Common Sense Construction Law by Thomas J Kelleher Jr and G Scott Walters

Common Sense Construction Practical Guide for the Construction Professional

Common Sense Construction Law A Practical Guide for the Construction Professional by Thomas J Kelleher Jr and G Scott Walters

Contents of Common Sense Construction Law

  • Legal Context of Construction
  • Introduction
  • Contract Law
  • Breach of Contract
  • Implied Contract Obligations
  • Evolution of Construction Law
  • Torts
  • Intentional Torts
  • Negligence
  • Strict Liability
  • Statutory and Regulatory Laws Affecting Construction
  • Points to Remember
  • Alternative Contracting Methods
  • Traditional Approach to Construction: Advantages and
  • Disadvantages
  • Multiprime Contracting and Fast-Tracking
  • Construction Management
  • Agency Construction Management
  • Program Management
  • Construction ManagerGeneral Contractor
  • Design-Build Contracting: What Works to Avoid Disputes
  • The Design-Builder’s Perspective
  • The Owner’s Viewpoint
  • The Successful Design-Build Project
  • Design Professional Liability Issues in
  • a Design-Build Project
  • CONTENTS
  • Design-Build Aspects of Traditional Construction
  • Performance Specifi cations
  • Shop Drawings
  • Secondary Design Review
  • The Interpretations Clause
  • Identifi cation of Patent Defects
  • Compliance with Permits, Codes, and Regulations
  • Contractor Liability Issues
  • Engineer-Procure-Construct
  • Limitations of Liability
  • Liquidated Damages
  • Private Public Partnerships
  • Points to Remember
  • Preparing to Work in a New State: Preproposal and
  • Performance Considerations
  • Qualifying to Do Business
  • I State Registration Requirements: Bonds to Secure
  • Payment of Taxes
  • State Licensing and Qualifi cations
  • Public Construction Awards
  • State Statutes and Policies Affecting Contract Terms and
  • Conditions
  • Subcontractor General Contractor Relationships
  • Contract Award Preference Regulations
  • Public Policy Limitations on Contract Clauses
  • Impact of New Legislation
  • Preservation of LienBond Rights
  • Preconstruction Knowledge of Lien Law Peculiarities Is Essential
  • Lien Law Protections and Procedures Vary Greatly from
  • State to State
  • “Almost Right” Is Almost Always Not Good Enough
  • A Valid Claim of Lien Does Not Guarantee Payment
  • Arm Yourself Early with Accurate
  • Lien Law Information
  • Risk Assessment Checklists
  • Information Sources
  • Points to Remember
  • Competing for the Contract
  • Introduction: Sealed Bids to Negotiated Best-Value Awards
  • I General Considerations in Bids for Public Contracts
  • The Responsible Bidder
  • The Responsive Bidder
  • The “Lowest And Best” Bidder
  • Negotiated “Best Value” Selection Process
  • Electronic Bids
  • Reverse Auctions
  • General Considerations When Competing on Private Contracts
  • Effect of Past Performance Evaluations on Award Process
  • Past Performance Evaluation Procedures
  • Challenges to Past Performance Evaluations
  • Contractor Bid Mistakes
  • Elements for Relief from Bid Mistake
  • Owner’s Duty If Bid Mistake Is Suspected
  • Withdrawal versus Reformation of Bid Mistake Bid Protests
  • Protests on Federal Government Contracts
  • Protests before or after Receipt of Bids or Offers
  • Protests to the Contracting Agency
  • Protests to the Comptroller General
  • Bid Protests in Court
  • Bid Protests on State and Local Public Contracts
  • Bid Bonds
  • “Bid Shopping”: What Is the Obligation of the Prime Contractor to the Subcontractor Submitting the Lowest Price?
  • Holding SubcontractorsVendors to Their Bids
  • Promissory Estoppel
  • Elements of Promissory Estoppel
  • Statute of Frauds Issues
  • I Damages
  • Points to Remember
  • Intepreting the Contract
  • The Importance of Contract Interpretation
  • I What Is a “Contract”?
