Need to Cover Yourself for “Crisis” Changes on a Job Site? Try These Tips (guest post)

Today, we welcome back friend of the blog Christopher G. Hill. 

Chris is a  LEED AP, a Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC.  Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.  

His practice concentrates on mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.  [His blog, by the way, was an active influence when I was just getting started on my own blogging endeavor.]  Take it away Chris………….

Chris Hill

 

I am always happy to guest post here at Melissa’s blog (despite the fact that she went to a school with the wrong color blue) and she had a great idea for a topic (namely that in the title of this post) so I decided to run with it.  So, without further ado. . .

As construction professionals we’ve all been there.  Something happens on a job site that requires immediate attention and possibly a changed sequence of work or possibly a change to a subcontractor’s scope.  It could be a buried power line that Miss Utility failed to mark properly or an owner that wants a different HVAC configuration at the last minute.  It could also simply be that it rained too much, and work had to slow down.

The above examples are instances of items that are beyond the control of the general contractor or the subcontractors and are the type that require shifts in work schedules and changes in scope that must be dealt with on the fly and require quick decisions and immediate action if the project is to meet any time of completion reasonably close to that which is listed in the contract documents.  It can often seem that there is no time to meet the written change order provisions of any well drafted construction contract.

Of course, failing to get your change orders in writing could lead to a situation that only a construction attorney could love: ambiguity, claims and possible litigation.  So, what do you do in the “heat of battle” when the Owner or General Contractor is pushing for the change and telling you to get it done, we’ll do the paperwork later?  While anything aside from an agreed change order with the signatures of all parties is not ideal, when the circumstances keep this from happening, the following steps can keep you from losing a potential claim:

  1. Use your smartphone.

    We all carry these computers in our pockets that also happen to have an app that works like a phone. USE THEM.  When confronted with this type of situation, send an email (I personally hate texts because they’re hard to use later) with the understanding of the work to be done and either a price change or a statement that a price will be coming later in the day.  Be sure to end the email with something to the effect of “If this is not your understanding, please let me know” so that when you don’t get a reply before starting the new work, you are as covered as possible.

  2. Follow up on Number 1

    If you must use Number 1 above, be sure to fill out a claim/proposed change order the same day as the email with the proposed scope change and price.  Most construction contracts give you at most 3 days in which to file your claim or PCO if there is not one in place.  Immediate follow up will in most cases meet these deadlines.

  3. Review your contract and any Prime Contract.

    As stated above, there are deadlines in these documents.  Often there are additional and incorporated deadlines in the prime contract that may limit your follow up time even further.

  4. Don’t “punt.”

    Whatever you do, do not “punt” and fall into the trap of feeling as if you can settle up at the end of the job. Just because the relationship is friendly (or at least reasonably businesslike) at the time of the “crisis” does not mean that when the job gets to the end any paperwork omission won’t be used to avoid payment.

Of course, the ideal would be to avoid beginning the changed work until the change orders have been signed, but this is not always possible.

Great post Chris! 

Remember, without documenting project agreements, you may end up forfeiting your claims later on.  Create a good document system and use it.  During litigation, documents could make or break your case.  

Comments, thoughts, questions?  Drop a line in the comment section below.

Top AIA A201 construction contract changes: a handy cheat-sheet

summaryFriday, I wrote an article for Chris Hill’s Virginia-based blog, Construction Law Musings,  summarizing the Top 10 Changes to the AIA A201, that I discussed in depth over the past few weeks here on this blog.

If you missed any of my earlier posts, or just want a handy “executive summary” or cheat-sheet of the key changes to the General Conditions of the Contract, check out my summary post on the Musings blog.

While there, sign up for Chris’ blog posts to keep up to date on construction law issues in Virginia.  Even though he’s a Duke grad, he’s still pretty cool!

Photo (c) Nick Youngson and Creative Commons license by Alpha Stock Images.

 

Green & Sustainable Roof Design- A Durham Case Study

A recent Roofing Magazine article featured a Durham, North Carolina green home belonging to Alison Trott.  The home is notable for its extensive green and sustainable roof features.

green roof Durham

For a relatively modest 3,400 sq footprint, the house has many different types of roof designs, including a standing seam metal roof on a high gable, a standing seam metal roof that becomes a metal wall, a built up roof with floating deck and a glass railing system.  Then, there is a full green roof over one wing of the house.

That green roof, from Xero Flor America (a Durham company and client of my Firm), was laid down over a hot-mop coal tar pitch roof by Asheville company Living Roof Inc.  Architect for the project was Tina Govan / Somos Design of Raleigh, together with CUBE design + research of Chapel Hill.  Check out the full article in Roofing Magazine’s April 2018 issue.

If you haven’t already, subscribe to the blog, and get your free White Paper by clicking on the icon on the right hand side of the Blog’s home page.  And, if you have any green roof questions, let me know and we’ll see if we can’t get the experts to respond.

 

Design Professionals’ Stamping & Sealing Obligations (50 state survey) (law note)

Stamping Ground KYDo you sometimes wonder if you are meeting your stamping & sealing obligations in each state where you practice engineering or architecture?

Ever find yourself with some questions about how another jurisdiction handles design professional issues?

Wish you could find these answers in a reliable resource and know that it was solid information?

The lawyers have your back!  Check out the first ever 50‐State Survey of Licensed Design Professionals’ Stamping and Sealing Obligations (pdf; large document; give it some time to load)  by the American Bar Association Forum on Construction Law.

The survey is alphabetical, but for easy reference, here are some page numbers for the Southeastern States* to get you started:

  • North Carolina          starting at page 124
  • South Carolina          starting at page 154
  • Georgia                      starting at page 36
  • Florida                        starting at page 30
  • Virginia                       starting at page 176

Download or save this link, and the next time you have a quick question about the various licensing boards, regulations, rules, and procedures,  you can save yourself some time.

* FYI, my law firm has licensed attorneys in each of these Southeastern States, in case you should have further questions.

And, as always, drop me a line with any of your pesky construction law related questions, comments, complaints, etc.

Photo: (c) Coal town guy at English Wikipedia via CC

Apologize for a design error? (law note)

SorryHave you ever apologized to a client for a failure in your professional work? Is that a good idea, or one that will get you in trouble with your partners/ lawyers/ insurance carrier/ the Court? As always, the answer is “it depends”.

Clients are people too. Even institutional clients are made up of people, and all people appreciate being told the truth and having a sincere apology when warranted. However, in general, anything that is said against your own interests can be used against you in Court. What’s a responsible engineer or architect to do?

Last week, I attended a thoughtful presentation on apologies by Burns Logan, Corporate Counsel for Jacobs, at the American Bar Association’s Construction Law Forum. Burns Logan

Burns’ main take aways:

1. You don’t have to actually say you are “sorry” (especially if you aren’t) to get the benefit of the strategy. You only have to include an explanation, accept responsibility, and make a reasonable offer of repair.

2. Deliver the “apology” in mediation where you don’t run the risk of it being used against you as evidence in court (most apology statutes don’t help in construction-related disputes)

 

The second point is key– mediation in most states (including North Carolina) is confidential.  Nothing can be quoted or held against you if it is part of mediation.  So, consider taking responsibility (with explanation), but do so at your mediation conference.

If you’d like to see Burns’ entire slide show, it can be found here.  Thanks, Burns, for a very informative presentation.

Questions/thoughts/comments?  Share below, or drop me an email.

“Sorry” photo (c) myguitarzz via Creative Commons. 

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