1
Q
Notice to Bidders
Includes …
A
- nature or type of project
- location of project
- type of contract for construction
- bonding requirements
- dates in which to perform work
- terms of payment
- estimated construction cost (some specially exclude this)
- time, manner, and place to submit bids
- location to obtain bid documents
- deposit required on bid documents
- owners right to reject any and all bids
- requirements regarding wage rates
2
Q
Advertisements for Bids - Public Sector
A
- Notice given
- Invitation for bids posted
- All bidders must be treated alike and be afforded an opportunity to bid under the same terms and conditions
- Prequalification may be required
3
Q
Advertisements for Bids - Private Sector
A
- The owner may select a contractor by any means.
- Public advertising is frequently used to obtain the advantages of open and free competition.
- The owner may elect to negotiate a contract with a particular contractor. This is most common in residential construction and in industrial construction involving highly technical work. The contractor would be selected early in the life of the project and then work constructively with the owner, architect, and other design professionals throughout the design phase of the project.
- The most common approach is for the owner to select a few prime contractors who are reputable and capable of doing a good job. This list of contractors is called a select bidders list. These contractors are asked to bid in a process called invitational bidding. This process has the advantage of the competitive market while restricting bids to a select group of contractors.
4
Q
Advantages of design-bid-build process
A
- Owner benefits from competitive marketplace
- Owner has appearance of being impartial
- Process fully embraces the fundamentals of the free market system
- May be only viable method available for some governmental agencies
5
Q
Disadvantages of design-bid-build process
A
- Accurate costs cannot be known until the design is completed
- Bids that exceed the owner’s budget cannot be readily accommodated without jeopardizing the project
- The various parties tend to be adversarial under this process
- Errors or omissions in the design may lead to costly change orders and the opportunity for the contractor to bolster profits after contract award
6
Q
Prequalification
A
- not a common practice
- employed public and private
results in a select bidders list, or short list, which identifies firms that have demonstrated to the owner that they have the necessary abilities to perform the required work
7
Q
Prequalification submittals include:
A
- types of projects successfully completed by the firm
- current work load
- personnel employed by the firm
- experience of the personnel to be assigned to the proposed project
- financial stability of the firm
- other information that the owner may deem germane to the successful completion of the project
8
Q
Plan service centers
A
Source of bidding information that publishes and distributes bulletins on regular basis that describe all projects to be bid on in near future in locality
Provides services during bidding stage - keep copies of bidding documents on file
Can answer: should general contractor bid on project? Which subcontractors and suppliers are bidding?
9
Q
Value Engineering
A
Specific procedure carried out to critically analyze the various aspects of contract documents in relation to the owner’s objectives, to determine if alternative methods or materials might be more appropriate
reviewing the contract documents with the owner’s best interest in mind
10
Q
A value engineering review on a project may result in a variety of changes in the contract documents that may:
A
- reduce costs
- improve or maintain project quality
- decrease duration of construction
11
Q
Value includes elements of
A
- delivered cost of project
- costs of maintaining a completed project
- ease and duration of construction
- probability of disputes or litigation
- various other factors of interest to the owner
12
Q
Value engineering review can be conducted at two phases
A
Design Phase - designer or third party review
Construction Phase - contractor
13
Q
Constructability Review
A
An assessment of the contract documents, prior to the bidding phase, to identify problem areas and suggest improvements
14
Q
Addenda
A
Formal changes or clarifications issued by the owner or owner’s representative to all identified bidders during the bidding period
Issued during the bidding or estimating period
15
Q
Exculpatory provision
A
One party, typically the contractor, is asked to assume liability that would not otherwise be assumed
Typically provisions in which the owner contractually shifts liability or responsibility to the contractor
Valid but often under scrutiny
Courts interpret very narrowly or literally
Strict interpretation can render them ineffective
16
Q
Strict interpretation
A
The court tries to interpret the provision, as much as it can within reason, against the party that seeks protection under the provision or against the party which drafted the provision
17
Q
Torts
A
Disputes that relate to matters not addressed by statutory law or contract obligations
Wrongs committed against others that do not involve contracts
Common-law interpretation is often required
Wrongs of breaches of duty may stem from injuries or damages incurred by one party as a result of the action or inaction of another party who had a duty to prevent the injury or damage
A tortuous act is often one that violates the social norm
Can result from a specific action or can be caused by failure to act
18
Q
For a tort to occur, the following conditions must be met:
A
- One party owes a duty to another party
- That party does not conform (breach in the performance of that party) to the standard.
- The second party is harmed by the act or failure to act.
- There is a clear casual relationship between the act and the harm that results.
Breach of duty. result from failure to act properly in the performance of a specific duty, or failure to act when there is a duty to act. The party to whom a duty is owed must be damaged. Damages may include physical injury, destruction of property, and defamation of character. It just be shown that the damage is a direct consequence of the breach of duty
19
Q
Examples of torts
A
- defamation of character through libel or slander
- unlawful entry onto another’s premises
- unwarranted seizure, alteration, or destruction of another’s property
- unauthorized use of another’s patents, trademarks, or copyrights
- violation of another’s freedoms through nuisance and negligence
- failure to exercise care in the exercise of one’s duty to another
Torts can arise from damage or injury caused by failure to act with the proper standard of care
20
Q
Standard of care
A
Broadly interpreted as conduct that is expected of someone acting in a given capacity
21
Q
Negligence
A
Arises when a legally protected interest is overtly invaded or violated in some way.
The definition of tort is often applied to negligence suits.