  • The Goal of Contract Interpretation
  • Defining Contract Terms
  • Terms Defined by the Parties
  • Technical Terms
  • Generally Accepted Defi nitions
  • Interpreting the Contract’s Wording
  • The Contract Must Be Considered as a Whole
  • Specific Terms versus General Terms
  • Handwritten, Typed, and Preprinted Terms
  • Order-of-Precedence Clause
  • The Facts and Circumstances Surrounding Contract Formation
  • Discussions and Conduct
  • The Parties’ Prior Dealings
  • Industry Custom and Usage
  • Limitations on the Use of Facts and Circumstances
  • Surrounding the Contract
  • Resolving Ambiguities
  • Construing the Contract against the Drafter
  • Duty to Request Clarifi cation
  • Implied Contractual Obligations
  • Duty of Good Faith and Fair Dealing
  • Duty to Cooperate
  • Warranty of Plans and Specification
  • The Spear in Doctrine
  • Contractual Obligations Arising by Operation of Law
  • Points to Remember
  • The Uniform Commercial Code and the
  • Construction Industry
  • The Uniform Commercial Code
  • I Applicability of the UCC to Construction
  • Determining When Article Applies
  • Modifying UCC Obligations
  • Contract Formation under the UCC
  • Agreement on All Terms and Conditions Is Not Required
  • Methods of Acceptance
  • Requirement for a Written Contract
  • Withdrawal of an Offer
  • Filling Gaps in Essential Contract Terms
  • Risk of Loss
  • Inspection, Acceptance, Rejection, and Revocation of Acceptance
  • Inspection of Goods
  • Rejection of Goods
  • Acceptance and Notice of Breach
  • Seller’s Right to Cure
  • Revocation of Acceptance in Whole or in Part
  • Warranties under the UCC
  • Warranty Disclaimers
  • Warranty Limitations
  • Statute of Limitations and Commencement of the Warranty Period
  • Performance Issues
  • Anticipatory Repudiation Adequate Assurance of Performance
  • Dealing with the Other Party’s Insolvency
  • Excuse of Performance by Failure of Presupposed
  • Conditions
  • Buyer’s Remedies
  • Seller’s Remedies
  • Points to Remember
  • Authority And Responsibility of the Design Offi cial
  • Overview
  • I Standard of Care and Professional Responsibility
  • Authority of the Design Professional
  • Actual Authority
  • Implied Authority
  • Apparent Authority
  • Ratifi cation of the Design Professional’s Authority
  • Supervisory and Administrative Functions of the Design
  • Professional
  • Interpretation of the Plans and Specifications
  • Review and Approval of Shop Drawings and
  • Submittals
  • Inspections and Testing
  • Issuance of Certificates of Progress or Certificates of
  • Completion and Certificates for Payment
  • Resolution of Disputes between the Owner and the Contractor
  • Other Duties of the Design Professional
  • The Design Professional’s Liability to the Contractor
  • Negligence and the “Economic Loss Rule”
  • Intentional Torts
  • Third-Party Beneficiary Theory
  • Professional Liability Coverage
  • Statutes of Repose
  • Effects of Contractual Limitations on Design
  • Professional Liability
  • Assumption of Design Liability by the Contractor
  • Recent Standard-Form Contract Efforts Regarding Shared
  • Responsibility and Risk
  • The Design Professional’s Copyright for Design Documents
  • Points to Remember
  • Subcontract Administration and Dispute Avoidance
  • Dispute Avoidance Begins at the Bidding Stage
  • The Importance of the Low Price
  • Know the Other Parties
  • Problem Areas in Subcontract Bidding
  • I Preparation of the Subcontract Agreement
  • “Flow-Down” Obligations
  • Scope of the Work
  • Payment Obligations
  • Subcontractor Termination
  • No Damages for Delay, Except as Paid by the Owner
  • Changes
  • Subcontractor’s Indemnifi cation of the Contractor
  • Labor Affi liation
  • Disputes Procedures
  • J. Federal Government Projects
  • Should Subcontractors Be Bonded?
