VOLUME 3   ISSUE 38   SEPTEMBER 19, 2014


By Bruce Jervis


The inclusion of optional additive or deductive work items in a bid solicitation can complicate the process. Bidders get confused and submit incomplete or nonresponsive bids. Project owners may be unsure regarding evaluation and comparison of bid prices.


A recent federal procurement compounded these problems. The agency included in the solicitation an optional additive work item requiring 35 days to perform. The agency also stipulated a daily rate of agency administrative costs to be applied to the bidder’s proposed performance period. The administrative cost was supposed to be used for purposes of bid price evaluation only. But, one bidder inadvertently took exception to the maximum allowable performance period. Its low bid was rejected as nonresponsive. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Supplier Did Not Have to Prove Delivery to Job Site
  • Commitment to Timely Completion Called into Question


“Once you realize you’re in a troubled project, it’s probably time to take a look at your contract-administration procedures and make sure you’re being as sharp and diligent with those as you need to be.” This is one of many pieces of advice that attorney Paul Berning offered during “How to Survive a Troubled Project,” a 90-minute webinar that WPL Publishing held last week. “We all know that if the jobs are going well and everybody’s working well together, then maybe the paperwork is not quite as official as the contract requires or is not as normal, but if you get into a troubled project, you really need to start thinking about your contract-administration obligations to make sure that you’re doing things timely and preserving your rights.” ... Read more.


Five prominent organizations within the green building community have banded together to facilitate more environmentally sustainable structures across America, but how successful will the new partnership prove to be? What will the group be doing to accomplish their objectives, and will policymakers cooperate? For some of the details about the group’s strategy and a few predictions about the partnership’s ultimate impact, click here.


There is a veritable laundry list of new features included in the latest version of the national standard for computer-aided design (CAD) -- a standard intended to help architects, constructors, and operators coordinate efforts by classifying electronic design data consistently and making information retrieval easier. One of the major changes appearing in the recently released National CAD Standard Version 6 (NCS V6) is guidance for incorporating NCS content within a building information modeling (BIM) workflow, according to the National Institute of Building Sciences (NIBS), which unveiled NCS V6 with Construction Specifications Institute. To see some of the other features in the new NCS, click here.

From Previous 3 Issues:
Volume: 3, Issue: 37 - 09/12/2014


By Bruce Jervis


“Active interference” by the project owner is a well-recognized exception to the enforceability of no-damage-for-delay clauses in construction contracts. There is a problem, however. There seems to be little agreement as to what constitutes active interference.


In the past, courts usually required some showing of bad faith or gross negligence in order to find active interference. This has changed, with an emerging majority requiring only an affirmative, intentional act by the owner that resulted in interference with the contractor’s work. No malice is required. But, the act has to be something more than a careless mistake or lapse in judgment. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Trade Conflict Was Not Active Interference by the Owner
  • Claims Court Sorts Out Recovery under EAJA


A concern that has been expressed about the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) program is that the review process can be too complex and lengthy. Well, the organization is hoping the “LEED Proven Provider” designation that the Green Building Certification Institute (GBCI) launched late last month will help alleviate this concern. ... Read more.


Public agencies may want to take a good look at some recently released results of what is believed to be the largest study of lean construction programs ever conducted in the United States. The study reports that a lean strategy enabled San Diego Community College District (SDCCD) to save an average of $900,000 per project and $13.6 million in change orders over past experience, yield an additional $7.7 million in project savings, and reduce maintenance costs by 53 percent over a three-year period. How did SDCCD manage to do this? Click here to find out.

Volume: 3, Issue: 36 - 09/05/2014


By Bruce Jervis


A basic rule of construction contract law states that a “Type I” differing site condition exists when the actual conditions in the field differ materially from affirmative representations in the contract documents. The requirement for an affirmative representation is key. Silence or failure to warn is not enough.


Once a material difference from an affirmative representation has been established, the claimant faces more challenging issues. The claimant must prove that its interpretation of the representation was reasonable; it drew logical inferences and did not leap to unfounded assumptions. And, the claimant must prove it relied on its interpretation when pricing its bid. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Lack of Affirmative Representation Defeats Site Condition Claim
  • Builder Recovers Value of Work Despite Violations of Consumer Protection Act


In the not-too-distant future, the cost of “building-integrated vegetation” (BIV) -- the use of green roofs and green walls to improve air quality and manage stormwater, among other things -- could drop significantly, according to a report that Lux Research Inc. recently released. The firm believes that if certain steps are taken, BIV costs could plunge from about $38 per square foot in 2012 to roughly $23/sq. ft. in 2017. ... Read more.


Expect Version 3 of the National Building Information Modeling Standard-United States (NBIMS-US V3) -- the first round of it anyway -- to be released by year’s end. The plan is to first release the standard in a raw, PDF-only version “with all of the content but without the planned additional extensive editorial content, way finding, and implementation guides,” Jeffrey Ouellette, vice chairperson of the project committee responsible for the standard’s development, told ConstructionPro Week (CPW). The second round, tentatively set to be unveiled during the first quarter of next year, will be the interactive website release for buildingSMART members and contain comprehensive content that includes the additional material. ... Read more.

Volume: 3, Issue: 35 - 08/29/2014


By Bruce Jervis


Authorities evaluating technical proposals on public construction procurements are tired of lengthy documents. Bulk does not necessarily equate with quality – or persuasiveness. Tight, concise proposals are the ideal.


Public project owners are attempting to enforce this ideal by imposing maximum lengths on technical proposals. But, a recent Alaska Supreme Court case illustrates the pitfalls of such restrictions. ... Read more.


Featured in this Week’s Construction Claims Advisor:

  • Alaska High Court Rules on Lengthy Proposal
  • Contractor Recovers Attorney Fees When Lien Claim Arbitrated


ConstructionPro Week has compiled for ConstructionPro Network members a list of 62 construction laws that 37 states have adopted so far this year with links provided to the enrolled documents. Members can access the table by clicking here. To sign up for a membership, click here.


For construction projects using a consolidated insurance program -- otherwise known as a “wrap” -- make sure there is adequate contract language in place to deal with such an arrangement, Sherman & Howard’s Christopher Mosley advised professionals attending a recent WPL Publishing webinar. “It is important to address wraps in your construction contracts,” he said, noting that standard form contracts are of insufficient help on this front. ... Read more.


By Paul Levin


ConstructionPro Week made a trip to the 3rd Annual Summer Construction Conference in Raleigh, N.C., Aug. 6, to listen in on the panel discussion on drones. The conference, graciously produced by Safran Law Offices and BB&T Construction Risk Services, provided a number of new perspectives on the expected upcoming use of drones in construction. ... Read more.


September 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 September 2014 addition:


When embarking upon a construction project using lean techniques, special emphasis needs to be given to the following credo: “Do not start what you cannot finish.” This is one of the key points that Roberto Arbulu, leader of the Strategic Project Solutions Inc.’s Technical Services Team, told professionals attending WPL Publishing’s “Using Lean Techniques for Measurable Productivity Gains” webinar, a recording of which recently was added to the ConstructionPro Network ( Download Library free of charge for members. “We see on every single project that we participate in the desire to start work without having everything required to finish it,” Arbulu reported. “It happens day in and day out.” As a result, lean objectives go unfulfilled. To avoid such a situation, there needs to be a “clear understanding” of four key ideas, he said. To see what these ideas are, click here.

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