22
Q
Attractive nuisance
A
Generally defined as applying when
1. The party controlling a piece of property should know that children are likely to trespass
2. The party should realize that there is an unreasonable risk of death or serious injury on the site
3. The children, because of their age, will probably not recognize the risk involved
4. The party could reduce the risk with a small effort by keeping the children out or by reducing the dangerous condition
23
Q
General Contract Method
Design-Bid-Build
A
Contract drawn up between the owner and a general contractor.
- Owner represented by firm that was responsible for drawing up the contract documents.
- Architectural design firm/engineering firm
- Owner will enter into two separate contracts, one with designer and one with constructor
- Only method that gives the owner a firm idea of the final cost of the total project prior to the construction phase
- Clearly defined roles for each of the contracting parties.
- Owner minimizes the contractual liability for cost overruns and late project delivery.
24
Q
Brokerage
A
When general contractor subcontracts all the work on a project.
Generally not regarded as being beneficial to the owner.
- Many owners place contractual limits on amount of work that can be subcontracted (ex.15-20% must be performed by general contractor’s own workers)
25
When is the general contract form advisable?
- general contractor has unique skills that should reduce the costs of construction to the owner
- only method that gives owner a firm idea of the final cost of the total project prior to the construction phase
- Results in clearly defined roles for each of the contracting parties
- Owner minimizes the contractual liability for cost overruns and late project delivery
26
Contractor skills for general contract method include:
- administration of construction operations
- efficient procurement of materials
- effective management of the workforce
- thorough planning and coordination of the construction process
27
Disadvantages of General Contract Approach
- Owner must be aware that the design-bid-build approach often extends the project duration.
- Owner does not have an agent or "friendly" party involved in the contractual arrangements.
- Can lead to tight bids and small profit margins, create an incentive for general contractors to "beat up" on their subcontractors, cut corners on performance, and look for loopholes in contract that might bolster profits
- nature of contract creates inherent adversarial relationships between different parties
- inherent inflexibility of approach also exposes owner to a greater probability of claims
28
Separate Contracts Method
(Owner as General Contractor)
Multiple Prime Contracts Method
- Arrangement by which the owner lets contracts directly to specialty contractors for the various portions of the work
- individual contractor may subcontract portions of their work
- Owner takes charge of management of project, assuming managerial functions ordinarily performed by general contractor
29
Separate Contracts Method appropriate if:
- Owner has the necessary in-house capabilities to manage a construction project.
- Profit that would have been earned by general contractor is kept by owner
- Option to let a separate contract to a firm to perform the management functions but advisable for owner to retain managerial control or award a general contract.
30
Disadvantages of Separate Contracts Method
- common requirement when permitting is party obtaining permits to have general contractor's license
- Not advisable when many work items are involved
- This method forces the owner to assume a greater risk than is assumed with the general contract method.
- Essentially eliminates the general contractor's profit from the cost of construction to the owner. (Profit earned by general contractor is generally very small - less than 3% - this must be weighed by the owner and one of the reasons why this contracting procedure is not widely used.)
31
When is separate contracts method advisable?
- Availability of a competent construction manager or construction engineer to administer the various contracts.
- If personnel are employed by owner, this method is particularly appropriate on projects where the required specialty work is restricted to a few types of construction.
32
Self-Performance Method
Force Account Work
- no contracts are written for a construction project. The owner's own workers or employees are solely assigned the task of performing the construction work.
- Owner provides necessary materials, labor, equipment, and supervision.
- Owner plays role of manager.
- Designer plays a minor role, with the design function also often being performed in-house.
33
Benefits of Self-Performance Method
- Owner benefits by eliminating the expense of following through with formal contracting procedures
- Time is saved
- Eliminates the profit that would be earned by the general contractor and subcontractors
- a cost reduction can be realized in regard to engineering and inspection
34
When is it advisable for an owner to self-perform work?
When the project is small in scope, simple in character, and ongoing in nature.
- essential owner have within the organization a trained and skilled construction force
- common on maintenance projects
35
Design-Build Method
Design-Construct/Turnkey Construction
Owner lets a single contract for both the design and the construction of a project.
- Utilizes the construction firm's experience in the design phase. As a result, the final project should have a higher degree of constructability
36
Awarding of contracts for Design-Build Method
If scope is reasonably well defined, a competitive approach can be utilized, but the contract is generally then established as a target cost or guaranteed maximum price (GMP) that is not to be exceeded.
Common to be written as a cost plus fixed fee with a GMP
37
Advantages of Design-Build Method
- Since design evolves with constructor input, fewer changes arise during construction due to designer error
- benefits owner in that the potential for the owner being embroiled in disputes arising between the design firm and construction firm are essentially eliminated.
- Can be delivered at the lowest cost
- Can deliver projects in the shortest time (claim 20-30% faster)
38
When is the design-build method advisable?
- Since design and construction functions within one firm, possible for construction to begin before completion of the design for the project (fast-tracking)
- In periods of high inflation, this approach has increased viability
- Particularly attractive when projects are large and technically complex
39
Fast-Tracking
When design and construction overlaps
- Meant to deliver project to owner earlier than would occur if the design had to be complete before the start of construction
- In periods of high inflation, this approach has increased viability
40
Owner's best contribution to the success of a design-build project is to
clearly define the scope of the project prior to entering into a formal design-build contract.
41
Disadvantages of design-build contract
- Fewer checks and balances built into the process
- Less control by the owner
- On public projects, there are laws and regulations that may place serious restrictions on the process
42
Professional Construction Management Method
The owner hires a firm with construction expertise to perform construction management services on the owner's behalf.
The professional construction management firm (CM) is generally hired by the owner before any substantial design work is done and before any construction work has begun. CM may even be instrumental in selecting the design firm.
While design is being developed, CM periodically reviews the project design to see how the cost and time of completion for the project can be reduced.
43
Payment of CM
compensation of CM is arranged between owner and CM.
