequences of voiding the warranty and shouldering the related repair or replacement expenses.
Additionally, there are regulatory compliance examples of a facility manager's specific duty. Elevators, laboratories, and fire/safety equipment have specific and well-defined inspection and maintenance routines. Beyond the many examples of well-defined duties, there exists a sea of gray-area duties that defy precise description.
For example, facility managers and building owners are required to provide building occupants with a "reasonably safe environment." The operational meaning of a reasonably safe environment is incapable of a precise definition. Instead, in recognition of the many variables that comprise such a reasonably safe environment, the facility manager is allowed to operate within a range of reasonable behavior, without risk of liability. As the applicable variables and state-of-the-art change, this "range of reasonableness" shifts to require either more or less vigilance.
Legal and Business Implications of the Traditional O&M ApproachThe general contractor's duty to provide documentation is defined in the contract. In the traditional paper approach to facility O&M, the contractor delivers an impressive appearing library of detailed documentation. Assuming that paper documentation is all the contract requires, this is a legally "safe" approach. The traditional approach delegates the responsibility to read, understand, and implement the documentation's directives to the owner and manager.
How can the owner or facility manager complain when the answer to an obscure problem was "right there" in the three-ring binder? This seems like a safe and fair approach for all involved, but does it make sense in today's business environment? The contractor is obligated to locate, assemble, and deliver all of the necessary documentation, which then becomes the manager and owner's responsibility to implement.
In fact, this approach works quite well for simple, stable facilities with well-trained staff and without significant personnel turnover. For most of the world, however, such an approach is quickly becoming inadequate. If the expertise of the general contractor, subcontractors, and consultants working on the project were tapped, integrated, and delivered in advance, the owner would reap substantial benefits that are now lost.
Legal Inadequacies of Traditional Paper DocumentationThere is nothing inherently wrong with, or legally deficient in, the traditional O&M documentation. There are, however, weaknesses in this approach, including a false sense of security. For example, a construction contract typically requires that the O&M documentation be tailored to include references applicable only to the particular equipment installed. In reality, references to products that were not actually incorporated into the facility are included because of convenience, expedience, or inadvertence. The inclusion of documentation for a series of controllers, for example, leaves it up to the facility management staff to determine the appropriate reference to use. Such an approach invites error by requiring owners and managers to make unnecessary decisions and potential mistakes.
If such a mistake results in harm to a building occupant by, for example, supplying less than adequate fresh air, the owner, facility manager, and, possibly, the general contractor would be held liable. A properly designed CMMS-ready project would eliminate this danger.
Contaminated IAQ: Legal Case StudyLawsuits based on allegations of poor building services are common occurrences. They typically arise when individual building occupants or a group of occupants contend that their health complaints are related to poor IAQ at work. Although these cases are difficult to prove, they are dangerous and difficult to defend, particularly if many people are making similar claims. Consequently, proactive steps to monitor and maintain the indoor environment, combined with legally sufficient documentation, provide excellent evidence with which to protect against and counter such claims. Most IAQ problems can be detected and corrected with a properly designed IAQ PM program. The types of contaminants that have been shown to constitute IAQ problems are illustrated in Figure 1.
The dangers inherent in a reactive O&M strategy become apparent when a hypothetical personal injury lawsuit involving allegations of poor IAQ is analyzed. The owner of a high-rise commercial office building was in the traditional paper O&M mode. After a tenant's employees made a series of complaints about allergic-type symptoms, including eye irritation and headaches, a thorough environmental investigation was performed. No culprits were found.
The tenant, in the normal course of business, moved its department to a new building and the complaints continued. Nevertheless, one of the tenant's employees claimed that he was injured and suffered permanent partial disability as a result of being exposed to less than adequate air while in the building. Although environmental testing identified no hazardous contaminants, an investigation disclosed that the fresh air intake had been closed to conserve energy. This practice was not part of any documented O&M procedure and was contrary to good building operation.
The failure was not detected previously, however, because the building was operated in a reactive maintenance mode in which repairs were triggered by a complaint, not a schedule. The deviation from the building's own documented O&M approach prevented summary judgment and the actual case on which this example is based was not dismissed until after a jury trial.
This case study is an example of the consequences of the laissez faire approach to O&M that is encouraged by manual documentation. Any facility manager who relies only on manuals, checklists, and memory will inevitably deviate from the facility manual's own directives. Manual approaches to maintenance are analogous to paper calendars in the world of personal digital assistants and shared electronic calendars.
Legal and Business Implications of CMMS-Ready FacilitiesOne of the adages that applies in any case of potential legal liability is the instruction a referee gives boxers before every match: "protect yourself at all times." As potential legal liability has infiltrated virtually every aspect of facility O&M, new claims appear to develop out of nowhere. Even when facility owners and managers take their responsibilities seriously and perform the necessary steps to, for example, provide good IAQ, adequate documentation is necessary to defend even a frivolous claim. The CMMS-ready approach allows owners the chance to defend themselves more effectively.