  • Dispute Avoidance by Diligent Project Administration
  • General Contractor’s Duty to Coordinate the Work
  • Implied Duty to Cooperate
  • Implied Duty to Coordinate
  • Limitation of Liability
  • Pay Applications and Partial Lien Waivers
  • Prime Contractor Financing of Subcontractors
  • Remedies for Defective Performance
  • Remedies for Delayed Performance
  • Relationship between Subcontractor and the Owner: Can the Prime Contractor Assert the Subcontractor’s Rights against the Owner?
  • J. Prime Must Be Liable to the Subcontractor for the
  • Pass-Through Claim: The Severin Doctrine
  • K. States Have Adopted the Severin Doctrine
  • L. Conclusion
  • Points to Remember
  • Contract Changes
  • What Is a Changes Clause?
  • I Recovery under the Changes Clause
  • Is There a Change to the Contract Work?
  • Deductive Changes
  • Who Is Authorized to Order Changes?
  • Implied Authority
  • Apparent Authority
  • Alternatives to Demonstrating Authority
  • Written Documentation of Changes
  • Written Directives
  • Requirements for Written Notice of a Change
  • Constructive Changes
  • Informal Extra Work Directives
  • Defective Plans and Specifi cations
  • Misinterpretation of Plans and Specifi cations by the Owner
  • Acceleration
  • Cardinal Changes
  • The Impact of Numerous Changes on Unchanged Work
  • ImpossibilityImpracticability
  • Points to Remember
  • Differing Site Conditions
  • “Differing Site Condition” Defi ned
  • I Responsibility for Differing Site Conditions
  • Standard Differing Site Conditions Clauses
  • Federal Government Contracts
  • Consensus DOCS
  • Other Standard Forms
  • Types of Conditions Covered
  • Type I and Type II Changed Conditions
  • Notice Requirements
  • Operation of the Differing Site Conditions Clause
  • Recovery for a Type I Changed Condition
  • Recovery for a Type II Changed Condition
  • Stumbling Blocks to Recovery
  • Site Investigations
  • Exculpatory Clauses
  • Notice Requirements
  • Relief in the Absence of a Contract Provision
  • Misrepresentation
  • Duty to Disclose
  • Breach of Implied Warranty
  • Mutual Mistake
  • Points to Remember
  • Schedules, Delays, and Acceleration
  • Developments in Contractual Risk Allocation
  • “Time Is of the Essence” Clause
  • Contract Commencement and Completion Dates
  • Substantial Completion and Final Completion
  • Typical Contract Time and Scheduling Clauses
  • I Use of Schedules In Project Management
  • Types of Delays
  • Excusable Delays versus Nonexcusable Delays
  • Excusable Delays
  • Compensable Excusable Delays
  • Nonexcusable Delays
  • Typical Causes of Excusable Compensable Delay
  • Defective Drawings or Specifi cations
  • Failure to Provide Access and Improper
  • Site Preparation
  • Failure to Supply Materials or Labor
  • Failure to Provide PlansApprove Shop Drawings
  • Failure to Coordinate Prime Contractors
  • Failure to Give Timely Orders for Work
  • Failure to Make Timely Payments to Contractors
  • Failure to Inspect
  • Suspensions
  • J. Excessive Change Orders
  • K. Failure to Accept Completed Work
  • CONTENTS
  • Concurrent Delay
  • Traditional View: No Recovery by Either Party
  • Modern Trend: Apportionment of Delay Damages
  • Noncompensable Excusable Delays
  • Weather
  • Acts of God
  • Labor Problems
  • Acceleration
  • Directed Acceleration
  • Constructive Acceleration
  • VContractual Limitations to Recovery
  • Requirement for Written Notice
  • No-Damages-for-Delay Clauses
  • Trade-to-Trade Clauses
  • Delay Claims and the Use of CPM Schedules
  • Delay Claims Supporting Documentation
  • Points to Remember
  • Inspection, Acceptance, Warranties, and Commissioning
