Table of contents for Smith, Currie & Hancock LLP's common sense construction law : a practical guide for the construction professional / edited by Thomas J. Kelleher, Jr.

Bibliographic record and links to related information available from the Library of Congress catalog.

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CONTENTS
PREFACE
AUTHOR BIOGRAPHIES
1 THE LEGAL CONTEXT OF CONSTRUCTION
I. Introduction
II. Contract Law
III. Breach of Contract
IV. Implied Contract Obligations
V. Evolution of Construction Law
VI. Torts
 a. Intentional Torts
 b. Negligence
 c. Strict Liability
VII. Statutory and Regulatory Laws Affecting Construction
2 ALTERNATIVE CONTRACTING METHODS
	
I. 	TRADITIONAL APPROACH TO CONSTRUCTION: ADVANTAGES AND DISADVANTAGES 
II. 	MULTIPRIME CONTRACTING AND FAST-TRACKING 
III. 	 CONSTRUCTION MANAGEMENT
A. Agency Construction Management
B. Program Management 
C. Construction Manager/General Contractor 
IV. DESIGN-BUILD CONTRACTING: WHAT WORKS TO AVOID DISPUTES 
A. The Design-Builder?s Perspective 
B. The Owner?s Viewpoint 
C. Design-Build Project Checklist for Owners 
D. The Successful Design-Build Project 
E. Design Professional Liability Issues In A Design-Build Project 
V. DESIGN-BUILD ASPECTS OF TRADITIONAL CONSTRUCTION 
A. Performance Specifications 
B. Shop Drawings 
C. Secondary Design Review 
D. The Interpretations Clause 
E. Identification of Patent Defects 
F. Compliance with Permits, Codes, and Regulations 
VI. CONTRACTOR LIABILITY ISSUES 
VII. ENGINEER-PROCURE- CONSTRUCT 
A. Limitations of Liability 
B. Liquidated Damages 
VIII. PUBLIC PRIVATE PARTNERSHIPS 
3 PREPARING TO WORK IN A NEW STATE: PREPROPOSAL AND PERFORMANCE CONSIDERATIONS
I. 	QUALIFYING TO DO BUSINESS	
II.	STATE REGISTRATION REQUIREMENTS: BONDS TO SECURE PAYMENT OF TAXES	
III. 	STATE LICENSING AND QUALIFICATIONS	
IV. 	PUBLIC CONSTRUCTION AWARDS	
V. 	STATE STATUTES AND POLICIES AFFECTING CONTRACT TERMS AND CONDITIONS	
A. 	Subcontractor/General Contractor Relationships	
B. 	Contract Award Preference Regulations	
C. 	Public Policy Limitations on Contract Clauses	
D. 	Impact of New Legislation	
VI. 	PRESERVATION OF LIEN/BOND RIGHTS	
A. 	Preconstruction Knowledge of Lien Law Peculiarities Is Essential	
B. 	Lien Law Protections and Procedures Vary Greatly from	
C. 	?Almost Right? Is Almost Always Not Good Enough	
D. 	A Valid Claim of Lien Does Not Guarantee Payment	
E. 	Arm Yourself Early with Accurate Lien Law Information	
VII. 	RISK ASSESSMENT CHECKLISTS	
VIII. INFORMATION SOURCES	
POINTS TO REMEMBER	
4 COMPETING FOR THE CONTRACT
I.	INTRODUCTION: SEALED BIDS TO NEGOTIATED BEST-VALUE AWARDS	
II.	GENERAL CONSIDERATIONS IN BIDS FOR PUBLIC CONTRACTS	
III.	THE RESPONSIBLE BIDDER	
IV.	THE RESPONSIVE BIDDER	
V.	THE ?LOWEST AND BEST? BIDDER	
VI.	NEGOTIATED ?BEST VALUE? SELECTION PROCESS	
VII.	ELECTRONIC BIDS	
VIII.	REVERSE AUCTIONS	
IX.	GENERAL CONSIDERATIONS WHEN COMPETING ON PRIVATE CONTRACTS	
X.	EFFECT OF PAST PERFORMANCE EVALUATIONS ON AWARD PROCESS	
