VOLUME 3   ISSUE 34   AUGUST 22, 2014


By Bruce Jervis


It is understandable that local government entities would like their public works projects to generate jobs for local residents. The projects are frequently funded, at least in part, by local taxpayers. An out-of-town contractor with out-of-town employees is a galling sight. The public procurement laws, however, with their emphasis on open competition, generally prevent hometown favoritism.


Some communities are trying a new tactic. They create an apprentice training program, or participate in an existing program, to train local workers in construction trades. They then stipulate than any bidder on a public works contract must employ a certain number of recent graduates from that program. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Apprenticeship Bid Requirement Struck Down
  • Cessation of Work Triggered Payment Bond Claim Period


In the last couple of years, a clear trend has emerged regarding states’ efforts to create new laws addressing construction projects. It is a trend that an Associated General Contractors of America (AGC) spokesperson brought up several times during a recent interview about recent construction lawmaking at the state level, and it is a trend that ConstructionPro Week (CPW) noticed when compiling a list of 62 new construction laws that states have adopted so far this year. What is this trend, and will it continue? Click here to find out.


During WPL Publishing’s recent “Pricing, Preparation, Support and Analysis of Lost Productivity Claims” webinar, presenter R. Brent McSwain of Sage Consulting Group reported that “some of the biggest problems we see from contractors is [that] when they price change orders, they’re pricing change orders based on productivity rates that they carried in their estimates.” ... Read more.


Tell us how you think drones can be used on your project ... besides dousing millenials or putting out fires. Click here.

From Previous 3 Issues:
Volume: 3, Issue: 33 - 08/15/2014


By Bruce Jervis


Sole-source or proprietary specifications are generally prohibited on public construction contracts. Private project owners are free to stipulate the precise product they want incorporated into their property. Public project owners are supposed to maintain open competition, specifying functional characteristics, not brand name or source of supply. But, public owners may also desire a particular product. What are they to do? In many cases, they write a disguised sole-source specification.


On a recent federal project, the contract specified an asphalt mix batched at a “local” source with at least five years of experience furnishing product to the federal facility in question. The contractor was entitled to propose its own mix design only if no such supplier existed. Not surprisingly, there was one qualified source. The contractor, which failed to protest the terms of the specification prior to bid submittal, was not allowed to propose an alternative source. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Supplier’s Notice Effective Prior to Delivery of All Materials
  • Restrictive Specification Enforced Against Contractor


For Associated Builders and Contractors (ABC) and its membership, the summer’s developments in construction law have brought forth mixed blessings. On the positive side for ABC, President Obama has signed into law a bill (H.R. 803) that is expected to help cut into the work-shortage problem across the industry. In addition, an appeals court has struck down an ordinance in Massachusetts requiring apprentice training programs. However, the group has expressed disappointment over a couple of other recent moves made within the Executive Branch. ... Read more.


By Paul Levin


Aerial photography is the obvious first reaction when you ask a contractor about the use of drones in construction. This is born out from the results of a short survey we conducted last week. Technology advances, ready access and low entry cost have made the photography aspect a practical reality; and the industry is finding other creative uses as well. However, users face major roadblocks from the Federal Aviation Administration (FAA). So the question is: Where are we headed with the use of drones in construction?  When and how will we get there? Let's start with a review of our survey results. ... Read more.

Volume: 3, Issue: 32 - 08/08/2014


By Bruce Jervis


Design professionals have long sought to control their liability exposure. The argument has been that their potential liability is disproportionate to the compensation they receive and the role they play on a construction project. They have received a sympathetic hearing in some quarters. In particular, the engineering disciplines have gained increasing acceptance of contractual limitations of liability. However, a recent ruling in California will have to be viewed as a setback.


The California Supreme Court ruled that an architect can be held liable to future homeowners, with whom it had no contract, for the negligent design of residential property. The ruling applies to architects who provide comprehensive design services directly to developers. The court reasoned that future homeowners are necessarily reliant on those architects. The court distinguished a case in which a geotechnical engineer furnished services to a site preparation subcontractor. The third-party commercial property owner was in a position to obtain independent technical input. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • California High Court Expands Architect Liability
  • Installer Not Responsible for Damage to Stored Materials


One of the 14 research projects recently receiving funding support from the U.S. Department of Energy (DOE) to improve the energy efficiency of America’s buildings involves a “hybrid energy modeling method” that Lawrence Berkeley National Laboratory (LBNL) and California Energy Commission (CEC) are developing (ConstructionPro Week/CPW, Aug. 1, 2014, “Several New Technologies Expected to Save Significant Amounts of Energy in Buildings”). But, how will this method work, and in what unique way will it benefit the buildings community? During a recent interview with CPW, Tianzhen Hong, computational research scientist within the Simulation Research Group of LBNL’s Building Technology and Urban Systems Department, provided an in-depth response to this inquiry. ... Read more.


How much change in a construction project is necessary before a contractor enters a cumulative impact condition? While there is no sweeping, hard-and-fast, industry-wide answer to this question, William Ibbs and other researchers have come up with a “rule of thumb” for determining when such a condition is reached -- a condition in which, as Ibbs put it during a WPL Publishing webinar he recently co-presented, “you have so many changes that you cannot really measure the full impacts of each change on a case-by-case, discrete basis.” To read what this rule of thumb is, click here.

Volume: 3, Issue: 31 - 08/01/2014


By Bruce Jervis


Project owners, both public and private, frequently contractually disclaim liability for costs caused by delay and disruption, regardless of the cause. These no-damage-for-delay clauses can have serious financial ramifications for contractors. As one-sided exculpatory clauses, they are narrowly construed by the courts, which have carved out several exceptions to their enforceability.


The most controversial exception is “active interference” by the project owner with the contractor’s means or methods of construction. What does this mean? What makes interference active? ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • No-Damage-For-Delay Clause Did Not Apply to Owner’s Active Interference
  • Two Separate Claims Asserted Against Architect


During WPL Publishing’s recent webinar on differing site conditions in construction, one of the big questions that popped up in the “Q&A” portion of the program centered on what constitutes a reasonable level of investigation -- and then discovery -- on the part of a contractor. What have the courts said on this issue? What is the best strategy for convincing a court or jury that the contractor did indeed act in a reasonable manner? To read how Sedgwick LLP attorneys Marilyn Klinger and Robert Shaffer addressed these concerns, click here.


Research and development into new, ultra-efficient HVAC systems, enhanced foam thermal insulation, and equipment for modeling energy in buildings received a boost last week when the U.S. Department of Energy (DOE) revealed its intention to invest about $14 million in R&D for these and a dozen other technologies that the agency believes will save significant amounts of energy in commercial buildings and other structures. ... Read more.


By Paul Levin   


Drones have been demonstrated to be capable of taking high-resolution aerial photos and videos of construction sites -- and are expected to find other applications, including inspection and transporting materials. ConstructionPro Week seeks your input on these and other uses for drones on construction sites. Please click here to take the survey


Respondents will be able to access the survey results and receive future coverage of drone use research. You are welcome to leave comments here.

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