May be based on flat fee, incentive payment method in which cost savings are shared by owner and CM, or cost plus a percentage fee
CM is working for owner's benefit, representing owner during design and construction phase.
CM hired in part to see that owner actually receives the most economical project that satisfies the owner's needs.
CM often gives owner GMP that project cost will not exceed. An arrangement may be made by which owner and CM share (at predetermined rate) any savings below the stated maximum price
44
Role of CM as owner's agent
- ensure project is delivered to owner according to the plans and specifications.
- CM is not responsible for means and methods of construction
- Does not guarantee construction cost, time, or quality of completed facility
- can let contracts for fast-tracking
- Does not perform any of the construction work with its own forces
- Only a CM that is well trusted should be allowed to self-perform significant portions of the work.
45
When is the construction management method advisable?
- On large or complex projects when construction expertise is needed during the design phase.
- Permits considerable flexibility for changing the project as the design evolves.
- Hospitals often constructed by this method.
- Owner must have confidence in ability and integrity of CM.
- Projects to be delivered quickly (fast-tracking) are good candidates
- Owner must be able to specify and identify the professional qualifications of the ideal party to serve as CM
46
Profession Construction Management Method Fee
Common to be cost plus a fixed fee
- the costs are usually the actual costs of personnel to perform the CM services with a stated multiplier to cover other items such as travel expenses, training, inspections, and so forth
47
Construction Management At Risk (CM at risk)
- establishes CM as independent contractor
- popular in public sector
- as independent, "at-risk"
- responsible to the owner to complete the project by the established substantial completion date and within the agreed budget
- CM must compensate owner when the construction put in place does not satisfy the established standards of performance for the project.
- GC/CM or CM/GC approach
- honesty, integrity, and character are important attributes to communicate to owner
48
CM at risk firm will be responsible for
- hiring all the subcontractors (perhaps prequalified in order to guarantee quality of performance to the owner)
- coordinating all activities involved with completing the project
- CM enters contract prior to design completion
49
CM At Risk fee
- common to be cost plus a fixed fee with a GMP
- fee could also be established as being a stated percentage of the construction costs
- Under this agreement, it is generally assumed that the actual costs will be less than under the GMP
- If the price exceeds the GMP, the CM at risk firm will be required to absorb those costs, unless the scope of the project can be shown to have been changed such that the GMP should be modified.
- Conversely, if actual costs of construction are less than GMP, owner is inclined to keep savings and not share funds with CM (particularly public works projects)
- In private sector, many variations of these arrangements can be found
- Some CM at risk firms give all savings to owner to ensure that the interests of the owner are kept in focus
- accounting books may be given to owner to give assurances
50
Payments
Unit Price Contracts
Payments based on unit prices as bid and the precise measurements of in-place field quantities
Architect/engineer reviews app and verifies measurement of quantities before certificate of payment is issued to owner
51
Payments
Cost-Plus Contracts
Based on actual expenditures made in a project by the contractor
Fully documented expenditures
Contractor reimbursed for direct expenditures plus allowance for profit and overhead
Contract must state the specific nature of all expenditures for which contractor will be reimbursed
52
Common expenditures
- materials costs (both temporary and permanent)
- subcontractor costs
- field labor costs
- owning and operating costs of plant and equipment
- field overhead (project superintendent, field supervisors, clerks, inspectors)
- transportation costs for workers, materials, and equipment
- small tools, fuel, and utilities
- consultants
- miscellaneous expenditures (surety bonds, insurance premiums, taxes, permits, vacation and sick leave allowances, travel to project for home office personnel, pension and retirement allowance)
- excluded: reimbursement for home office personnel
53
Payment
Lump sum
Common for contract to stipulate that before performing the work, the contractor submit a schedule of values or cost breakdown of all work items for which payments will be requested
Schedule of values evaluated for reasonableness
Once negotiated, basis for payment
So only verification needed on each payment is proof work has been performed
54
Project closeout
Contractor must show that the completed project meets the terms of the agreement between the owner and the contractor, demonstrated to the owner as a project nears completion
Primarily focused on ensuring the quality of the completed project
Preparations for closeout should begin at start of construction and continue until project is finally accepted by owner. Advisable for contractor to perform self-inspections of work throughout construction phase
55
Punch list
A list of items that must be corrected before the project is acceptable to the owner
Final punch list is normally developed on a joint job visit conducted by the contractor and the architect/engineer
Items are often of a minor nature
Separates the last periodic payment from the release of the retainage
56
Closeout procedure includes:
- providing the owner with the permanent keys for the locks
- warranty for project
- affidavits that workers, subcontractors, and suppliers have been paid
- lien releases
- prevailing wage certificates
- as-built drawings
- complete submittal file for project
57
Substantial completion
Still some small items of work that require the contractor’s attention
Final play meant excluding retainage may be paid after substantial completion
58
Prompt Pay Act
Requires government make payment to contractor within 30 days of the date of submission of a properly prepared invoice
Federal projects
When not paid, govt obligated to pay interest in amount at rate established by secretary of treasury
Contractor to pay suppliers and subcontractors within 15 days of receiving payment from govt, less allowable retainage
Obligates contractor to pay subcontractors who have satisfactory performances not later than seven days after receipt of payment from govt
59
Retainage
Amount owner typically holds back or retains a portion of the money earned by the contractor as an incentive for the contractor to complete the project properly and promptly
May range from 5-20% (5-10% typical)
Contractor’s net profit is generally 2%
Retainage amounts of 2-3x the estimated cost of addressing the punch list items are considered adequate
60
When is retainage released?
