VOLUME 3   ISSUE 51   DECEMBER 19, 2014


Happy Holidays!!!


The staff at WPL Publishing would like to wish you and your loved ones a very happy and safe holiday season!


By Bruce Jervis


Most contractors on federal construction projects are at a significant disadvantage in disputes with the agencies with which they do business. The federal government has such a vast array of personnel and resources that only the largest private companies can hold their own.


Statutes such as the Contract Disputes Act and the Equal Access to Justice Act level the field to a certain extent. However, one area where the disparity of power remains evident is the “discovery process” – the pre-hearing disclosure of information and documents. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Veterans Affairs Sanctioned for Withholding Documents
  • Owners Forced to Litigate with Architect and Arbitrate with Builder


It will be interesting to see what kind of impact an appeals court ruling in Moorefield Construction v. Intervest-Mortgage Investment Co. will have on the construction industry if California’s Supreme Court does not grant a petition for review or de-publish the case. At least in the eyes of a pair of subcontractor groups, if the state’s high court does not take such action, “the general public policy and California constitutional right to mechanic’s lien stated in Wm. R. Clarke Corp. v. Safeco Ins. Co. … would be irreparably harmed.” ... Read more.


Expect phablets -- mobile devices that blend various features of smartphones and tablet computers -- to play a more prominent role in helping construction professionals manage their projects. This is one of several trends in construction technology that Bridgit Inc. believes will emerge next year. To see what else Bridgit forecast in its latest report, entitled “Where We’re Headed: Construction Technology Trends for 2015,” click here.

From Previous 3 Issues:
Volume: 3, Issue: 50 - 12/12/2014


By Bruce Jervis


It is frequently stated that a contract speaks for itself. Answers regarding contract interpretation should be found within the four corners of the contract. If a contract is ambiguous, it may be necessary to rely on extrinsic evidence. If not, rely on the express language of the contract.


The highest court of New York recently interpreted the insurance provisions of a construction contract. There had been no ruling that these terms were ambiguous. The majority of the Court of Appeals read the express language of the insurance provisions and came to a logical conclusion. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Project Owner Was Not an Additional Named Insured on Contractor’s CGL Policy
  • Substantial Completion Did Not Trigger Payment Obligation


By Paul Levin


Pricing of claims and change orders falls into two categories: forward pricing, where the price and time is negotiated before the work is done; and post pricing -- pricing and schedule adjustments made during or after performance of the work. In applying either type, the pricing elements of the claim itself are the same and include the direct cost of performing the changed work, impact and/or delayed performance costs, indirect costs, and markups for overhead and profit. Many different methodologies have been used to successfully price claims. What is important is that the pricing elements are carefully calculated and substantiated. ... Read more.


By Paul Levin


On Wednesday, the Federal Aviation Administration (FAA) granted exemptions to two petitions from Woolpert Inc. and one each from Clayco Inc. and Trimble Navigation LTD for the use of unmanned aircraft systems (UASs), such as drones, in aerial surveying and mapping activities on construction sites. The Woolpert and Trimble exemptions involved fixed-wing aircraft, while Clayco’s request was for a multirotor craft. ... Read more.


Of all the recent congressional activity to promote more energy-efficient structures across America, two developments stand out as perhaps having the biggest potential to impact the green-buildings community. To see what these proposals are and how they are expected to fare before the 113th Congress adjourns Jan. 3, click here

Volume: 3, Issue: 49 - 12/05/2014


By Bruce Jervis


We’ve seen it before -- a contract clause that states the parties “may” arbitrate their disputes. A federal appeals court recently addressed a dispute resolution provision that said the parties “shall” submit any dispute to mediation. And, if mediation is unsuccessful, the parties “may” submit the dispute to arbitration.


After unsuccessful mediation of a differing site condition claim, the contractor demanded arbitration. The project owner refused. The contractor attempted to compel arbitration. The appeals court ruled that while mediation was mandatory, arbitration was permissive. The owner did not have to arbitrate with the contractor. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Subcontractor Could Enforce Lien without Suing Prime
  • Mediation Was Mandatory, But Arbitration Permissive


Designers will have more flexibility to innovate and facilitate more energy-efficient buildings across America now that the outcome-based provision in the 2015 International Green Construction Code (IgCC) has been approved, but it remains to be seen just how much influence the new provision will have across the industry. ... Read more.


When it comes to building information modeling (BIM) technology, building owners across the United States by and large “are not engaged quite yet,” buildingSMART alliance Executive Director Deke Smith told ConstructionPro Week (CPW). This is one of several interesting comments he made in the wake of a new McGraw Hill survey indicating that while 88 percent of owners in the United Kingdom are formally measuring the impact of BIM, only 18 percent of their U.S. counterparts are doing so. ... Read more.

Volume: 3, Issue: 48 - 11/26/2014


The staff at WPL Publishing would like to wish you and your loved ones a very Happy Thanksgiving!


By Bruce Jervis


We have previously discussed the importance of the substantial completion milestone. It is probably the most significant milestone in a construction project, arguably more important than final completion and acceptance. A recent Nebraska case reiterated the importance of this milestone.


The construction contract called for the project owner’s consulting engineer to certify substantial completion. But, the contractor never requested certification, and the engineer never issued it. The date of substantial completion became crucial because it determined whether the owner could assert a timely claim against the contractor for allegedly noncompliant work. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Substantial Completion Not Altered by Punch List or Warranty Work
  • Contractor Decertified without Due Process

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