A.	Past Performance Evaluation Procedures	
B.	Challenges to Past Performance Evaluations	
XI.	CONTRACTOR BID MISTAKES	
A.	Elements for Relief From Bid Mistake	
B.	Owner?s Duty If Bid Mistake Is Suspected	
C.	Withdrawal versus Reformation of Bid Mistake	
XII.	BID PROTESTS	
A.	Protests on Federal Government Contracts	
B.	Protests Before or After Receipt of Bids or Offers	
C.	Protests to the Contracting Agency	
D.	Protests to the Comptroller General (GAO)	
E.	Bid Protests in Court	
F.	Bid Protests on State and Local Public Contracts	
XIII.	Bid Bonds	
XIV.	?Bid Shopping?: What is the Obligation of the Prime Contractor to the Subcontractor Submitting the Lowest Price? 
XV.	Holding Subcontractors / Vendors to Their Bids	
A.	Promissory Estoppel	
B.	Elements of Promissory Estoppel	
1.	Clear and Definite Offer	
2.	Subcontractor Expects Reliance	
3.	Reliance Must Be Reasonable	
XVI.	Statute of Frauds Issues	
XVII.	Damages	
5 INTEPRETING THE CONTRACT
I.	THE IMPORTANCE OF CONTRACT INTERPRETATION	
II.	WHAT IS A ?CONTRACT??	
III.	THE GOAL OF CONTRACT INTERPRETATION	
IV.	DEFINING CONTRACT TERMS	
A.	Terms Defined by the Parties	
B.	Technical Terms	
C.	Generally Accepted Definitions	
V.	INTERPRETING THE CONTRACT?S WORDING	
A.	The Contract Must Be Considered As a Whole	
B.	 Specific Terms v. General Terms	
C.	Handwritten, Typed, and Pre-printed Terms	
D.	Order of Precedence Clause	
VI.	THE FACTS AND CIRCUMSTANCES SURROUNDING CONTRACT FORMATION	
A.	Discussions and Conduct	
1.	 Parol Evidence	
2.	 The Merger Clause	
B.	The Parties? Prior Dealings	
C.	Industry Custom and Usage	
D.	Limitations on the Use of Facts and Circumstances Surrounding the Contract	
VII.	RESOLVING AMBIGUITIES	
A.	Construing the Contract Against the Drafter	
B.	Duty to Request Clarification	
VIII.	IMPLIED CONTRACTUAL OBLIGATIONS	
A.	Duty of Good Faith and Fair Dealing	
B.	Duty to Cooperate	
B.	Warranty of Plans and Specifications ? The Spearin Doctrine	
IX.	CONTRACTUAL OBLIGATIONS ARISING BY OPERATION OF LAW	
POINTS TO REMEMBER	
6 THE UNIFORM CONSTRUCTION CODE AND THE CONSTRUCTION INDUSTRY
I. 	THE UNIFORM COMMERCIAL CODE	
II. 	APPLICABILITY OF THE UCC TO CONSTRUCTION	
III. 	DETERMINING WHEN ARTICLE 2 APPLIES	
IV. 	MODIFYING UCC OBLIGATIONS	
V. 	CONTRACT FORMATION UNDER THE UCC	
A. 	Agreement on All Terms and Conditions Is Not Required	
B.	 Methods of Acceptance	
C. 	The Requirement for a Written Contract	
D.	Withdrawal of an Offer	
E.	Filling Gaps in Essential Contract Terms	
IV.	RISK OF LOSS	
VII.	INSPECTION, ACCEPTANCE, AND REJECTION	
A.	Inspection of the Goods	
B.	Rejection of Goods	
C.	Acceptance and Notice of Breach	
D.	Seller?s Right to Cure	
VIII.	WARRANTIES UNDER THE UCC	
A.	Warranty Disclaimers and Limitations	
IX.	STATUTE OF LIMITATIONS AND COMMENCEMENT OF THE WARRANTY PERIOD	
X.	PERFORMANCE ISSUES	
A.	Anticipatory Repudiation/Adequate Assurance of Performance	
B.	Dealing with the Other Party?s Insolvency	
