Why Misery Loves Company (aka Concurrent delay on the Construction Project) (law note)

You know the old saying, “Misery loves company?”  It’s true.  Even in the construction world.

misery license tag

What happens if, while the design team is asleep at the switch, the contractor is also delaying the project, or the owner is dithering about a materials selection?  Since there was more than one cause of the project delay, does that let you off the hook?  Maybe so.

The above scenario is, in its bare-bones basics, an example of concurrent delay.

What is concurrent delay?  Concurrent delay is delay to the critical path of construction, caused at the same time by multiple events not exclusively within the control of one party.  In other words, it is when two or more parties both contribute to the delay of the project.

In such a case, neither may recover damage from each other, unless there is proof of clear apportionment of the delay and expenses.  See Biemann & Rowell Co. v. Donohoe Cos.,147 N.C. App. 239, 245, 556 S.E.2d 1, 5 (2001).

Where both parties contribute to the delay, neither can recover damages, unless there is proof of clear apportionment of the delay and the expense attributable to each party.  In such an instance, the only remedy for both parties may be an extension of time to the contract.

Have you experienced a case where concurrent delays existed on a Project?  Were you able to apportion the delay damages, or did all the culpable parties pay the price?  Share below. 

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Photo: Misery by Molly Helzschlag via Creative Commons license.

Should You Be a LEED Green Associate? (Tue Tip)

LEED Green Associate

Those of you who follow my twitter stream know that I recently passed the exam to become accredited as a LEED Green Associate.  The LEED Green Associate is a new credential, and the first level of credentialing that also includes the LEED-Accredited Professional + Specialty.

Why did I do it?  I wanted to have a better understanding of the various LEED requirements and sustainability issues when working with my architect and engineering clients.  Many of my A/E clients are AP certified — most before the new burdensomedetailed requirements were issued (not that I’m bitter or anything!).   I, on the other hand, knew just enough about green design to be dangerous.

While I’m ready not exactly ready to go out and leap tall (green) buildings (no doubt complete with vegetated roof) in a single bound, I do have a much broader understanding of the intricacies of complying with not just Code issues but also LEED issues in mind.

So, to return to the title, should YOU get a LEED Green Associate accreditation?  Yes.  If you are reading here, then you probably would benefit.  (Unless you StumbleUpon’d your way here, in which case, not necessarily!)  If you work with architects and engineers, and certainly if you are an A/E and haven’t yet gotten green credentialing, get your Green Associate credential.   You will learn about a wide cross-section of green issues, including sustainable sites (SS), water efficiency (WE), energy & atmosphere (EA), materials & resources (MR), indoor environmental quality (EQ), innovation in design (ID), and regional priority issues.

Are you interested in becoming a Green Associate?  Let me know and I can share some study tips. 

Or, are you already accredited with the USGBC?  Under the old or new system?  What has it taught you?  Share in the comment section below.


“LEED Green Associate” and the LEED Green Associate logo are trademarks owned by the U.S. Green Building Council and are awarded to individuals under license by the Green Building Certification Institute.

Contracts are the Key to a Great Project (Guest Post)

 Today I have the pleasure of another guest post.  Christopher G. Hill is lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC, a LEED AP.  Chris has been nominated and elected by his peers to Virginia’s Legal Elite in the Construction Law category on multiple occasions. He specializes in mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.  Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals. 

Chris Hill

Chris Hill

First of all, thanks to Melissa for the great opportunity to post here at her blog.  She has been kind enough to post on two occasions (here and here) regarding the need for specificity and proper drafting in construction contracts.

Aside from the “back end” implications of a poorly drafted construction contract, there are other benefits to a well drafted set of construction documents.  The overarching reason for a well drafted contract is the setting of expectations.  Because the “contract is king” in most states, these initial expectations are key.

Without further ado, here are my thoughts on the proper setting of expectations.

1.            Make sure that the scope of work is well outlined.  Mere reference to “plans and specifications” is not enough.  You need to have at least a date for each of these or else a specific list of items to be performed and the specific scope of those items.

