VOLUME 3   ISSUE 30   JULY 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.

From Previous 3 Issues:
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).

Volume: 3, Issue: 27 - 07/04/2014


Having trouble finding that recent ConstructionPro Week (CPW) article examining the issue of whether nonpayment of subcontractors should be a crime? Can’t remember when CPW ran that story on the states that are expected to adopt design-build legislation this year? Well, to make it easier for you to find the article you’re looking for, CPW has created a directory of all the headlines -- categorized by subject area with links to the articles -- that WPL Publishing has posted onto its ConstructionPro Network (CPN) website since July of last year. 


Embedded within each headline is a link to the corresponding CPW article. For most articles, extended coverage is available to CPN members when they log in at For each listed Construction Claims Advisor commentary, CPN members also can access the related case summary (including case citation, summary of the ruling, and other information) at the CCA webpage. To sign up for a CPN membership, click here.


Here are some of the subject areas appearing within the directory and a link for accessing the headlines:


* Changed Work
* Claims Administration and Resolution
* Pricing and Payment
* Scheduling and Delay
* Subcontractors and Suppliers


For the Construction Claims Advisor portion of the directory, click here.


* Alternative Dispute Resolution

* Change Orders

* Contracting
* Expert Advice
* Joint Ventures


For the Construction Law portion of the directory, click here.


* Commissioning/Retro-Commissioning
* Cost Effectiveness
* Energy Efficiency
* LEED/Certifications/Standards
* Green Products/Technologies


For the Green Building portion of the directory, click here.


* BIM Implementation/Promotion of Use

* Cloud Computing

* Facility Management
* Levels of Development
* Standards


For the BIM portion of the directory, click here.


* Cost Estimating
* Expert Advice

* Lean Construction
* Productivity/Inefficiency
* Scheduling


For the Project Controls portion of the directory, click here.

To access the directory of CPW articles published from July 2012 through June 2013 (CPN's first year of operation), click here.


NOTE: ConstructionPro Week will resume its regular coverage of developments taking place within the construction community next week.

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