Never, ever, ever assume! (or, how a stuck shoe is like a construction project assumption)

This summer, I had the fortune of taking a trip to Europe.   The first place I visited was Amsterdam.  A lovely town with a lot of culture and more canals than you can shake a stick at.  I was meeting family there, but had hours to kill ahead of time.  So, I decided to take the train from the airport into the City Centre, leave my bags at the train station luggage locker, and begin exploring.

My plan took its first misstep when I attempted to board the train.  Not being in a hurry, I let the other passengers get on first.  Sure, I noticed the train conductor blowing his whistle while I stepped onto the train, but figured I was fine since I was already on the steps up.  Until, that is, the door began to close, with me in the doorway, suitcase in the train, one foot inside, and one foot mid step up to the cabin.   The door closed on my backpack (which was still on my back), but I managed to force it into the train compartment.  My shoe, however, was not quite as lucky.  Part of my shoe made it inside, and part was outside the door.

 

shoe

The shoe in the doorway

No worry– just look for the door release mechanism, right?  Wrong!  There was none.  The train started up, with my shoe still halfway in and halfway out of the train.  (Luckily my foot itself made it inside all in one piece).  The conductor came along to scold me, and told me that he could *probably* rescue my shoe once we got to Central Station.  In the meantime, I sat on a nearby jump seat, keeping tabs on my shoe and  fuming that this was *not* the way I planned to start my vacation.  Long story short– the train conductor was able to salvage my shoe, but not without a lot of commentary on how I should never have boarded the train after the whistle blew.  Lesson learned.

HOW, you may ask, does my shoe tale relate to your construction project?  It’s in the title:  never, ever, ever (ever, ever, ever) make assumptions.  I made the unfortunate assumption that the train doors in Europe would release when met with any type of obstacle, since they tend to do that here.

You make that assumption when you do projects for clients without a formal letter or contract outlining your scope of work.  Sure, you’ve worked with a client before, and know what he wants.  But maybe times have changed, or management has a new policy in place.  Maybe in the past, you could simply email the client that you needed to increase your hourly rates.  Now, you are required to keep the same hourly rates for the entire project.   Unless, that is, you already planned for regular increases in your contract itself.

Or, maybe you are working with a new owner client.  That owner may assume that you will do certain things for your fixed rate, that are not standard and were never even on your radar.  Do you have exclusions to your Scope of Work in the contract?  If so, you are set.  Point the client there, and you should be done.  Or, you could be like me, and go shoeless into the City.  Your choice!

Have you ever made an unfortunate assumption?  If you did and lived to tell the tale, share in the comments below or drop me a line.  I want to know that I’m not the only want that has stuff like this happening to them!!!

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.

Bonus Post: Other Notable Changes to the A201 Construction Contract (law note)

Bonus

Following our deep-dive into the newest A201 changes, and as promised in yesterday’s Insurance changes post, here are a few bonus changes to the General Conditions of the Contract:

  • If the Architect is terminated, the Owner must identify a successor Architect that the Contractor agrees with (Section 2.3.3)
  • The Contractor’s schedule is to include interim milestones and apportionment of the Work (Section 3.10.1)
  • The Contractor can rely on the accuracy of the design criteria in the Documents (Section 3.12.10.1)
  • Minor changes in the  Work- must be in writing; are deemed accepted at no cost unless Notice is given (Section 7.4)
  • The Owner may contact not only Subcontractors to determine payment, but also Suppliers (Section 9.6.4)
  • The Contractor indemnifies the Owner for lien claims, if paid in full (Section 9.6.8)

Do you have a question or comment about the A201, or the revisions to the A201?  If so, drop me a line below or through email.

Photo via AlphaStock images via Creative Commons license.

 

Contract Change #1- Insurance in the A201 (law note)

At last, we have arrived at the Top Change in the AIA A201— and it deals with the subject that everyone loves to hate (until they need it!), Insurance.  (Go here for yesterday’s post on Digitial Data changes).

Got Insurance

Insurance– everyone needs it; everyone would just as soon not have to deal with it.  I get it, I do.  Attorneys, Insurance Agents– no one likes spending time with those folk!  Good news though.  The changes to the A201 mean that you may end up spending less time with both!

The most important change to the Insurance requirements of the AIA contract is that most of it has moved to a new Exhibit.  Why is this important?  Instead of having to send the entire contract to your agent or broker, you can now send them only the section that they really need to review for compliance.  This also means that if insurance policies change (as they surely will), the entire contract document does not need to be re-written– the Exhibit can be updated accordingly, leaving the rest of the A201 alone.  Nice, right?  This change was made to streamline insurance review and provide for that flexibility of the changing insurance market.

Does this mean that there are *no* insurance requirements in the A201 anymore?  Unfortunately, no.  There are still some insurance provisions in Article 11, such as the requirement that both parties maintain insurance.  (11.1.1 and 11.2.1).

Most notably, it is now the Owner & Contractor, and not the insurer’s, requirement to provide each other with notice of cancellation/expiration within 3 days.  (Section 11.1.4 and 11.2.3).  The party receiving notice can stop work until the insurance lapse is cured.  The reason for the notification change is that prior editions of the A201 required that the insurer notify the Owner of a pending lapse in insurance.  That provision was ultimately removed from the certificates of insurance issued by most insurers, so it was eliminated as a requirement to codify what was happening on the ground between the parties.

There are also some changes to property insurance losses.  The Owner must notify the Contractor of proposed settlements and allocations, and the Contractor has 14 days to object or he will be bound by the allocation.  (See 11.5.2).

The main take-away here is that most insurance will now be in a streamlined, stand-alone exhibit which will make it easier for you to ensure your agent/broker is on board with the requirements before work begins.

In case you are wondering why, as the architect or engineer, you need worry about insurance of the contractor, just remember that it is in your own financial interest to make sure they are properly insured for the project.

That’s it.  You’ve made it through the Top 10 changes.  I do have a few other changes of note, which will be in my next post.  Stay tuned!  As always, if you have any comments or questions, drop me a line or comment below.

Photo (c) CheapFullCoverageAutoInsurance.com

Contract Change #2- Digital Data in the A201 (law note)

BinaryDataComing in at #2 on our Top A201 Contract Changes is Digital Data.  (Yesterday’s post on Termination for Convenience changes is here.)

Building Information Modeling (BIM) is fast becoming common place on larger construction projects.  However, there are multiple risks associated with using digital formats that can be manipulated by multiple parties.

In the 2017 revisions to the A201, there is now a requirement that data protocols be established concerning the development, use, transmission, and exchange of all digital data, including BIM data.  (See Section 1.7).

The E203 form is the suggested document to create the digital protocol.  Note, however, that if the parties have not established a protocol, the use of any digital data is at that party’s own risk.  (Section 1.8).

Further, revised section 3.11 clarifies that the Contractor can keep contract documents, change orders, construction change directives, and other modifications at the site only in electronic format, if it so chooses.

Again, a common theme about these contract changes– they are small, but they are important.  As the designer of record, it is vital that you play a lead role in determining the who/what/when/where/why of data transmission.

Tomorrow, we finally come to Contract Change #1, dealing with Insurance.  It’s a doozy! Stay tuned!

 

Photo (c) W. Rebel via Creative Commons.