C.	Excuse of Performance by Failure of Presupposed Conditions	
D.	Buyer?s Remedies	
E.	Seller?s Remedies	
7 THE AUTHORITY AND RESPONSIBILITY OF THE DESIGN OFFICIAL
i.	OVERVIEW	
II.	STANDARD OF CARE AND PROFESSIONAL RESPONSIBILITY	
III.	THE AUTHORITY OF THE DESIGN PROFESSIONAL	
A.	Actual Authority	
B.	Implied Authority	
C.	Apparent Authority	
D.	Ratification of the Design Professional?s Authority	
IV.	SUPERVISORY AND ADMINISTRATIVE FUNCTIONS OF THE DESIGN PROFESSIONAL	
A.	Interpretation of the Plans and Specifications	
B.	Review and Approval of Shop Drawings and Submittals	
C.	Inspections and Testing	
D.	Issuance of Certificates of Progress or Certificates of Completion and Certificates for Payment	
E.	Resolution of Disputes between the Owner and the Contractor	
V.	OTHER DUTIES OF THE DESIGN PROFESSIONAL	
VI.	THE DESIGN PROFESSIONAL?S LIABILITY TO THE CONTRACTOR	
A.	Negligence and the ?Economic Loss Rule?	
B.	Intentional Torts	
C.	Third-Party Beneficiary Theory	
D.	Professional Liability Coverage	
VII.	STATUTES OF REPOSE	
VIII.	EFFECTS OF CONTRACTUAL LIMITATIONS ON DESIGN PROFESSIONAL LIABILITY	
iX.	ASSUMPTION OF DESIGN LIABILITY BY THE CONTRACTOR	
X.	RECENT STANDARD FORM CONTRACT EFFORTS REGARDING SHARED RESPONSIBILITY AND RISK	
XI.	THE DESIGN PROFESSIONAL?S COPYRIGHT FOR DESIGN DOCUMENTS	
Table 7.1 Applicable State Statutes of Limitations and Repose	
8 SUBCONTRACT ADMINISTRATION AND DISPUTE AVOIDANCE
I. DISPUTE AVOIDANCE BEGINS AT THE BIDDING STAGE	
A. The Importance of the Low Price	
B. Know the Other Parties	
1. Reputation	
2. Financial Resources	
3. Experience and Qualifications	
4. Union versus Nonunion Status	
C. Problem Areas in Subcontract Bidding	
1. Enforcement of Subcontractor Bids	
2. Subcontractor Rights against the Prime Contractor	
II. PREPARATION OF THE SUBCONTRACT AGREEMENT	
A. ?Flow-Down? Obligations	
B. Scope of the Work	
C. Payment Obligations	
1. The Case against the Pay-When-Paid Clause	
2. The Case for the Pay-When-Paid Clause	
3. Changes to the Payment Terms Must Also Account for the Surety	
D. Subcontractor Default Clause	
1. The Right to Terminate	
2. Termination for Convenience	
3. Considerations in Drafting Subcontract Default Clause	
E. No Damages for Delay, Except as Paid by the Owner	
F. Changes	
G. Subcontractor?s Indemnification of the Contractor	
H. Labor Affiliation	
I. Disputes Procedures	
1. In General	
2. Arbitration Considerations	
J. Federal Government Projects	
III. SHOULD SUBCONTRACTORS BE BONDED?	
IV. DISPUTE AVOIDANCE BY DILIGENT PROJECT ADMINISTRATION	
A. General Contractor?s Duty to Coordinate the Work	
B. Implied Duty to Cooperate	
C. Implied Duty to Coordinate	
D. Limitation of Liability	
E. Pay Applications and Partial Lien Waivers	
F. Prime Contractor Financing of Subcontractors	
G. Remedies for Defective Performance	
H. Remedies for Delayed Performance	
I. Relationship between Subcontractor and the Owner: May the Prime Contractor Assert the Subcontractor?s Rights against the Owner?	