After final acceptance
61
Typical subcontract agreements have provisions that state subcontractors will be paid after
1. Completion of the work
2. Acceptance by the architect/engineer
3. Full payment for the work by the owner
62
Pay-when-paid versus Pay-if-paid
Pay-when-paid provision is intended to delay payments until the owner has paid the general contractor
Pay-if-paid provision is a means by which the general contractor can avoid making any payments to the subcontracts in an owner default
63
Construction contract documents
- construction agreement
- drawings
- general conditions
- supplementary provisions
- technical specifications
- addenda
64
Design ownership
Public - design belongs to owner, as dictated by law
Private - design ownership is established by the contract between the owner and the designer. Usually architects retain work ownership rights if the owner-designer contract does not address this issue.
65
Drawings/Plans
Primary vehicle by which the physical, quantitative, or visual description of the project is conveyed.
Organized in a fashion that follows to some extent the physical sequence in which the construction work will be performed.
66
General/ site section of drawings
Overall information about project
- property lines
- roadways
- access routes
- location of the structure as it relates to the site
- control survey points
67
Project Manual
Consists of the bidding documents, general conditions, supplementary provisions, and the technical specifications
68
General conditions
Boilerplate
Augment the construction contract and outline the rules under which the project will be built. They establish the rights, authority, and obligations of the contracting parties: the owner, the owner’s representative, and the contractor
Standard general conditions preferred as being familiar to all parties, wording is clearly understood, saving time and effort, court-tested
69
Supplementary conditions
Special provisions
Special conditions
More specific for the job being constructed.
Serve the function of amending and augmenting the general conditions and thus tend to be more specific.
70
Specifications
Often used broadly to include all the contract documents, with the exception of the drawings
- invitation to bid
- instructions to bidders
- general conditions
- supplementary conditions
- bid proposal form
- bid bond form
- contract bond form
- list of prevailing wages (may be part of the supplementary conditions)
- noncollusion affidavit
- technical specifications
71
Technical specifications
Needed to cover the qualitative items of a project, info not necessarily shown on drawings
Written descriptions of the quality of the various aspects of the construction project.
72
Technical specs
General format
General
Product or products
Execution
73
Tech specs
General
Stipulates ground rules for the work to be performed and defines the scope of work to be performed within the specification section
74
Tech specs
Product/s
Describes the product or products (materials, equipment, accessories, components, fixtures) and the development and manufacturing process to be used in producing them
75
Tech specs
Execution
Describes the preparation, workmanship, installation, erection, and application procedures to be employed along with quality requirements and performance criteria that must be satisfied.
76
Resolving conflict between/within specs and drawings
1. Between plans and specs, specs will govern.
2. Between plans and specs, conflict will be resolved by the architect.
Contract should clarify how discrepancy should be resolved.
77
Request for Information (RFI)
Outlines question to be clarified by the architect
Contractor to obtain quick clarification on information that is conflicting, ambiguous, or vague
78
Organization of technical specifications
Will be in later portion of specifications binder, last time listed, generally half the book
Follows the general order of the construction process, begin with site-type and end with finish items
79
Construction specifications institute (CSI)
format
- division of bidding and contracts requirements
— prebid information
— instructions to bidders
— information available to bidders
— bid forms
— supplements to bid forms
— agreement forms
— bonds and certificates
— general conditions of the contract
— supplementary conditions
— drawings index
— addenda and modifications
- division 1: general requirements
- division 2: site work
- division 3: concrete
- division 4: masonry
- division 5: metals
- division 6: woods and plastics
- division 7: thermal and moisture protection
- division 8: doors and windows
- division 9: finishes
- division 10: specialties
- division 11: equipment
- division 12: furnishings
- division 13: special construction
- division 14: conveying systems
- division 15: mechanical
- division 16: electrical
80
For a specification to serve its purpose, it must satisfy some basic criteria, including the following:
- technical accuracy and adequacy
- definite and clear stipulations
- fair and equitable requirements
- a format that is easy to use during bidding and construction
- legal enforceability
81
Design Specifications
Material and workmanship specifications, methods and materials specifications, and prescriptive specifications
A particular kind or type of material is to be used, a particular dimension is required, the installation instructions are given, and so forth
Specific method contractor to use
With this spec, desired result may not occur, even though contractor fully complied with the spec
By using this type of spec, the owner warrants by implication that the specs will produce the desired results if they are followed by the contractor. Thus, the contractor is not liable if the desired end result is not obtained. The contractor cannot be held responsible for defects in the drawings and specs.
Owner is responsible for outcome of design specifications when the contractor had complied with those specifications.
82
Performance specification
The results or the performance of the finished product, rather than the specific methods and materials used to construct the product, are specified.
Product satisfies spec as long as it does the job.
Responsibility for design rests with the contractor. End results may be stated in various ways. Contractor responsible for selecting methods and materials. If this selection proves to be inadequate, contractor is liable and work must be redone at contractor’s expense.
This type is strongly preferred by owners because it tries to tap the ingenuity and creative talents of contractors to greatest extent.
83
Performance and Design specifications
The contractor is instructed how to do a task and then told to warrant that the results will be satisfactory
If the contractor follows the procedures as specified, the contractor will not be bound by the performance of the spec. Both portions of the spec cannot be enforced by the owner.
Obviously, the use of this type of spec is to be avoided.
84
Closed specification
Requires a specific item or system.
Purpose is to ensure that only products of a particular type are used.
More frequently found in the private sector because it is in principle not legal in public since closed eliminates need for competition (express inclusion of one item implies the exclusion of all others)
Closed specs give strong advantages to manufacturers who have their products specified.
Since no competition, result is to drive up cost of construction.
A closed spec can be a design or a performance specification.
In public, at least three manufacturers’ models must be named to avoid designation of being closed.
85
Proprietary specification
type of closed specification.