2.            Be sure that your dispute resolution procedures are well outlined.  This needs to be very specific and set forth any claims process.  While I am not a huge fan of mandatory arbitration, this is one area where you can tailor the dispute resolution to your needs.

3.            Make sure that the change order process is well defined and followed.  I cannot count the number of disputes that I have been involved in that come down to this process.

4.            While it sounds simple, define what “finished” means.  Does it mean acceptance by the architect? The Owner? The General Contractor?  What does “acceptance” mean?  All of these seem easy to think of answers to until the project is “finished” in your mind and not finished in the owner/general contractors mind.

5.            Attorney Fees, Attorney Fees, Attorney Fees! Without this provision (or a statute that allows for the recovery of these fees) most states’ courts will not allow you to recover the fees expended in resolving a contract dispute.

6.            Most importantly, read the contract and all of those pesky documents that are referred to by that contract.  Without a thorough understanding of the provisions of these other documents, you cannot know your expectations entering into a construction project.

In a world where one word in a contract makes all the difference, setting these expectations early can not only help you out with a dispute but can go a long way toward avoiding the disputes and (heaven forbid) do so without the intervention of your local construction lawyer.

 Chris and I welcome your thoughts and comments.  Be sure to stop by Chris’  blog and say “hi” too!

Case Studies for Sustainable Landscapes (Tue Tip)

stormwater treatment basin with aquatic plants

Interested in incorporating sustainable landscape solutions into your projects?  The Landscape Architecture Foundation (LAF) has a database of case studies just for you!

LAF’s Landscape Performance Series is an online interactive set of resources to demonstrate the value of sustainable landscapes to agencies, owners, advocates, and others.

The Performance Series includes:

  • Case Study Briefs
  • Benefits Toolkit
  • Factoid Library
  • Scholarly Works

Check it out!

Do you have a favorite resource on the web for your design practice?  If so, drop me a line so I can share your find with your fellow architects, engineers, and construction professionals. 


Photo: from LAF’s Performance Series Case Study Brief: Kroon Hall, Yale School of Forestry

As goes the asphalt, so goes the nation?

Two recent paving projects featured in the April edition of Roads & Bridges magazine tell the tale of a new, greener future for civil engineering specifications relating to asphalt projects.

  •  The use of recycled asphalt shingles (RAS) is gaining speed after a test in King County, Washington, where a 2 mile long stretch of roadway was overlaid with a 2-in.-thick layer of hot-mix asphalt (HMA) containing both reclaimed asphalt pavement (RAP) and recycled asphalt shingles (RAS). The goal was to show that the addition of the shingles to the HMA had no significant negative impact on pavement performance, and the early testing seems to bear that out.

Locally, North Carolina (NC) has a standard specification that allows RAS from manufacturers’ scrap only. The regulations on RAS for other states can be found here.

recycled asphalt shingles

  • The use of a new Re-HEAT process in Greenville, Mississippi enabled the city to repair over 43 streets (versus the 20 streets originally planned). The Re-Heat process, which is an on-site, in-place pavement rehabilitation method that consists of heating existing pavement, removing surface asphalt, adding a polymer-modified asphalt-rejuvenating emulsion, and re-laying the recycled material, followed by conventional compaction. In addition to cost savings, the Re-HEAT process was faster and had an 80% smaller carbon footprint.

A win-win? Are these green projects which can save the greenbacks?

It is, assuming all goes as planned. Or, it can be a win, assuming all parties are aware of, and have given informed consent to, the risks associated with the use of experimental or new construction methods and products.

The lawyer in me can’t help but see potential litigation issues.   With some careful crafting of the construction documents and contracts, however, it can indeed be a win for all involved.  What are your reactions?  Have you specified or used RAS or a re-HEAT process?  Share your thoughts below.


Photo:  D4647_CM032 via MoDOT/Creative Commons license.

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