Tag Archives: contract administrator

Are we having fun yet? Construction in a post-COVID world (law note)

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Remember how I said to never assume?  Yeah, about that……   even when you plan for failures, mistakes, and other problems, sometimes things get so outside the realm of what you considered that it can leave your construction project spinning.  Take, as a random example, a world-wide pandemic that shuts down supply chains, shuts down job sites, and limits the labor pool.  Just as an example.

What does construction law say about pandemics?  They fall under an “Act of God” that you may have read about in your contracts, or in the contracts of the contractors working your projects.  An “Act of God” is an event that is not foreseeable, and as such not something the parties could have anticipated when they drafted the contract.  Acts of God generally excuse a party’s failure– for example, a contractor’s failure to complete the project on time can be excused when an “act of God” has occurred. 

By now, you’ve dealt with the practical fall out, one way or another.  Many projects no longer made financial sense for your clients.  Others may have been modified, reduced in scope, or had substitute materials put in place.

What do you, as an architect or engineer, do now, faced with the potential for further shut downs, supply chain issues, and other COVID variants?  The short answer is to give yourself options and assume changes will be needed to your own scope of work on each project.  Consider:

  1.  If the project needs to be re-designed to account for shortages, can that be an additional service that you get paid for?
  2. If the project requires substitute products, how many of those are part of your basic service, or is there a point at which you should get paid hourly for researching, reviewing, and approving substitutes?
  3. If the project takes a lot longer than anticipated to complete, whether due to government shut downs, labor issues, or supply chain problems– can you get paid increased contract administration fees?  And, is there a contract provision that allows you to increase your hourly rate after X number of months, to reflect inflation?

These are some of the ways that you, as a designer, can protect yourselves from ongoing delays, and make sure you are not tied to a project without a way to recoup your extra costs.

Thoughts?  Questions?   Share what’s worked for you or what you’d like to learn more about in the comment section below.

 

 

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

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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.

 

For Engineers & Architects: Top 10 Construction Law in NC Blog Posts

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top10Since I have so many newer readers here at Construction Law NC, I thought a brief summary of some of the most popular posts might be helpful.  (I have also added this list to the About Me & Contact Info page, in case you want to refer to it later).

Presented below are the top 10 posts by popularity (although the list does fluctuate some):

  1. “Substantial Completion” on the Construction Project: How is it defined?  (always a popular post; owners want every last paint scratch fixed before they are willing to consider the project complete)
  2. The Sticky Statute of Limitations in NC  (the general rule: 3 years from date of service; however, there are many exceptions)
  3. Statute of Repose: Putting your Risk to Bed  (after 6 years, in North Carolina, even the exceptions to statutes of limitations don’t help)
  4. Planning Ahead for Additional Compensation  (money; cause, we all need to get paid!)
  5. Spring Cleaning: 6 Contract law tips for limiting risk on construction projects  (contracts are the first step in limiting your risk- read here to learn how to make them effective)
  6. How to Smartly Handle Project Documents  (your policies and procedures with documents can make or break a lawsuit)
  7. The Architect’s and Engineer’s “Standard of Care”  (note: perfection is NOT the standard!)
  8. Design Error and the Spearin Doctrine (why your designs must actually, you know, work!)
  9. Active vs. Passive Negligence (sharing the blame, unequally, when something goes wrong)
  10. Adding an “Additional Insured” in the Professional Services Agreement: an exercise in futility!  (for those times when you have an obtuse owner- show them this!)

Are there other posts that you think should be added to this “Best of” collection?  Wish I had written a post on your pet topic?  Share below.

Photo (c) Independent Association of Businesses.

Even a text can make a contract! (law note)

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text message bubblesI’ve written many times about how you should–indeed, must–document your construction project in case there are problems or disputes later on.  Of course, you need to update the plans and specs.  But equally important, you need to document agreements to do things outside of the contract documents and also all verbal directives from the owner.

Tennessee lawyer Matt Devries recently wrote a nice blog post entitled:  LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract, discussing  how even text messages can be legally binding.  Something to remember, and learn from.  I always tell clients I’d like to see any deviations signed by all parties, but failing that, a fax or email will do.  Just don’t rely on a conversation alone.  Texts are *not* the preferred method of documenting something for the court, but they are better than nothing.

Read Matt’s post and drop him a line.  And comment below if you’ve ever considered using text messages to establish a written record of agreements.

Photo courtesy Pixabay.

Explaining Negligence in the Construction Industry (Guest post)

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Today, a guest post by Anne Roberts.  Anne Roberts is a freelance writer. She writes blog posts, how-to articles, SEO copies, and many other types of content for several websites. Anne is currently a web content writer for personal injury attorneys.  (But we like her anyway!!)

Explaining Negligence in the Construction Industry

The construction world can be regarded as one of the most dangerous industries to work in. Because of the inherent hazards that come with working on a construction or repair project, both construction professionals and laborers uphold certain standards to ensure a safe working environment.

Contractors, surveyors, engineers, project managers to employers–all have a duty of care to observe. They make sure that assessments of risks involved in any facet of construction are made. Laborers, on the other hand, benefit from the assessments by exercising preventive measures.

Still, accidents happen.

Acrobatic_Construction_Workers

Some of the most common accidents that occur in construction sites involve six-feet-or-more falls from ladders or stairs. Other accidents are caused by the failure to implement safety precautions, such as improper building of scaffolding, use of dangerous tools and unsafe machinery, and other hazardous issues.  Without proper implementation of safety precautions, working on an elevated surface may result to debilitating injuries and even death.

According to the Bureau of Labor Statistics (BLS), it has been estimated that fatal accidents involving construction workers accounted for 15 percent of all job-related deaths in the U.S.  Such injuries or deaths may not have happened if a certain construction or repair project employed safety rules or standards of care. Such occurrence is categorized as construction negligence.

Determining Liability 

When a serious accident happens, usually all parties involved are brought into the litigation, as cross-allegations of construction safety issues, construction defects, and construction administration/observation/inspection issues.  In North Carolina, an employee cannot sue his employer for a workplace accident (but instead seek a workers’ compensation recovery).  The employee can, however, bring a negligence action against any/all (other) responsible third parties.  [Editor’s Note: The parties may have rights to recover against each other if one is actively negligent and one is only passively negligent.  Otherwise, joint & several liability applies.]

To establish negligence, the injured party must prove the following four factors:

  1. The construction professionals involved have a duty of care;
  2. They breached or violated that duty of care;
  3. The breach of duty of care resulted to an injury; and
  4. The injury was the result of the construction professionals’ negligence.

[Editor’s Note:  The injured party also must not have been contributorily negligent.]

Other than in a construction or repair project site, construction negligence also happens on highway construction and post-construction efforts. Unsafe conditions during roadwork can be considered negligence, especially if workers, as well as motorists, consequently sustained certain injuries.

Even a complete building can be a source of negligence, in which the contractor or subcontractor failed to adhere to building codes. Construction defects, such as low structural integrity of the building, mechanical and electrical failure, and low-quality finishes, may lead to injuries and deaths.

Melissa again:  Thanks Anne for your post!       Readers:  Watch this space– I’m planning on posting an infographic tomorrow that will show construction accidents & related statistics.  Stay tuned.  In the meantime, please leave any questions or thoughts in the comment section, below.

 Photo of workers on bamboo scaffolding (c) Terrance TS Tam.