Changes to your Scope of Services on the Construction Project (law note)

change!Our office is in the middle of a large renovation.  It’s been several months of drilling, sawing, painting, carpeting– you name it.  I’m proud to say that we have had not one change to the scope of work during that time.  <insert maniacal laughter here>.  Okay, that’s simply not true.  Change–like death, taxes, and bodily functions–happens.

In the same way that incoming wave will soon destroy that sand-written “change” sign in the picture that accompanies this post, change will happen in all parts of a construction project.

As the architect or engineer of record, you undoubtedly have a thoughtful, well-written contract or proposal.  Ideally, your contract states exactly what is, and is not, included.  But inevitably, something will slip through the cracks.  A likely scenario: the owner asks for “just a small change over here,” “one more quick site visit” over there, and hey, what’s a few extra months of contract administration among friends, right?

Whenever you experience such “scope creep”, document it.  Ask how compensation will be handled up front.  Even a quick email to the owner, stating that you’d be happy to make that extra site visit and will invoice per the contract, will make the owner aware that you expect compensation.   Have the discussion before the work is done.  When they are likely to say “great- how soon can you do it?”.  Or, if they don’t expect to pay you for your extra services, they’ll tell you that.  Either way, you’ll know what the expectations are for payment.  And, should you not get the payment later on, you have a nice piece of written evidence to show a judge or jury.

Your turn.  Have you experienced “scope creep” on a project?  How did you handle it?  Comment below, or drop me a line.  New readers: Check out the white paper on 7 Critical Mistakes that Design Professionals Make, available for free download on the right hand side of the page.

 

Photo “Change in the Sand” (c) Melissa Brumback. Creative Commons License

Orders of Precedence in Construction Contracts, and the conflict between architects and contractors

duking it outA few years back, we discussed the Orders of Precedence clause in Construction Contracts.  I wrote a post talking about how having such a clause in a contract can help the parties navigate in the grey areas where specifications and drawings may disagree.

My post generated a follow up guest post from Phil Kabza, a MasterSpec specialist, on what he saw as the problems with an order of precedence clause in truly protecting all parties to the contract.

This week, Phil’s guest post generated a new, and thought-provoking (flame-provoking?) comment from “Joe GC”.  Joe writes:

It is another very typical situation of the Architect and Engineer doing a poor job and then trying to seek relief of their error at the contractors expense. Phil’s comments are based on the fact that all contractors are not ethical, which is simply not true. If the subcontractor is the expert, then why are the drawings and specifications prepared by Architect’s and Engineer?

This is exactly why Design Build delivery methods are becoming more popular by the day.   Single source responsibility from someone who really is an expert, not someone who has a lot of education and therefore purports to be an expert.

In otherwords in laymen’s terms “If I have to verify everything you draw and specify Mr. Architect, then why do I need you in the process at all”? If you are not responsible for the review of the submittals then why do I need to send them to you? No more “approved” stamps just “reviewed” stamps; it’s becoming a joke!

When will the Design Community wake up? That is why so many Architects and Engineers are now finding themselves working for contractors.  You are responsible for the Design Mr. Architect, it is cut and dry, simple as that, not rocket science and you do not need to be AIA or P.E. to understand it.

AIA needs to do more training, especially when it comes to spending time in the field. They need to understand what they are designing, just as the contractor needs to understand what he is building.  They have never seen it that way because they think they are above the contractor or smarter than the contractor.

Until they learn they are not better or smarter because of classroom education things will not be improving and the lawyers will continue to be the most successful.

 

Interesting perspective as to why Design Build is becoming more popular.  I think Joe is correct that Design Build is more popular now, but I think it has less to do with concerns about design professionals avoiding liability and more to do with the economic value in having the “buck stopping” at one single entity.

Is there a perception that designers are classroom educated but not field trained?  Is it a fair one?  Share YOUR thoughts with Joe and me, below.

 

What the Triangle’s Construction Boom Means for Dealing with Hispanic Crews (tip)

Today, we have a guest post from Elsa Jimenez,  founder of English to Spanish Raleigh.  Elsa is a native Spanish speaker who was born and raised in a Hispanic country. She is an accomplished lawyer and translator who has been living and working in the U.S. for many years and is also a member of the American Translators Association.