First, the automated system and its requirements are developed for a specific building with a particular budget in mind. Thus, there should be no discrepancy between a facility's policies and its practices. Rather than depending upon reams of manuals to define the owner's standard of care in a series of isolated matters (e.g., pest management, laboratory safety, security), an automated holistic approach consolidates responsibility and resources, schedules, actions, and establishes an enhanced level of legal protection.
By utilizing the experience of its team of design, engineering, and construction consultants, the owner can develop a CMMS program that defines exactly what needs to be done, when, and by whom. Danger does lurk, however, in the potential for an owner or facility manager to fail to comply with its own standard of care. That is, once a decision has been made to perform a particular task according to a particular schedule, that work must be done. If not, any harm resulting from the failure bestows virtually certain liability.
Nevertheless, the opportunity exists to modify the plan's schedule and to document the reasons for the modification in a manner that would justify later scrutiny. Unlike paper documentation, a CMMS approach can provide for reminders and follow-up. Finally, a CMMS system can assist in the generation of the contemporaneous documentation necessary to prove that the appropriate steps were taken in a timely fashion. In this way, a CMMS-ready approach that has been properly designed can provide facility owners and managers with the tools they need not only to run facilities, but to protect themselves from legal liability.
A CMMS approach also allows owners and managers to coordinate and link all of the various players who participate in the complex process of running a facility. Such an approach anticipates the numerous contingencies that might arise and provides specific direction with respect to the steps that need to be taken in response, particularly in times of crises, such as responding to a chemical spill. Executing a clear well-developed response strategy is crucial in reducing liability.
Lessons From EPA's ‘Tools for Schools'Although it does not advocate for automation, the EPA's "Tools for Schools" O&M directives contain excellent examples of the benefits that a CMMS-ready approach could bring to a facility. The EPA states, "Substandard maintenance or incorrect operation of building systems usually results from a combination of factors. First, maintenance budgets are often the first to be reduced or eliminated when money becomes tight. Second, designers and contractors typically provide the building staff minimal or no training on how to operate or maintain the building systems. Finally, schools eventually lose their institutional knowledge of the building systems because of staff turnover and lack of communication" (www.epa.gov/iaq/schooldesign/o&m.html).
Rather than suggesting a CMMS approach, the EPA recommends that the facility manager "ensure that the maintenance staff has proper operation and maintenance manuals." But, as illustrated below, the EPA's three key factors that result in substandard maintenance and operation are much more readily addressed with a CMMS approach.
Consider the following scenario. After the maintenance budget is cut and money becomes tight, PM is reduced and the facility becomes less acceptable to its users. Whether the resulting state of affairs falls below a legally "reasonably" standard is totally dependent upon the facts of the situation. In the reactive mode, "panic" decisions can easily be made without performing the necessary analysis and documentation to justify the steps taken. This analysis and documentation gap makes decisions less legally defensible. When asked at a deposition why particular PM tasks were no longer performed, a facility manager might have to say, "Because we reduced staff." This is not a good legal defense!
Consider the CMMS-ready approach. The appropriate experts, such as engineers and legal consultants, are asked how best to reduce the O&M budget. Some fact-finding and analysis, readily made possible because of the data generated, are performed and a new O&M plan is developed and documented. Such an approach could allow the facility manager to testify that: "Our experts studied the needs of the facility and determined that the discontinued tasks were no longer necessary as their contribution was not significant to the facility's performance." With an automated, integrated, and more holistic approach, an O&M program can be better coordinated to respond to changes in the operating budget. The result is a program that is readily defensible if questioned in a lawsuit at a later date.
The second factor the EPA links to substandard maintenance is the tendency of designers and contractors to provide the building staff with inadequate training about how to maintain and operate the building systems. This is an area that is readily improved with a CMMS approach. Step-by-step instruction and visual aids can be developed and made readily accessible to everyone who needs them. Additionally, these training tools can be updated as equipment, schedules, budgets, and other items change.
Staff turnover, the EPA's third factor in poor maintenance, also becomes less of a problem because new workers can be more readily trained by reviewing the CMMS directives than by reading three-ring binders.
Closing Tip and ConclusionAutomated systems can also improve one of the key, and often overlooked, components of a facility manager's work to reduce liability. That is, enhancing the building occupants' perception of management's actions as responsive and caring. Physicians have learned that poor communication, as well as poor medical practice, triggers malpractice lawsuits. A patient who believes that he or she was ignored or disrespected is more likely to make a claim. Building occupants' complaints present the opportunity to communicate either competence and caring or incompetence and indifference. Although automating the process of handling complaints does not ensure positive results, by enhancing a timely response, such an approach provides the perception that caring attention is being given.
There are both business and legal reasons to move toward the implementation of the CMMS-ready approach in facility construction projects. Although the traditional paper documentation approach is still common practice, it does not take advantage of the opportunities presented by planning for readily available automation. By using the construction professionals' tremendous wealth of knowledge and by integrating this knowledge into a holistic, self-executing, automated O&M system, the building's performance and legal protection are enhanced. Facility managers and owners who utilize a well-designed CMMS-ready system gain a competitive advantage and reduce their legal liability. ES