  • Inspection
  • Introduction
  • Standard Inspection Clauses
  • Safety-Related Inspection Obligations
  • Costs of Inspection
  • The Owner’s Right to Inspect
  • Rejection and Correction
  • Limitation on Owner’s Inspections
  • Inspection by the Design Professional or Inspector
  • Inspection by the Contractor
  • I Acceptance
  • Overview
  • Types of Acceptance: Formal versus Constructive
  • Authority as an Element of Constructive Acceptance
  • Limitations on the Finality of Acceptance
  • Contract Provisions Related to the Finality of Acceptance
  • Substantial Completion
  • Final Completion
  • Revocation of Acceptance
  • Contractual Warranties
  • Express Warranties
  • Implied Warranties
  • Statutory Warranties
  • Project Commissioning and Post-acceptance
  • Facility Operations
  • Commissioning Programs
  • Bonding Considerations
  • Points to Remember
  • Management Techniques to Limit Risks and
  • Avoid Disputes
  • Construction: A Risk-Prone Business
  • I Qualifying the Project and the Participants
  • Qualifying the Project
  • Qualifying the Project Participants
  • Qualifying the Site and Locale
  • Defi ning Rights, Responsibilities, and Risks: Parties and
  • Their Contracts
  • Contract Framework
  • Standard Contract Forms
  • Critical Contract Provisions
  • Avoiding and Preparing for Disputes through Proper Management
  • and Documentation
  • Prudent and Responsible Estimating
  • Establishing Standard Operating Procedures
  • Establishing Lines of Communication
  • Project Documentation
  • Electronic Communications on Construction Projects
  • Industry Forms Addressing Electronic
  • Communications
  • Web-Based Project Management Systems
  • Building Information Modeling
  • Collaborative Uses of BIM
  • BIM’s Legal Implications
  • Cost Accounting Records
  • Monitoring the Work through Scheduling
  • Preserving Electronically Stored Information
  • Conclusion
  • Points to Remember
  • Consensus DOCS
  • Contractor’s Statement of
  • Qualifications for a Specific Project
  • Checklist: PrebidProposal Environmental
  • Considerations
  • Checklist: Contracts in Foreign States
  • Logs and Forms
  • Payment Bonds
  • Payment Bonds Required by Statute
  • The Miller Act
  • Little Miller Acts
  • I Payment Bonds on Private Projects
  • Qualifying for Payment Bond Coverage
  • “Subcontractors” and “Suppliers”
  • Suppliers of Customized Materials
  • “Substantiality and Importance” of Relationship with
  • Prime Contractor
  • “Dummy” Subcontractors, Alter Egos, and
  • Joint Ventures
  • Claimants on Private Payment Bonds
  • Work Qualifying for Payment Bond Coverage
  • Labor and Materials
  • Equipment Repairs and Rental
  • Recovery under Payment Bonds for Extra Work, Delay Damages, or
  • Lost Profi ts, and Other Costs
  • Extra Work
  • Damages for Delay and Lost Profi ts
  • Attorneys’ Fees and Other Costs
  • Distinguishing between Payment Bond Claims and
  • Performance Bond Claims
  • Procedural Requirements
  • Time of Notice
  • Time of Lawsuit
  • Surety Response to Notice of Claim
  • Effect of Payment Bonds on Lien Rights
  • The Surety’s Defenses to Payment Bond Liability
  • Pay-If-Paid Clauses
  • Misrepresented Status of Payments
  • Claim or Lien Waivers
  • Points to Remember
  • Performance Bonds and Termination
  • Surety Performance Bonds
  • Fundamentals of Suretyship Law
  • Extension of Performance Bond Surety’s Liability to
  • Third Parties
  • Increase of the Surety’s Liability under a Performance Bond
  • Surety’s Defenses to Performance Bond Liability
  • Surety Entitlement to Contract Funds
  • Industry Performance Bond Forms: A Comparison