Specifically states what is to be provided without any allowance for alternatives.
Unique type of a design specification.
It is common for a proprietary specification to prescribe the use of a particular model of a particular manufacturer.
86
Multiple Proprietary Specifications
This may be an open or a closed spec.
Design specification.
Models of more than one manufacturer are specified.
If three manufacturers are named, it is common to consider this an open spec. It is still a restrictive specification.
87
Open Specification
Nonrestrictive in that they permit a wide variety of choices.
Public projects should be bid under this type of spec, naming at least three manufacturers.
Products of various manufacturers should be acceptable whether or not they are actually mentioned by name.
This type of spec is desired by owners as it gives contractors the widest opportunity to get the lowest prices for delivering the project.
88
Or equal specifications
Essentially a medication of the proprietary specification in that it is a proprietary spec followed by the words “or equal”.
Should be avoided by spec writers.
The contractor could make a substitution and claim that the substitute is an equal. Resolving the conflict will be difficult.
89
Ways to avoid conflicts for “or equal” specs
- name specific acceptable brands and model numbers and delete words “or equal” (this may be a closed spec)
- name many acceptable brands and models
- let the contractor name an alternate
- request substitutions up to a given time before the bid date
90
Or Approved Equal Specifications
Open specifications in that they give all acceptable products an opportunity to be considered.
The ideal form of this type of spec lists the brands and model numbers of various manufacturers followed by the words “or approved equal”. This places the determination of the acceptability of a substitution directly with the architect or engineer.
Provides the potential for cost savings since free competition is fostered between various manufacturers of products specified.
Architect is liable if a substitute is accepted and later proves to be inadequate. Consequently, architects are reluctant to accept substitutes. The approvals should be screened very carefully.
91
All-inclusive Specifications
92
Reference Specifications
Found in the technical specifications and make items, established tests, or formal procedures a part of the contract documents by reference.
Common to have a specification that will establish the performance of a product as measured by a standard or accepted test procedure. This can be part of a design or performance spec.
This type of spec is generally used to ensure that a product conforms to industry-accepted test criteria.
Reference specs not only specify quality, they can also set up a standard procedure by which the acceptability of the finished product can be determined.
93
Standard Specifications
Entire set of technical specifications that have been developed by an owner
Once developed, such specs can be used for many similar types of projects.
Common to have standard specifications in highway, bridge, and utility construction. The standard specs will apply to the entire industry. They are often adopted by state agencies and are modified only to satisfy unique conditions.
Saves time in spec writing and requires contractors with several projects with the same owner to familiarize themselves with only one set of specifications.
94
Spec writing
Words difficult to interpret
“Any” - will there be a broad interpretation?
“Either” - can the contractor choose?
“And/or” - is there a choice?
“Etc.” - what else is intended?
“Use” - better to provide words “provide and install”
“As shown” - is this really shown? Where is this shown?
“Reasonable time” - better to give specific time allotted
95
Murder/weasel/escape clauses
“To the satisfaction of the architect”
“Where directed by the architect”
“Unless otherwise directed”
“From an approved source”
“At the owner’s discretion”
96
Submittals
Contractor must convey the information of quality if materials and equipment to owner by submitting relevant info for owner’s approval
Information must be sufficiently detailed so that the owner can make an informed decision about adequacy of item in question.
May include cut sheets, working drawings, shop drawings, descriptive data, certificates, methods, calculations, materials samples, test data, schedules, progress photographs, procedural descriptions, and manufacturer’s instructions.
Not generally required for materials that are specially identified in specs. (If one of abetal materials can satisfy or an equal is proposed, submittal required)
97
Shop drawings
Unique type of submittal that requires considerable effort on part of supplier or installation contractor.
Include drawings, diagrams, layouts, schematics, illustrations, graphic presentations, schedules, and other materials that describe specific portions of the work to be performed.
Connecting link between designer’s drawings and construction of the specific facility component.
Shop drawings become extension of the design, but the responsibility for their preparation lies with the supplier or contractor.
Shop drawings needed because designer cannot economically prepare the construction documents with the level of detail that is ultimately required and still allow some flexibility for the contractor.
98
Operating and Maintenance Manuals
Projects that include mechanical equipment usually include a contractual requirement for the contractor to provide operating and maintenance manuals for the equipment.
These materials are for the owner’s benefit during the actual occupancy and use of the facility.
Equipment for which such manuals are required should be clearly noted in the contract documents. The specific info to be included should also be stated.
Include info such as: name and location of manufacturer, manufacturer’s local representative, nearest supplier, and spare parts warehouse, applicable accepted submittal info, recommendations for installation, adjustment, startup, calibration, and troubleshooting procedures, recommendations for lubrication …
99
As-built drawings
An updated set of drawings that show the exact locations of all in-place items, often required by the owner for the contractor to maintain
100
Record set
essentially the set of plans on which the bid was made
Will be useful if litigation occurs. Record set will then be used to compare what was actually constructed with what the contractor originally anticipated.
101
Disputes
Outline the appropriate procedures to follow during disputes
This should be done before starting construction and can be best accomplished through the inclusion of a claims clause
102
Claims clause
Permits the contractor to present disputes to the owner without having to resort to litigation as a first step.
Typically require the contractor to notify the owner of any work items that are in dispute and state that this notification must precede the performance of the disputed work.
Failure to give proper notification is generally construed as a waiver of entitlement to added compensation in disputed items of work.
Establishes a mechanism by which the contractor can request additional compensation.
Notification important as it places both parties on an equal footing in identifying the disputed work. This, both parties can independently monitor the effort required to perform the disputed work.