J. The Prime Must Be Liable to the Subcontractor for the	
K. States Have Adopted the Severin Doctrine	
L. Conclusion	
CONTRACT CHANGES
I. WHAT IS A CHANGES CLAUSE?	
II. RECOVERY UNDER THE CHANGES CLAUSE	
A.	Is There a Change to the Contract Work?	
B.	Deductive Changes	
III. WHO IS AUTHORIZED TO ORDER CHANGES?	
A. Implied Authority	
B.	Apparent Authority	
C. Alternatives to Demonstrating Authority	
IV. WRITTEN DOCUMENTATION OF CHANGES	
A. 	Written Directives	
B. 	Requirements for Written Notice	
V. CONSTRUCTIVE CHANGES	
VI. CARDINAL CHANGES	
VII. The Impact of Numerous Changes on Unchanged Work	
VIII. IMPOSSIBILITY/IMPRACTICABILITY	
DIFFERENING SITE CONDITIONS
I. DIFFERING SITE CONDITION DEFINED	
II. RESPONSIBILITY FOR DIFFERING SITE CONDITIONS	
III. STANDARD DIFFERING SITE CONDITIONS CLAUSES	
A. Federal Government Contracts	
B. ConsensusDOCS	
C. Other Standard Forms	
1. The American Institute of Architects (AIA).	
2. Engineers Joint Contract Documents Committee (EJCDC)	
IV. TYPES OF CONDITIONS COVERED	
A. Type I and Type II Changed Conditions	
B. Notice Requirements	
V. OPERATION OF THE DIFFERING SITE CONDITIONS CLAUSE	
A. Recovery for a Type I Changed Condition	
B. Recovery for a Type II Changed Condition	
VI. STUMBLING BLOCKS TO RECOVERY	
A. Site Investigations	
B. Exculpatory Clauses	
C. Notice Requirements	
VII. RELIEF IN THE ABSENCE OF A CONTRACT PROVISION	
A. Misrepresentation	
B. Duty to Disclose	
C. Breach of Implied Warranty	
D. Mutual Mistake	
POINTS TO REMEMBER	
11 SCHEDULES, DELAYS, AND ACCELERATION
I. DEVELOPMENTS IN CONTRACTUAL RISK ALLOCATION	
A. Time Is of the Essence Clause	
B. Contract Commencement and Completion Dates	
C. Substantial Completion and Final Completion	
D. Typical Contract Time and Scheduling Clauses	
II. USE OF SCHEDULES IN PROJECT MANAGEMENT	
III. TYPES OF DELAYS	
A. Excusable Delays versus Nonexcusable Delays	
B. Excusable Delays	
C. Compensable Excusable Delays	
D. Nonexcusable Delays	
IV. TYPICAL CAUSES OF EXCUSABLE COMPENSABLE DELAY	
A. Defective Drawings or Specifications	
B. Failure to Provide Access and Improper Site Preparation	
C. Failure to Supply Materials or Labor	
D. Failure to Provide Plans/Approve Shop Drawings	
E. Failure to Coordinate Prime Contractors	
F. Failure to Give Timely Orders for Work	
G. Failure to Make Timely Payments to Contractors	
H. Failure to Inspect	
I. Suspensions	
J. Excessive Change Orders	
K. Failure to Accept Completed Work	
V. CONCURRENT DELAY	
A. Traditional View: No Recovery by Either Party	
B. Modern Trend: Apportionment of Delay Damages	
VI. NONCOMPENSABLE EXCUSABLE DELAYS	
A. Weather	
B. Acts of God	
C. Labor Problems	
VII. ACCELERATION	
A. Directed Acceleration	
B. Constructive Acceleration	
VIII. CONTRACTUAL LIMITATIONS TO RECOVERY	
A. Requirement for Written Notice	
B. No-Damages-for-Delay Clauses	
C. Trade to Trade Clauses	
IX. DELAY CLAIMS AND THE USE OF CPM SCHEDULES	
X. DELAY CLAIMS SUPPORTING DOCUMENTATION	
12 INSPECTION, ACCEPTANCE, WARRANTIES, AND COMMISSIONING
I.	INSPECTION	
A.	Introduction	
B.	Standard Inspection Clauses	
1.	Federal Government Contracting Inspection Clauses	
2.	Industry Form Contract Inspection Clauses	
C.	Safety Related Inspection Obligations	
D.	Costs of Inspection	
E.	The Owner?s Right to Inspect	
1.	The Right, Not the Duty	
