Volume: 6, Issue: 11 - 03/17/2017

 

By Bruce Jervis

 

Second place bidders frequently look for ways to displace low bidders. The most common tool is a protest that the low bid is not responsive to the solicitation or the low bidder is not responsible. Two California contractors took the challenge to another level and the case went to the state’s highest court. Read more.


Volume: 6, Issue: 10 - 03/10/2017

 

Last week in our blog highlights, we announced the availability of a construction productivity survey by the McKinsey Global Institute (MGI).  This week we take a closer look at the survey and the 168-page report. The survey was international in scope involving more than 75 MGI employees from eight offices worldwide. In addition, the MGI staff consulted with more than 45 internationally known productivity experts, consultants, academics, economists, researchers and practitioners, including AGC’s Ken Simonson, Lean Construction Institute founders Greg Howell and Greg Ballard, productivity expert John Borcherding of the University of Texas and Stanford’s Paul Teicholz. 

 

MGI surveyed 5,000 construction-industry CEOs representing asset owners, engineering and construction firms, suppliers and other institutions such as construction consulting firms, academics, and industry associations. Participants were asked to rank the relative importance of root causes of low productivity, and indicate what their companies were doing to address them.  Read more.


Volume: 6, Issue: 9 - 03/03/2017

 

By Bruce Jervis

 

Individuals involved in civil litigation are entitled to represent themselves, to appear pro se. They are not required to hire a licensed attorney in order to participate in the judicial process. What happens, however, when a party to litigation is a group of individuals or an organized business entity? Can a non-attorney member or proprietor represent the broader entity? Read more


Volume: 6, Issue: 7 - 02/17/2017

 

 By Bruce Jervis

 

Can a public contract clause bind a contractor even when the clause is not stated or referenced in the contract? The answer is yes, if the clause is considered mandatory. Lower-level employees cannot alter the procurement process by accidentally omitting important clauses. Read more.


Volume: 6, Issue: 6 - 02/10/2017

 

Last week’s article on “Pay-if-Paid” clauses was one of our most-read construction law articles in recent weeks. Thirteen readers weighed in with their responses, from a simple “Read and understand your contract” to a couple of 200+ word commentaries. In short, from the general contractor’s perspectives, GC’s feel they are not banks on hand to finance the project, and if the owner doesn’t pay them, they shouldn’t pay the contractor. Subcontractors, on the other hand, often are the ones taking the most risk and have the most out-of-pocket expenditures. Read more.


Volume: 6, Issue: 5 - 02/03/2017

 

By Bruce Jervis

 

The enforceability of “pay-if-paid” clauses in subcontracts has been litigated extensively. The clauses are controversial because they purport to shift the risk of project owner nonpayment from the prime contractor, which has a contract with the owner, to subcontractors, which do not. Many feel this is unfair and reflects nothing more than the superior economic leverage of prime contractors over their subs. Read more.


Volume: 6, Issue: 4 - 01/27/2017

 

While the root cause of delays may vary, disputes invariably arise as to the excusability, compensability and duration of the resulting time impact.  If a delay is due to contractor-caused problems, it may result in costly liquidated damages. If the owner is responsible, the contractor may be entitled to a mix of direct, overhead and impact costs.  On larger projects, thousands, if not tens of thousands, of dollars per day may be at stake.  

 

Traditionally, concurrent delays by the owner and contractor result in non-compensable time extensions.  A recent dialogue on an AACE forum presented a situation where a time extension was granted for an owner-caused delay but an act of God subsequently occurred during the period.  This brought up several points of discussion. Read more.


Volume: 6, Issue: 2 - 01/13/2017

 

By Bruce Jervis

 

Public project owners do it all the time: They provide detailed subsurface site information to bidders and then contractually disclaim responsibility to the successful bidder for the accuracy of that information. Read more.


Volume: 5, Issue: 48 - 12/16/2016

 

By Bruce Jervis

 

Many construction contracts, particularly for public works, include a limitation on subcontracting, effectively requiring the prime contractor to perform a certain percentage of the value of the contract with its own forces. This encourages hands-on management of the project by the prime. It also discourages the “brokering” of the work, bidding by entities that bring capital and bonding capacity, but little else. Read more.


 

The ConsensusDocs Coalition recently announced the first set of new contract documents, part of a major update initiative to reflect ongoing industry trends towards collaboration and new project delivery and financing methods. The trends and developments include lean construction, building information modeling (BIM), sustainable principles in design and construction, new construction techniques and technologies, increased transparency, and recent legal and insurance developments.  Read more.


 

 

 


CONSTRUCTION CLAIMS ADVISOR
VOL. 15   ISSUE 5 - MARCH 2017

 

By Bruce Jervis

 

Second place bidders frequently look for ways to displace low bidders. The most common tool is a protest that the low bid is not responsive to the solicitation or the low bidder is not responsible. Two California contractors took the challenge to another level and the case went to the state’s highest court. Read more.


 

A contract payment schedule required the cost of stipulated incidental items to be carried in the stated pay items. A contractor could not treat an incidental item as a separately measured, independent pay item.


 

A second low bidder cannot sue the low bidder for wrongful interference with the competitive bidding process. The competitive bidding statutes, which do not authorize recovery of monetary damages by disappointed bidders, are adequate to protect the public. Creation of a private cause of action would be ill advised.


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