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Disputes can be resolved by:
- Negotiation
- traditional litigation in court
- arbitration
- mediation
- dispute review boards
- other novel means
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Negotiation
Both parties coming in good faith, recognize common objective and members of same team.
Before tensions flare/come early.
Calmly discuss an issue and listen carefully, good opportunity for satisfactory resolution of matter.
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Litigation
Prudent move in most instances is to obtain legal opinion about an issue in the early stages.
Cost for legal services higher than negotiations and end result left in the hands of the court.
Once lawsuit is filed, communication between disputing parties brought to end with dialogue being confined to lawyers.
Most time-consuming elements consist of interrogatories, depositions, and the reviews of various records and documents.
Very time consuming with resolution of the dispute often occurring long after the project is completed.
Attorney and court fees consume 25-50% or more of claim.
Once matter is decided by the court, the issue is essentially closed. The exception when the case is appealed.
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Notice of Potential Claim
Formal document contractor submits to owner giving the owner fair notice if the claim potential, thereby granting the owner an equal opportunity to acquire relevant information and develop a case.
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Two systems of courts
State system
Federal system
Most claims are resolved in the state system.
Federal if one of contracting parties is federal government or if the disputing parties reside in different states and the amount in dispute exceeds $10,000
Most construction cases are if appealed directly to U.S. claims court or board of contract appeals
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Interrogatories
Questions that one party submits to the opposing party; the opposing party is given a specified time frame in which to respond. As series of these interrogatories may be submitted for responses from various parties.
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Depositions
Questions generally asked in person. One party obtains information about the strength of the opposing party’s position.
A deposition with one individual can take a few minutes to several days.
Parties included party being disposed, legal counsel (representatives of each of the disputing parties), and a court reporter.
Conducted with deposed party under oath.
In essence, pretrial substitute for testimony from witness stand.
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While all of these procedures are taking place, the parties never relinquish the option to resolve the disputes themselves.
Fewer than 5% lawsuits make it to courtroom.
Even after case is started in courtroom, parties may elect to settle the issue on their own.
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Alternative Dispute Resolution (ADR) techniques
Developed to accelerate the resolution process and to keep the legal expenses under control.
Arbitration used most often.
- Partnering
- Mediation
- Arbitration
- disputes review boards
- minitrials
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Partnering
An attempt to change the mind-sets of the parties involved in the construction effort.
A voluntary approach to establishing teamwork among the contracting parties.
Disputes are ideally resolved at the lowest managerial level.
Resolved quickly and without costly claims.
Proponents contend that partnering reduces the exposure of the contracting parties to claims, lowers the risk of cost overruns, and generally improves project performance.
With the improved communications, decisions are made more quickly, and innovations are embraced more than on nonpartnered projects.
Process: invitation to parties, facilitated session consisting of organized workshops attended by key parties, sessions focus on team building, group awareness, and conflict awareness. Sessions led by outside facilitator, gets parties acquainted with one another, developing cooperative structure and commitment toward partnering objective. At end of season, partnering agreement is drafted.
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Partnering Agreement
States the common goals of the participants including communication objectives, the framework for resolving conflict, and the performance objectives (avoid claims, reduce costs, complete on time, eliminate delays, zero injuries, positive public relations, etc.) for the project.
Fundamental to success of partnering is the fair and equitable sharing of risk.
Fundamental to partnering is changing view of the parties involved.
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Key attributes of partnering
Must begin at project start.
Decrease in litigation and the number of unresolved conflicts at project completion.
Trust, commitment, shared vision
Can shorten project time periods and realize savings through value engineering
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Mediation
Nonbinding method of dispute resolution that contains elements of negotiation and arbitration
Procedures followed for mediation are not as formalized as those for arbitration. Mediator is the most popular of the recent ADR methods.
A mediator might be regarded as a third party who tries to force or persuade the disputing parties to agree on an appropriate settlement of an issue. Must have strong skills of negotiation and should be able to grasp the technical aspects of construction disputes.
Often one day and cost limited to mediators fee paid by both parties
If case not resolved and goes to court, information from mediation little value as no records are kept if the summations of the parties or of the comments of the mediator.
Mediator is never asked to formulate an opinion on the proper resolution of the case (as an arbitrator might do)
Mediator has not authority to decide outcome of the dispute.
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Binding arbitration
Disputing parties will agree to adhere to the decision reached
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Arbitration
Arbitrators are knowledgeable about the construction industry, understand the vocabulary, and can readily grasp the nature of a dispute involving technical matters - this is an advantage over litigation
Generally not one-sided decisions since they can visualize points of view and propose a more moderate resolution
Common to use three arbitrators for large disputes
Held at the convenience of the arbitrators
Differs from litigation in that the rules of evidence are eased and the discovery proceedings are not formally defined.
Hearings classified as informal.
Information that might be ruled inadmissible in court may form the basis for the ruling of the arbitrators.
Care law and precedent have little influence on arbitration decisions.
When the arbitration panel rules on a particular dispute, the decision is binding or final. Disputing parties cannot appeal the decision unless they can prove fraud, lack of impartiality, conflict of interest, or bad faith, or show scope of authority of the arbitrators was exceeded.
Unlike litigation, the rationale for an arbitrary decision does not become public record. This aspect of confidentiality appeals to many firms.
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Advantages of arbitration
Less time consuming and less expensive than litigation
Arbitration is generally restricted to disputes between two parties with third parties specifically excluded
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Disputes review boards
Generally consists of three individuals who meet whenever one of the contracting parties on a project desires a hearing on an issue of conflict.
Since board is assembled early in the life of a construction project, disputes can be resolved quickly.
Procedures fairly informal. Board expected to stay informed about construction progress through regular meetings to assure they can grasp of nature of conflicts.
The board will review why disputes presented to it at its regular meetings.
