Tag Archives: engineer

ConsensusDOCS- are they an improvement over AIA construction contracts?

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Have you had occasion to use the (relatively) new ConsensusDOCS? Having just completed my manuscript for the North Carolina Construction Law seminar I’m speaking at in May, I’ve been spending a lot of time comparing the American Institute of Architect’s standard contract general conditions, the AIA A201 (2007) to the ConsensusDOCS 200 (2007) and the Engineering Joint Contracts Document Committee (EJCDC) standard general conditions of the contract, C-700 (2007).

I haven’t yet seen litigation over the ConsensusDOCS, so how courts will interpret its provisions remains to be seen. One major difference: the ConsensusDOCS do diminish some of the architect/design professional’s role on the project.

For example, in the change order process, instead of the architect being involved in the contract price and time adjustment (see AIA A201 Section 7.2.1), the ConsensusDOCS 200 calls for the owner and contractor to negotiate in good faith. No mention is made of the design professional’s role. (See 8.1.2).

If you’ve had occasion to work under the ConsensusDOCS, drop me a line and tell me the advantages and disadvantages over other form contracts.

NC Construction Law Seminar in Greensboro

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Excuse the little self-promotion here, but if you want a quick way to learn more about construction issues in North Carolina, I’m speaking at a seminar on May 7, 2010 in Greensboro, NC.

The seminar topics include:
* Understanding Liens, Bonds, and Payment Issues
* Risk Transfer (including insurance and indemnity issues)
* Making Changes & Resolving Disputes during the Construction Process
* Contracts and Subcontracts on Public Projects
* Recent Bankruptcy Cases Impacting Contractors’ Lien Rights

The seminar qualifies for 6.0 PDHs for NC Engineers, 0.6 CSI CEUs, and NC Attorney CLE credit is pending.

Joining me in speaking are Eric Biesecker, Jennifer Maldonado, and Brian Edlin. For more details or to register, go to Half Moon Seminars.

Risks in designing for LEED certification

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“Green” building is a hot topic for construction professionals, and the coveted LEED certification (Leadership in Energy and Environmental Design) is the gold standard in demonstrating a commitment to environmentally friendly building.

According to the US Green Building Council which developed the LEED system, LEED is “an internationally recognized green building certification system, providing third-party verification that a building or community was designed and built using strategies aimed at improving performance across all the metrics that matter most: energy savings, water efficiency, CO2 emissions reduction, improved indoor environmental quality, and stewardship of resources and sensitivity to their impacts,”

Because LEED certification is relatively new, the legal implications of designing to obtain a specific LEED certification are still being hammered out. Potential risk in designing to a specific LEED standard is the failure of a building, once built, to meet the green criteria it was supposed to meet.

Case in point: Charlotte’s ImaginOn, a Children’s Theatre and Public Library facility. Designed as one of Charlotte’s first LEED buildings, ImaginOn is not meeting the green requirements it was designed to meet. This is due, in large part, to the popularity of the Center, which has led to an increase in operating hours and, of course, associated energy costs.

As noted in the Charlotte Observer, “the episode illustrates gaps between energy-saving potential and actual performance.”

Whether or not the increased hours should be considered as foreseeable, questions remain. Should such a situation be considered a breach of warranty? A changed condition? Or a little of each?

Until these matters get resolved in the Courts, it is wise practice to design with LEED goals but not certification or performance guarantees. All parties should recognize that circumstances may change which will prevent LEED certification or which will in other ways limit or eliminate any energy efficiencies which are anticipated.

Update:  For more risks in designing for LEED certification, check out my post: Legal risks in designing a Construction project for LEED certification (take 2)

 

Failure to Coordinate in Design-Bid-Build case costly mistake

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In a recent Business Court decision, an architecture firm was hit with a $2.3+ million judgment stemming from the design and construction of the kitchen exhaust and HVAC ductwork systems in the Charlotte Bobcats Arena.

The project was a “fast track” project, and the architecture firm claimed they were only contracted to provide diagrammatical drawings of the arena’s ductwork system. Subcontractors on the project sued for their cost to perform extra work to remedy alleged design deficiencies. Post-trial relief is currently being sought by the architectural firm (including a motion for judgment notwithstanding the verdict, a new trial, or a new trial on the damages issue).

Whether or not such post-trial motions are granted, however, the case raises the very real issue as to architectural responsibility versus contractor coordination responsibility, especially in fast-track projects. This case highlights the risks to architects in failing to make their responsibilities and contractual limitations explicitly clear to both owners and contractors. The case also highlights the need to explicitly review shop drawings for coordination issues that might be present.

The case is Hunt Construction Group Inc. et al. v. City of Charlotte, North Carolina, and Ellerbe Becket Inc., case number 08-11915, in the Mecklenburg County Superior Court.

Handling Threats of Contract Termination in the Construction Context

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The threat of a contract termination, especially one “for cause” as opposed to “for convenience” , is something that strikes terror in the heart of many contractors.  The request by an owner to terminate for cause is something that must be handled carefully by the design professional/contract administrator.  A misstep by any party can cost untoward damages relating to contract termination in the construction context.