VOLUME 4   ISSUE 9   MARCH 06, 2015


By Bruce Jervis


A recent report on a project owner’s ability to reach contract retainage without any formal determination of contractor default prompted considerable comment. Now, another case illustrates the potential for owner abuse of retained contract payments.

Retainage is intended to protect project owners against mechanic’s liens and deficient contractor performance. But, it can also provide owners with a great deal of leverage in disputes with contractors. This creates a temptation for abuse.   ... Read more.


Featured …


Construction Law: An Introduction for Engineers, Architects, and Contractors

Gail S. Kelley
John Wiley & Sons, Hoboken, NJ, ISBN 978-1-118-229033


Success in construction requires more than design, technical and managerial skills; one must be fully conversant with numerous aspects of construction law in order to fully understand one’s rights and responsibilities.


From the perspective of the typical owner, contractor or subcontractor, the primary scope of knowledge needed to achieve a built project is fully contained within the boundaries of the construction contract documents (plans and specifications), including regulations, codes and other documents referenced in the contract. Knowledge of contract law is the primary driver for determining the risks and responsibilities of building the project and resolving any disputes. This has served as the foundation of this reviewer's own writings of books and periodicals about construction contracts and construction law. But there’s more to “construction law” than knowledge of the principles of contract law, in which Gail Kelley’s compact tome succeeds in teaching. Kelley covers basic legal principles, operational processes, contract administration and the roles of the various players as well.  Read more...


Building information modeling (BIM) is a controversial topic. BIM champions have been extolling its virtues of design efficiency, construction cost and time savings, and maintenance economies for owners. Yet BIM has not become as widely used as expected in the United States.  In the UK, for example, the government has put into place standards with the goal of all public construction utilize collaborative BIM 100%, with all project and asset information, documentation, and data being electronic by 2016-2017.  So what seems to be the issues holding BIM back?  With the 2015 BIM Experience survey launched this past month, ConstructionPro Network set out to see what it could learn. Read more...

From Previous 3 Issues:
Volume: 4, Issue: 8 - 02/27/2015


By Bruce Jervis


Payment bonds guarantee the payment obligations of a construction contract. An unpaid subcontractor must prove entitlement to payment under the subcontract as a prerequisite to recovery against a payment bond, or so it is usually stated. A recent Oregon case, however, calls this maxim into question.   ... Read more.



WPL Publishing Co. first covered 3D printing in 2008 about a service that transformed satellite images into physical models printed on a Z Corporation 3D printer. In January 2010, John Jurewicz reviewed five then-available printers creating scale models of buildings in plaster or plastic. “The reasons for using these devices center around verification of design and are moving into construction coordination as they become more affordable,” says Jurewicz. “They evaluate constructability options, eliminate costly mistakes, trigger unexpected ideas, drive quality, and improve collaboration among engineering and the construction team,” he added.


For construction, 3D printers hold much more promise than printing scale models. Over the past few years, 3D printers have made significant advances, being able to create objects in a range of... Read more.


A 2012 study by Paul Teicholz of Stanford University found that U.S. construction productivity has continued to decline over the past 20 years, despite various advancements in methods, technology and delivery methods. Teicholz listed the various reasons, which have been well documented over the years, as primarily many small firms doing small pieces of the project, fragmentation of the construction team, inefficient use of data and documents, and the competitive nature of procurement systems. Teicholz goes on to describe potential sources of positive change, including building information modeling (BIM)... Read more.

Volume: 4, Issue: 7 - 02/20/2015


By Bruce Jervis


Expert opinion is almost always required to prove professional malpractice on the part of an architect or engineer. It is impossible to show that a defendant failed to meet the standards of care of the profession without establishing those standards and the defendant’s deviation from the standards. A recent case from New Jersey, while not addressing the admissibility of expert opinion at trial, considered the related issue of establishing the merit of a malpractice claim against an architect. Read more...





It is important to be “very, very careful” when choosing a forensic scheduling methodology because once the choice is made, there may be no going back. The choice that the forensic scheduling analyst makes at the outset may be an irrevocable choice, especially if you’re working on a contract that’s covered by the federal government or one of the state false claims acts. That is because changing the method during the claims analysis, or during the process of a dispute, rather, may lead to different conclusions, and it may cause the owner, if they’re a government agency on the other side, to file a false-claim allegation against your client. Read more...


This past Sunday, the Federal Aviation Administration (FAA) has issued proposed new rules for drones that will loosen up current restrictions on commercial use. Currently, companies that want to take aerial photos of a project are required to get an exemption. Read more...


This past January, ConstructionPro Network ran an article about photos for project documentation and claims support. (See Construction Photography Best Practice: Progress Photos – The Ultimate Expert Witness.) We received several comments and have since conducted more research in trying to locate specifications that address specifics of photos. Here’s what we uncovered: Read more...

Volume: 4, Issue: 6 - 02/13/2015


By Bruce Jervis


Construction contracts usually allow the project owner to retain a portion of each progress payment, typically 10%, until completion of the work. The purpose is to protect the owner against incomplete or deficient work. This retainage, which can accumulate to a substantial sum, provides the owner with more than just protection. It also gives the owner significant leverage in a dispute with the contractor.


A public project owner in California delivered a written notice of default to its contractor. The contractor strongly contested the allegation of default. The owner ignored these protests and accessed the retained funds for the purpose of bringing in a replacement contractor ... Read more.


Most often, a disputed change order request or claim for extra costs on a construction project will require one or more negotiation sessions between the contractor and owner to arrive at the final cost and time impact. Negotiation offers the last and best opportunity to settle a dispute without resorting to arbitration or litigation.


Before going into a negotiation meeting, it is important to establish a strategy -- the framework from which the topics to be negotiated will be approached. Read more...


In a recent Client Alert, construction law firm Smith Currie & Hancock LLP reminds us of President Obama's Executive Order (EO) protecting employees of federal contractors and subcontractors with contracts in excess of $10,000 against discrimination on the basis of sexual orientation and gender identity.  Under the regulations issued to implement the EO, employers that enter into or modify a federal contract or subcontract on or after April 8, 2015 will need to ensure that they are in compliance with the new requirements.  Employers need to take the following steps: ... Read more.


Have you encountered or used building information modeling (BIM) on any of your projects?  Have you considered its use but backed off?  Are you interested in BIM but don't know where to begin?  
BIM seems to be highly regarded by those who have made the transition. Owners cite facility management benefits in addition to lower costs.  Contractors are finding benefits in improved coordination and scheduling with less claims and change orders. Architects and engineers find BIM allows projects to be completed faster while making it easier to make design changes.  But BIM may not be suited for all projects, or all construction professionals.  We here at ConstructionPro Network are interested in your feedback, no matter where you are on the BIM scale.  Please take a few minutes to complete our BIM Experience survey.  Respondents will also receive a 20% discount preference for the BIM Roadmap 2015 webinar series starting in March. 

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