Owner and contractor expected to have representation whenever a dispute is considered. However the board acts alone when deliberations are taking place. Construction progress is expected to continue as board reviews dispute.
Board is expected to prepare a set of recommendations for each dispute it reviews. Ideally, decisions unanimous.
Contractor and owner have period of time to review decision for acceptance or rejection. Can be appealed or purse other resolution methods.
Not binding.
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Minitrial
Private litigation
Some features of court room but involves less than a full-blown courtroom procedure.
No current model by which all minitrials are conducted.
Not commonly addressed in construction contracts.
Paramount objective should be to resolve the dispute quickly and at minimal cost.
A major decision if it will be binding.
Parties may ask a judge to provide a summary statement regarding the judgment.
A court reporter may record the proceedings, and these can be utilized in a court of law if a resolution is not accepted by both parties.
With successful minitrial procedures, the parties will be able to put the dispute behind them within three days, and the results are confidential.
Legal costs lower than litigation.
Minitrials may be agreed upon after the parties have unsuccessfully negotiated a settlement, after an arbitration decision that was not binding, or even after unsuccessful mediation.
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Construction operations can begin when …
The construction contract has been signed or the notice to proceed has been given to the contractor
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Executed Contract
When both parties to the agreement have fully performed in accordance with the contract’s terms
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“Execute a contract”
Used to mean that the contract has been signed, with the parties then being bound by it
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Executory Contract
When some portion of the agreement remains to be done.
It may be executory on the part of both parties, ir it may be executory on the part of only one party.
A construction contract is still executory if the owners has not paid for the work.
A contract is entirely executory on the part of both parties is easier to cancel than is one in which one or both of the parties have performed at least a portion of their obligations.
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Bilateral contract
An agreement created by mutual promises made by the contracting parties
Each party plays two roles: promiser and promisee.
Promises are exchanged.
Most construction contracts.
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Unilateral contract
One-sided contract in that only one of the contracting parties makes a promise, while the other party exchanges something other than a promise, most commonly some stated performance.
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Express contract
One in which the terms of the agreement, whether verbal or written, are clear, concise, explicit, and definite.
Most construction contracts are express.
Virtually all written agreements could be classified as being express.
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Implied Contract
One in which the terms of the agreement are not clearly stated, but are established through inference and deduction.
The terms of the contract must be implied from the actions of the contracting parties.
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Joint Agreement
One in which the individuals are “joined” in a legal and liability sense, as one party in the action. They are united and undivided and will be treated as such.
If one party is released from an obligation, this has the effect of releasing all the other persons as well.
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Several, separate, or severed
Each party has a liability that is separate from that of the other parties
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Joint and several
Binding individuals as a unit (joint) and also of having each individual accept separate (several) accountability
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Contracts contain certain criteria
Offer and acceptance
Meeting of the minds
Consideration
Lawful subject matter
Competent parties
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Offer
Considered to be made when one person signifies to another person a willingness to enter into a binding contract on certain specified terms.
This party (offerer) confers on the second party (offeree) the power to create a binding contract by accepting the stated terms.
Bud submitted to the owner.
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Acceptance
Creates the contract, provided that it is made in the manner and at the time specified in the offer
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Counteroffer
Once a party has made a counteroffer, the acceptance of the original offer is no longer possible without the specific approval of the person who originally made the offer.
Thus, a party who rejects an offer and counters with a different offer cannot unilaterally accept the original offer if the counteroffer is rejected.
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Meeting of the minds
The contracting parties agree on the basic meaning and legal implications of the contract.
Considered to be underlying purpose of contract.
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Unreality of consent
Circumstances can be such that it is not known until after a formal contract is made that there was in fact no meeting of the minds.
Provides cause for nullifying a contract.
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Mistakes of fact
- unilateral mistake or mutual error (unintentional)
- the parties do not have the same perception of the identity of the subject of the agreement.
- the subject of the agreement does not exist as a result of death, destruction by fire, etc.
- misrepresentation (innocent misrepresentation of fact)
- fraud (false representation of fact with intent to deceive)
- fraud (deliberate failure to provide relevant information that is vital to an agreement)
- duress (threats forcing consent to an agreement)
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Consideration
Primary reason if main cause for a person to enter a contract.
Something of value received by one of the parties in exchange for another item or action that is of value.
Not regarded as consideration unless it is so regarded by both parties. Both parties to a contract must obtain consideration or the contract is not valid.
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Lawful subject matter
Subject must be definite and clearly defined.
Subject matter cannot violate any fundamental dictates of common law.
Subject cannot be contrary to public policy.
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Estoppel
Principle by which a contract becomes binding in spite of the fact that no formal agreement was made between the parties concerned.
Essentially the result of a court action asserting that an agreement or contract exists, based largely on the behavior or actions of the parties involved.
This matter arises when there is an implied agreement.
A contract may be created by what a party does or says, without a written document, and that party is then “estopped” from denying that a contract exists.
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Assignment
Refers to transfer.
In contracts, assignment occurs when one party to an agreement transfers the rights or obligations of the agreement to another party who was not involved in the agreement, but became involved only after the assignment was made.
Normally it is possible to transfer such rights or obligations to another party. However, this may be expressly prohibited by the terms of the agreement.
Most construction contracts, unless expressly prohibited, are assignable.
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Sovereign immunity
The government entity cannot be sued without its consent.
Applies to both federal and state governments.
As a general rule, when there is a clear contract involving a governmental entity, courts have been reluctant to permit the public agency to claim sovereign immunity.
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Real property / real estate
Land and any attachments
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Lien
Legal claim placed on property.
Gives party filing the lien the right to retain possession of the property until a debt payable is satisfied.
Potential buyers are very reluctant to purchase land that has a lien on it.