  • Effect on the Surety of Arbitration of Construction
  • Disputes
  • Alternatives to Bonds: “Subguard” Programs
  • I Termination
  • Overview
  • Termination for Default
  • Standard Form Contracts: Grounds for Default Termination
  • Defenses of the Contractor
  • Contractor Response to Termination Notices
  • Remedies of the Owner
  • Termination for Convenience
  • Convenience Termination Costs
  • Points to Remember
  • Proving Costs and Damages
  • Basic Damage Principles
  • The Compensatory Nature of Damages
  • Categories of Damages
  • Causation
  • Cost Accounting Records
  • Mitigation of Damages
  • Betterment
  • I Methods of Pricing Claims
  • The Total Cost Method
  • Segregated Cost Method
  • Modifi ed Total Cost Method
  • Quantum Meruit Claims
  • Contractor Damages
  • Contract Changes and Extras
  • Wrongful Termination or Abandonment
  • Owner-Caused Delay and Disruption
  • CONTENTS x
  • Owner-Caused Acceleration
  • Defective Drawings or Specifi cations
  • Ineffi ciency Claims
  • Owner Damages
  • Direct Damages
  • Consequential Damages
  • Liquidated Damages
  • Points to Remember
  • Construction Industry Environmental and
  • Safety Concerns
  • Sources of Environmental Regulation and Liability
  • Encountering Hazardous Materials on a Construction
  • Site—CERCLA Liability
  • Water Quality
  • Air Quality
  • I Minimizing Environmental Risks
  • Conduct a Prebid Environmental Review of the
  • Contract Documents
  • Contract Provisions and Indemnifi cation
  • Insurance
  • Proper Management Techniques
  • Management Review of Environmental Risks
  • Have a Response Plan
  • Immediately Stop Work in the Affected Area
  • Provide Immediate Notice
  • Do Not Resume Work without Proper Authorization
  • Mold: Developing a Program to Limit Liability
  • Environmentally Friendly Construction: Green Buildings
  • LEED Certifi cation
  • Design and Construction Issues Affected by Green Building
  • Construction
  • Bearing the Risk: Legal Issues Raised by LEED
  • V Construction Safety
  • Sources of Safety Requirements: OSHA-Specifi c
  • Project Procedures
  • Successfully Working with OSHA
  • Who Is Responsible for Project Safety?
  • Indemnifi cation
  • Workers’ Compensation Statutes
  • Points to Remember
  • Construction Insurance
  • Importance of Insurance Planning
  • I Types of Insurance
  • Commercial General Liability
  • Builder’s Risk Insurance
  • Errors and Omissions Insurance
  • Alternatives to Traditional Insurance Programs
  • Contract Requirements for Insurance
  • Standard Contract Clause
  • Waiver of Subrogation
  • Proof of Insurance
  • Prompt Action to Protect Potential Coverage
  • Sensitivity to Insurance Issues
  • Immediate Notice
  • Insurer’s Response to Claims
  • Reservation of Rights
  • Litigation with the Insurer
  • Routine Coverage Issues
  • CGL Coverage Issues
  • Builder’s Risk Coverage Issues
  • Concurrent Causes
  • Construction Insurance and Mold Claims
  • The Insurance Industry Responds
  • Mold Claims: Establishing whether Coverage is Available
  • Points to Remember
  • Labor and Employment Issues Affecting the
  • Construction Industry
  • Immigration Issues
  • Immigration Documentation and Control
  • Responses to Immigration Inquiries
  • Immigration Issues in Public Contracting
  • I Employee Safety and Health
  • Wage and Hour Requirements
  • Basic Calculation
  • Overtime Calculation
  • Independent Contractor Status Considerations
  • Government Contracts
  • Employee Benefi ts: ERISA
  • Employment Discrimination
  • Equal Employment Opportunity Commission
  • Title VII of the Civil Rights Act of
  • Americans with Disabilities Act