Construction in the Triangle is booming. Whether new construction or remodeling, the Triangle Business Journal reports that Wake County construction permits for August were some of the market’s largest gains of the past year – roughly a 20% increase year-over-year.

The trend of new homes and multi-family home construction continues to increase in the Triangle’s towns and cities, with Cary leading the way with the most permits issued. Towns like Raleigh, Apex, Morrisville, and Wake Forest also have many new development projects planned. This makes our area a prime target for companies like Choate, C.F. Evans, Wood Partners, and other builders and contractors, as they make their way into these areas to complete these projects.

With construction being one of the top industries with Hispanic or Latino workers, this trend means much more than a booming housing and development market in the Triangle. It presents a need for English to Spanish translation of business documents, employee handbooks, and safety manuals.

Here’s an example of how one contractor met the OSHA requirements and bridged the communication language gap with more than just their business documents:

 

job site sign in Spanish

One of the nation’s largest general contractor construction firms here in Raleigh, NC, Brasfield & Gorrie includes Spanish translated signage in front of their Crabtree Valley Mall site.

With the growth in construction projects in North Carolina, it’s equally important to put this into context in terms of the state’s Hispanic population. North Carolina has seen growth in the Hispanic population, above the national average.

Image Credit: https://ui.uncc.edu/story/hispanic-latino-population-north-carolina-cities-census

Image Credit: https://ui.uncc.edu/story/hispanic-latino-population-north-carolina-cities-census

According to the Pew Research Center, of the Hispanics and Latinos in North Carolina, only 19% speak only English at home (138,000). 81% speak another language at home (581,000). The Spanish language is a pillar in the Hispanic community, and speaking Spanish is not going anywhere soon, making it yet another “must” for companies, builders, and contractors to translate their documents from English to Spanish.

So, as we see the housing and development market continue to grow, we are likely to see more Spanish translated materials.

Make sure your business documents – from HR forms, safety manuals, and employee handbooks – are professionally translated from English to Spanish to accommodate the growing population of Hispanics in NC, comply with OSHA regulations, and meet the growing need of streamlined communication.

The best English to Spanish translation firm will be one composed of native Spanish-speakers, who know the contextual cues and nuances of the Spanish language, and can provide the crucial aspect of cultural relevancy – things that online translation tools simply cannot provide.

 

Thanks, Elsa, for your thoughts.  Have you had experience dealing with language barrier issues while out and about on construction sites?  Share in the comments, below.

 

 

Belts, suspenders, and breakfast bars: construction contract tips (law note)

SuspendersBelts, suspenders, and breakfast bars.  Want to know what they have in common, or how they relate to your construction contracts?

Take a gander over to Construction Law Musings this morning, where I am guest-posting on the importance of being clear– very clear– in your construction contracts.

Key takeaways?

  •  clear up possible points of confusion
  •  don’t “wing it” with old contracts
  •  read your entire contract during the negotiation phase

Read the entire post at this link:  Belt & Suspenders: the preferred style for your Construction Contract.

See you there!

 

 

 

Give Way or Yield? The jurisdiction of your contract does matter! (Law note)

give way signHave you ever been to England?  If so, you’ve likely seen their version of our “Yield” sign– the “Give Way” sign.  It is a bit jarring to those from this side of the “big pond”.

Similarly, contracts can be worded differently– and, interpreted differently– depending on the state that you are in.  This is why it is always a good idea to have your contract or proposal vetted for the state(s) where you provide professional services.

When confronted with a “give way” sign you have the general idea of yielding, but might be confused by that whole “left side of the road” thing in some countries, where if you are turning right, you must give way to all vehicles coming towards you including those turning left.  Likewise, you might have a good understanding of your construction contract in one state, but not how it would be interpreted in another state.

As just one of many examples– the statute of repose can vary widely.  In North Carolina, it is 6 years.  In South Carolina, it is 10 years.   The jurisdiction (state) that you are in does matter– sometimes critically so.

Have you ever found yourself in trouble because of a difference of state laws from what you are most familiar with?  Share in the comments section below.

 

 

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