VOLUME 3   ISSUE 31   AUGUST 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.

From Previous 3 Issues:
Volume: 3, Issue: 30 - 07/25/2014


By Bruce Jervis


It has long been controversial: Should design professionals be directly liable to construction contractors for deficiencies in the drawings and specifications? There are arguments on each side. On one hand, contractors necessarily rely on the design documents when bidding and performing the work. And, the architect or engineer knows there will be reliance on these representations. On the other hand, the design professional contracts with the project owner, not the constructors. The designer’s responsibilities – and liabilities – are to the owner.


The Texas Supreme Court recently came down on the latter side of this argument. Contractors cannot recover in negligence from design professionals for economic losses caused by errors in the drawings and specifications. The court said risk and responsibility on construction projects is customarily allocated by a chain of contracts. Liability in negligence to non-contracting parties would upset this carefully negotiated balance. A contractor “must look to its agreement with the owner for damages if the project is not as represented.” ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Contractor Can’t Sue Designer for Drawing Errors
  • Settlement Agreement Should Not Have Been Disclosed


A pair of recent developments taking place at the federal level could change the collective contribution that public-private partnerships (P3s) make to the U.S. construction industry for many years to come. One of those developments is the introduction of President Obama’s Build America Investment Initiative, which is designed to expand the market for P3s. In addition, a coalition of several high-profile construction groups has drafted and presented for congressional consideration a proposal whose partial goal is to grow federal P3s while ensuring that small businesses can work on such projects “without fear of non-payment.” ... Read more.


When senior leaders in construction projects support the use of the earned value management technique, and when that technique is implemented properly, “it enables owners and contractors alike to have a strong command of performance and productivity problems, and mitigates the need for disputes.” This is one of the key messages that Synchrony Principal Laurie Bowman emphasized during a presentation that he helped deliver at AACE International’s Annual Meeting last month in New Orleans. But, what does “implemented properly” mean? Click here to read some of what he believes makes for an appropriately carried out earned value management system.


August 2014 Download Library Addition
As new webinar recordings are made available to the ConstructionPro Network free member Download Library on a monthly basis, ConstructionPro Week will provide a brief summary of each event for the benefit of its readership. Here is the summary for the August 2014 addition:


Significant improvement in construction productivity does not simply require changes in willingness and ability at the crew level; it requires changes in leadership at every level, Michael Casten, founder of Construction Concepts, told professionals attending WPL Publishing’s “Traditional Productivity Improvement Techniques” webinar, a recording of which recently was added to the ConstructionPro Network ( Download Library free of charge for members. ... Read more.

Volume: 3, Issue: 29 - 07/18/2014


By Bruce Jervis


It is common, almost standard, for public works construction contracts to stipulate an administrative claim resolution procedure. A contractor must initially submit a claim to an agency official. If the agency denies the claim, the contractor may appeal to an administrative board, whose decision may subsequently be reviewed by a court.


A Vermont highway contractor recently argued it could skip this wasteful process and take its claim directly to court. The contractor said the initial claim decision is made by agency employees, who lack objectivity and are not required to conduct a full fact-finding hearing. The appeals board then deferentially reviews the agency’s incomplete and biased findings of fact, essentially rubber stamping the agency decision. The contractor contended this was a denial of due process of law. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Administrative Claim Procedures Did Not Deny Due Process
  • Subcontractor Recovers Lost Profit Based on Own Testimony


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.


With Version 4 of the Leadership in Energy and Environmental Design (LEED v4) rating system, “there are more requirements for commissioning the electrical distribution system and plumbing systems; make sure they are understood and scoped properly.” This was one of the key pieces of advice that, during a recent interview with ConstructionPro Week, Green Building Services Inc. Principal Richard Manning offered for those professionals striving to achieve commissioning objectives via LEED v4. LEED v4 commissioning is a hot topic, as projects only will be able to be registered under LEED v2009 until next June. Click here to see what else he suggested for meeting LEED v4 commissioning goals.

Volume: 3, Issue: 28 - 07/11/2014


By Bruce Jervis


When parties commit to binding arbitration of their contract disputes, they assume the arbitrator or arbitrators will apply the terms of the contract in a lawful manner. But, is the arbitrator required to do so? The answer, surprisingly, is not necessarily.


An arbitrator in a recent case refused to enforce straightforward waiver and release language against a subcontractor. The arbitrator reasoned that the failure to submit the referenced progress payment requisition into evidence rendered the scope of the release ambiguous. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Arbitrator Did Not Manifestly Disregard Waiver and Release Language
  • Government Claim against Contractor Asserted Too Late


If the design professional in a construction project approves a shop drawing that is contrary to the prime contract specifications, does the owner have a claim against the design professional either for negligence or breach of contract? This is one of several questions that Sherman & Howard LLC’s Stephen Hess fielded during the “Q&A” segment of a recent WPL Publishing webinar. To see how he responded to the inquiry, click here.


What tangible effect, if any, will Construction Specifications Institute’s (CSI) recent endorsement of the digital practice documents that American Institute of Architects (AIA) published last year have on the design and construction industry? Will use of the documents and building information modeling (BIM) technology in general soon skyrocket? Click here to read what a pair of AIA officials had to say on the matter during an interview with ConstructionPro Week (CPW).

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