  • Age Discrimination in Employment Act
  • Discrimination and Public Contracting
  • Offi ce of Federal Contract Compliance Programs
  • Executive Order
  • Uniform Service Employment and Re-Employment Rights
  • Act
  • Family and Medical Leave Act
  • Union Activity
  • Union-Organizing Tactics
  • Appropriate Employer Responses to
  • Union Activism
  • Utilizing Employee Background Investigations
  • Points to Remember
  • Bankruptcy in the Construction Setting
  • Introduction
  • I The Players
  • Bankruptcy Code
  • Chapter Reorganization
  • Chapter Liquidation
  • Automatic Stay
  • Sanctions for Violation of Automatic Stay
  • Relief from the Automatic Stay
  • Preferential Transfers
  • Exceptions to the Preferential Transfer Rule
  • Discharge
  • Nondischargeable Debts
  • Status of the Debtor’s Contracts
  • Executory Contracts
  • Affirmance or Rejection
  • Assignment
  • Minimizing the Impact on Executory Contracts
  • Status of Materials and Equipment
  • Property of the Debtor’s Estate
  • Supplier’s Right to Recover Goods
  • Stored Materials
  • Voiding Unperfected Security Interests
  • Status of Contract Funds
  • Unearned Contract Funds
  • Earned but Unpaid Contract Funds
  • Other Sources of Funds
  • Performance and Payment Bond Claims
  • Mechanic’s Liens
  • Guarantors
  • Points to Remember
  • Resolution of Construction Disputes
  • Early Claim Recognition and Preparation
  • I Early Involvement of Experts and Attorneys
  • Demonstrative Evidence
  • Contemporaneous Records
  • Components of a Well-Prepared Claim Document
  • Calculating and Proving Damages
  • Pursuing Negotiation and Settlement
  • Alternatives to Litigation
  • Dispute Review Boards
  • Minitrials Summary Jury Trials
  • Mediation
  • Arbitration
  • Time and Costs of Arbitration
  • Selection of Arbitrators
  • Informality and Limited Appeals in Arbitration
  • Enforceability of Agreements to Arbitrate
  • Special Problems Involving Multiple Parties to
  • Arbitration
  • Med-Arb
  • Arbitration Agreements and Procedures
  • American Arbitration Association Rules and Procedures
  • Center for Public Resources Rules and Procedures
  • International Chamber of Commerce Rules and Procedures
  • Party-Drafted Arbitration Agreements: Federal and State Law
  • Considerations
  • Litigation
  • Profile of the Construction Trial
  • The Court System
  • Federal Rules of Civil Procedure
  • Discovery
  • Judge or Jury?
  • Alternative Dispute Resolution in the Courts
  • Trial
  • Live Testimony
  • Points to Remember
  • Federal Government Construction Contract Disputes
  • Historical Overview
  • I Scope of the Contract Disputes Act
  • The Freedom of Information Act: A Claim Preparation Tool
  • Contractor Claims
  • When Must a Claim Be Submitted?
  • Notice Requirements
  • Who May Submit a Claim?
  • What Constitutes a Claim?
  • Written Submission to the Contracting Officer
  • Elements of a Claim
  • Certification Requirement
  • Monetary Threshold for Certification
  • Modification of Claim Amount
  • Certification Language
  • Supporting Data
  • Who Can Certify the Claim?
  • Other Certification Requirements
  • Certification of Subcontractor Claims
  • Government Claims
  • Contracting Offi cer’s Decision
  • Time Allowed for Issuing the Decision
  • Contents of the Final Decision
  • Appeal Deadlines
  • Choosing a Forum: Board or Court of Federal Claims
  • Transfer and Consolidation of Cases
  • ADR and Government Contract Disputes
  • I Recovery of Attorneys’ Fees in Government Contract Claims
  • False or Infl ated Contract Claims
  • Points to Remember

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