VOLUME 1   ISSUE 20   SEPTEMBER 18, 2012


By Bruce Jervis


No-damage-for-delay clauses produce such harsh consequences that they have long been viewed with skepticism by the courts. Starting with the premise that these disclaimers must be strictly construed against the drafting party, courts have carved out numerous exceptions to their enforceability: active interference, bad faith, material breach of contract, unforeseen delay, delay of unreasonable duration, the list goes on.


The exceptions to enforceability are so prevalent that many consider no-damage-for-delay clauses to be of limited effectiveness. Two recent cases call that point of view into question. Last week, we reported on a case out of Illinois where a clause was enforced. Illinois law does not recognize “active interference” as an exception to enforceability. And the facts didn’t support the contention that the delay had been unforeseeable or of unreasonable duration. ... Read more.


Featured in This Week’s Construction Claims Advisor

  • No-Damage-For-Delay Clause Protected Owner against Its Own Breach
  • Suspension of Subcontractor’s Work Was Reasonable
  • Arbitration Clause in Unsigned Contract Was Binding


By Steve Rizer


Among the many steps that should be taken to minimize or eliminate the risks of green building is to ensure that green-scheduling issues are considered for all green projects, Eugene Heady, a partner in Smith, Currie & Hancock’s Atlanta office, told a group of professionals attending a webinar that WPL Publishing hosted Sept. 13. During the event, entitled “The Hidden Risks of Green Buildings,” he and George DuBose, vice president of building consulting services for Liberty Building Forensics Group in Orlando, Fla., addressed a target audience of engineers, architects, owners, contractors, subcontractors, design professionals, and construction law attorneys.


Heady advised webinar attendees to show milestones on their schedules for Leadership in Energy and Environmental Design (LEED) and other green-certification requirements. “The project has to apply for LEED pre-certification during the design process. That’s an important milestone. Final LEED certification can lag completion of construction by 6-12 months or longer if using enhanced commissioning. And it would be at least 12 months if you’re looking for Energy Star certification, which is not issued until a full year of energy-use data has been compiled per building. So, think about these milestones when you’re putting together your project schedules. Also, onsite inspection of completed construction is required if you’re registered for a Green Globes rating, so you want to get that on the schedule.” ... Read more.  


By Steve Rizer


New Digital Practice documents from the American Institute of Architects (AIA) are expected to create a project-wide process and related protocols for working with building information modeling (BIM) and for the exchange and management of other digital data. The organization’s updated documents also are expected to help prompt project participants to discuss and address many issues that may arise throughout a project and thereby reduce barriers that often hinder BIM adoption.


Currently, the updated Digital Practice documents consist of the following: AIA Document E203–2012, Building Information Modeling and Digital Data Exhibit; AIA Document G201–2012, Project Digital Data Protocol Form; and AIA Document G202–2012, Project Building Information Modeling Protocol Form. The public comment period on the draft documents began last month and will close Sept. 24. ... Read more.





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