The RE's duties were to represent the Contracting Officer in the job site and to exercise the authority delegated to him by the Contracting Officer. In the discharge of his duties, the RE was subject to the direction of the Contracting Officer and his staff, from whom he received both written and verbal instructions. He was required to comply, and did comply, with these instructions.
The RE was responsible for ensuring that construction contractors complied with the regulations of the Safety Manual at each job site. Although the primary responsibility for safety rested in the construction contractor, the RE had a variety of tools for persuading the contractors to correct safety violations. Normally when a safety violation was detected, the RE simply brought the matter to the attention of the contractor and recommended a course of action. However, if the contractor failed to promptly correct the safety violation the RE could stop isolated work activities or remove specific equipment from service. If a threat of immediate danger to human life presented itself, the RE could shut down the entire job site.
Although the RE was authorized to direct correction of safety violations, in practice he rarely took any major action without first consulting WMATA. The RE often looked to the WMATA Safety Engineer for guidance when a serious safety problem arose on the job site. Moreover, a job site was rarely shut down for a safety violation without prior approval of the Contracting Officer.
Thus, it appears to the Court that WMATA exercised sufficient control over Bechtel's performance of its safety duties to establish the agency relationship contemplated by the contract.
B. WMATA's Position
Although WMATA was late in joining this litigation,
it has taken the position that Bechtel acted as its agent with respect to safety matters. At the May 17-18 hearing, counsel for WMATA stated WMATA's position as follows: "the Bechtel resident engineer for safety has a limited agency relationship to WMATA." (Tr. 8). Later in the hearing, WMATA's counsel stated that "WMATA does not dispute that Bechtel acts as agent for safety on the construction of the WMATA subway system." (Tr. 275). Indeed, WMATA could hardly have taken any other position, since it permitted Bechtel's resident engineers to carry business cards identifying them as "Authorized Representative[s] of the Contracting Officer", thereby cloaking them with the appearance of agents.
Our review of the terms of the WMATA-Bechtel contract convinces us that the parties intended to establish an agency relationship. Under the contract, Bechtel was to perform its safety duties on behalf of WMATA and subject to WMATA's control. Moreover, in practice WMATA exercised a considerable measure of control over Bechtel's safety operations. Furthermore, WMATA has taken the position that Bechtel acted as its agent on safety matters. Therefore, we conclude that Bechtel, as an agent
of WMATA, may properly assert Section 80 as a bar to this action.
Accordingly, it is this 21st day of July, 1982
ORDERED that the motion of defendants Bechtel Associates Professional Corporation, D.C., and Bechtel Civil and Minerals, Inc. for summary judgment is hereby GRANTED, and that judgment be entered in favor of them in this action.