By now, I hope you know me well enough to know that I’d never, ever say you should make a guaranty of performance, period, let alone guaranty the green performance for a new building. However, sometimes caution has to be thrown to the wind to get the job– at least in the case of a recent GSA design-build project in Seattle.
There, the design-build team agreed that the GSA could withhold 0.5% of the original contract amount, or $330,000, pending the achievement of energy goals. As writer Suzanne H. Harness, J.D., AIA, noted recently:
The GSA’s approach is diametrically opposed to the recommendations of the American Institute of Architects, which advises both architects and contractors not to guarantee or warrant the achievement of a sustainability goal. The AIA’s 2011 Sustainability Guide explains the obvious: contractors and architects can design and construct a building, but the owner operates it, and the owner’s actions are beyond the control of the design and construction team. If the owner operates the building differently from the assumptions used during design, performance goals will likely not be met, even if the building is perfectly constructed. [Emphasis added].
Ms. Harness also correctly noted that professional liability insurance would not cover such a guarantee of performance. So beware to the design team who takes such a project on: they can be held contractually liable, but there will not be insurance to cushion the fall out from any lawsuit.
Just DON’T do it!
Three engineering students were gathered together discussing the possible designers of the human body.
One said, “It was a mechanical engineer. Just look at all the joints.”
Another said, “No, it was an electrical engineer. The nervous systems many thousands of electrical connections.”
The last said, “Actually it was a civil engineer. Who else would run a toxic waste pipeline through a recreational area?”
Engineer In Hell
An engineer dies and reports to the pearly gates. St. Peter checks his dossier and says, “Ah, you’re an engineer — you’re in the wrong place.”
So the engineer reports to the gates of hell and is let in. Pretty soon, the engineer gets dissatisfied with the level of comfort in hell, and starts designing and building improvements. After a while, they’ve got air conditioning, flush toilets, and escalators, which makes the engineer a pretty popular guy.
One day God calls Satan up on the telephone and says with a sneer, “So, how’s it going down there in hell?”
Satan replies, “Hey, things are going great. We’ve got air conditioning and flush toilets and escalators, and there’s no telling what this engineer is going to come up with next.”
God replies, “What??? You’ve got an engineer? That’s a mistake — he should never have gotten down there; send him up here.”
Satan says, “No way. I like having an engineer on the staff, and I’m keeping him.”
God says, “Send him back up here or I’ll sue.”
Satan laughs uproariously and answers, “Yeah, right. And just where are YOU going to get a lawyer?”
The Engineer and the Red Rubber Ball
A mathmatician, a physicist, and an engineer were all given a red rubber ball and told to find the volume.
The mathmatician carefully measured the diameter and evaluated a triple integral.
The physicist filled a beaker with water, put the ball in the water, and measured the total displacement.
The engineer looked up the model and serial numbers in his red-rubber-ball table.
Ba dum dum! This concludes our programming day. Have a great weekend, everyone!
As I mentioned, I was one of three amigos who spoke on a Construction Contract webinar last week. We had a good turn out and lots of very astute questions during the Q&A portion. While you will miss all of my
witty insightful helpful commentary, you can check out the slides for my portion, on understanding and modifying key terms, here:
- “E-mails can haunt. ‘Any e-mail you write can be used against you. Be careful—don’t write anything you don’t want to show up on the front page of your local newspaper.’” [I always say: imagine having to explain what you wrote to your elderly grandmother.].
- “A tip: Mediate, mediate, mediate: This is the chance to control the outcome. In arbitration or in front of a jury, others control the outcome.” [This is very true. Early mediation can sometimes be productive, but other times some discovery is necessary first. Each case is different, so discuss when to mediate with your lawyer.]
- “Be careful what you say. Example: If you call the contractor ‘an asshole,’ you are not covered by your insurance; if, as the observer of the process, you call the contractor incompetent, you are.” [While I’m not nuanced in the acceptable derogatory language that may or may not be covered by your insurance policy, in general err on the side of caution. Think of your grandmother again when you decide what language you will use.]
- “It’s not the size of the claims that hurts, it’s the time it takes to fight it—and the cost…Get your insurer’s assistance during the project to try to resolves issues as they arise.” [Very good advice. Often, free claims prevention/loss prevention services are covered under your errors & omissions insurance policy.]
Photo (c) Moon Stars Paper blog.