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Tax lien
The right of the government to retain possession of property until the tax on it has been paid.
If the tax is not paid when the land is sold, the lien transfers with the land title to the new owner.
Payment of tax debt will remove the lien.
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Eminent Domain
Right if the federal government or a state or other public agency to take possession of private property and appropriate it for public use.
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Safeguards regarding the exercise of eminent domain
- property can be taken only by due process of law. Landowner must be given proper notice about government’s intentions and landowner must have opportunity if make a case against seizure of property
- landowner must receive fair compensation for land that is seized. Quantification of fair value must often be determined through judicial proceedings.
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Condemnation
Exercise of eminent domain.
Can be justified if public is served.
Some private entities occasionally been given power when general public’s best interests were being served
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Highway property can be obtained from private landowners by several means, including the following:
1. Outright or direct purchase (mutual agreement)
2. Eminent domain or condemnation proceedings (hostile acquisition)
3. Prescription (hostile acquisition). Acquisition of property that has been used by public for prescribed time.
4. Dedication (mutual agreement). Granting by the owner of the use of private property for the public at large.
With dedication, the land remains under the ownership of the private citizen - no transfer of land title.
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Right-of-way
Tract of land, usually consisting of a series of connected parcels of property, that is used for the operation of a highway or public entity.
All parcels must be adjacent and that no gaps may exist in the tract.
Right-of-way priority is owned by either public or private firms. The most common means of obtaining such property is through the outright purchase arrangement.
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Zoning
Division of real property, especially in larger cities, into classifications of use.
Each area of the city will have a particular designation regarding the use of the property or land within it.
Restrictions can be placed and use made of the land will also be noted.
Essentially the master plan of a city to regulate the use of the land in each area or community.
Used to ensure an orderly development of the community and maintain the quality of life (health and welfare) for a city’s inhabitants.
Zoning requirements place restrictions on the use of the property (limited property rights.)
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Mechanic’s lien
Right created by law that permits workers and materials suppliers who provide improvements to real property, to place a claim on that land if they are not paid.
Lien is similar to mortgage in that attached to land.
Purpose of law is to permit a claim or lien to be placed on premises when a benefit has been received by the owner and the value or condition of the property had been increased by labor and materials that have not been paid for.
Lien laws were enacted to prevent unjust enrichment of the rendering of service without pay.
Provide protection to all parties who directly improve real estate, including workers, materials suppliers, subcontractors, and general contractors.
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Foreclosure
Sale of property to obtain recovery.
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Notice to owner
Official document that puts the owner in notice that a lien can be filed if a particular party is not paid
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Potential release of lien
Document that clearly states that a potential lien is no longer a viable threat. Document from subcontractors and supplies that informs the owner of the extent to which payments have been made to them by the general contractor.
Assures the owner that at least the stated payments have been made and that lien rights for that portion of the work are officially released.
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Stop notice
Permits a worker, materials supplier, or subcontractor to notify the owner when the general contractor has failed to make payments for labor and/or materials. Upon receipt of this notice, the owner will make no further payments to the general contractor until the claimant has been paid.
Essentially, this is a method by which unpaid parties in the construction process can put a lien on public funds due the general contractor.
Lien rights rarely given on public works projects. Public property is usually not subject to lien.
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Process of obtaining and releasing lien rights
1. Sub/supplier supplies material and/or labor for the project.
2. Sub/supplier issues Notice To Owner (lien rights are secured for party improving property)
3. Owner pays general contractor for labor and materials
3.5 Lien processing begins if payment is not received by sub/supplier
4. General contractor pays for materials and/or labor.
5. Sub/supplier signs waiver of liens (owner is released from the fear of a lien for specific materials or labor)
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Primary criticisms of lien laws
- are complex (formal procedures within specified time limits)
- inconsistent between states
- no guarantee of payment and are often worthless.
- filing a lien is a severe means of collection if the debt is small
- among owners, a strong criticism is that payment may be made twice for the same work (first, to the contractor who did not pay a subcontractor or worker and second, to satisfy the claim filed by an unpaid subcontractor or worker)
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How can mechanic’s liens be avoided or their impact minimized?
1. Owners can post notice on nonresponsibility within a specified time after the improvements on a property have been made.
2. A no lien contract, in which the contractor agrees not to assert a lien, can be drawn up between the owner and the contractor in some states.
3. Owner can require the contractor to furnish an affidavit that all bills released to a project have been paid.
4. Owner can demand to see receipts …
5. Owner can required GC to pay subs and suppliers before owner makes any payments. …
6. Owner can write joint checks to general contractor and subcontractor and suppliers do they have to endorse the checks in order to get paid.
7. Owner can delay making final payment to GC until time of filing mechanic’a lien passes (“lean” period)
8. Owner can keep reasonable retainage of contractors payments. Fairly common practice. Only enough for small claims usually.
9. Owner can require a payment bond from GC. Strong assurance no liens will be filed.
10. Obtain services of competent, reputable, and trustworthy contractor.
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Proprietorships
Firms owned by an individual.
Structure up to owner.
No for la documents are required to establish a business of this type.
Can be discontinued at will at any time.
Owner receives profits as if firm and individual were the same (same in eyes of law)
Owner pays income tax on the company profits as personal income.
All tax and other liabilities incurred by the company are the responsibility
of the owner.
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Partnerships
Association of two of more persons to carry on a business.
Profits divided among partners in some way.
Pays no income tax.
Not considered a separate legal entity apart from individual owners.
Cannot file suit in own own name.
Cannot own real property in its own name.
Each partner is an agent for the other partners.
Partners are liable for any debts created by partners when acting for the partnership.
Partners remain as individuals under the law.
LARE Section 1
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