2.	Scope of Inspection	
F.	Rejection and Correction	
G.	Limitation on Owner?s Inspections	
1.	Authority	
2.	Higher Standards of Performance	
3.	Rejecting Acceptable Work	
4.	Delay and Disruption	
H.	Inspection by the Design Professional or Inspector	
I.	Inspection by the Contractor	
II.	ACCEPTANCE	
A.	Overview	
B.	Types of Acceptance: Formal versus Constructive	
C.	Authority as an Element of Constructive Acceptance	
D.	Limitations on the Finality of Acceptance	
E.	Contract Provisions Related to the Finality of Acceptance	
F.	Substantial Completion	
G.	Final Completion	
H.	Revocation of Acceptance	
III.	CONTRACTUAL WARRANTIES	
A.	Express Warranties	
B.	Implied Warranties	
C.	Statutory Warranties	
IV.	PROJECT COMMISSIONING AND POST-ACCEPTANCE FACILITY OPERATIONS	
A.	Commissioning Programs	
B.	Bonding Considerations	
13 MANAGEMENT TECHNIQUES TO LIMIT RISKS AND AVOID DISPUTES
I. CONSTRUCTION: A RISK-PRONE BUSINESS
II. QUALIFYING THE PROJECT AND THE PARTICIPANTS
A. Qualifying the Project
B. Qualifying the Project Participants
C. Qualifying the Site and Locale
III. 	DEFINING RIGHTS, RESPONSIBILITIES, AND RISKS: 
THE PARTIES AND THEIR CONTRACTS
IV. CONTRACT FRAMEWORK
A. Standard Contract Forms
1.	ConsensusDOCS
2.	AIA Documents
3.	EJCDC Documents
B. Critical Contract Provisions
V. 	AVOIDING AND PREPARING FOR DISPUTES THROUGH PROPER MANAGEMENT AND DOCUMENTATION
VI. PRUDENT AND RESPONSIBLE ESTIMATING
VII. ESTABLISHING STANDARD OPERATING PROCEDURES
VIII. ESTABLISHING LINES OF COMMUNICATION
IX. PROJECT DOCUMENTATION
X. 	ELECTRONIC COMMUNICATIONS ON CONSTRUCTION PROJECTS
A.	Industry Forms Addressing Electronic Communications
B.	Web-Based Project Management Systems
BUILDING INFORMATION MODELING (BIM)
A.	Collaborative Uses of BIM
B.	BIM?s Legal Implications
XIi.	COST ACCOUNTING RECORDS
XIII. MONITORING THE WORK THROUGH SCHEDULING
XIV. PRESERVING ELECTRONICALLY STORED INFORMATION
XV. CONCLUSION
 POINTS TO REMEMBER
APPENDIX 13.1: ConsensusDOCS 221?CONTRACTOR?S STATEMENT OF QUALIFICATIONS FOR A SPECIFIC PROJECT
APPENDIX 13.2: CHECKLIST?PREBID/
PROPOSAL ENVIRONMENTAL CONSIDERATIONS
APPENDIX 13.3: CHECKLIST?
CONTRACTS IN FOREIGN STATES
APPENDIX 13.4: LOGS AND FORMS
 
14 PAYMENT BONDS
I. PAYMENT BONDS REQUIRED BY STATUTE	
A. The Miller Act	
1. Factors Used to Determine Whether the Miller Act Applies	
2. Required on Contracts for the Construction, Alteration, or Repair of ?Public Buildings? and ?Public Works?	
B. Little Miller Acts	
II. PAYMENT BONDS ON PRIVATE PROJECTS	
III. QUALIFYING FOR PAYMENT BOND COVERAGE	
A. ?Subcontractors? and ?Suppliers?	
B. Suppliers of Customized Materials	
C. ?Substantiality and Importance? of Relationship with Prime Contractor	
D. ?Dummy? Subcontractors, Alter-Egos, and Joint Ventures	
E. Claimants on Private Payment Bonds	
IV. WORK QUALIFYING FOR PAYMENT BOND COVERAGE	
A. Labor and Materials	
B. Equipment Repairs and Rental	
V. RECOVERY UNDER PAYMENT BONDS FOR EXTRA WORK, DELAY DAMAGES, OR LOST PROFITs, AND OTHER COSTS	
A. Extra Work	
B. Damages for Delay and Lost Profits	
C. Attorneys? Fees and Other Costs	
VI. DISTINGUISHING BETWEEN PAYMENT BOND CLAIMS AND PERFORMANCE BOND CLAIMS	
VII. PROCEDURAL REQUIREMENTS	
A. Time of Notice	
B. Time of Lawsuit	
C. Surety Response to Notice of Claim	
VIII. THE EFFECT OF PAYMENT BONDS ON LIEN RIGHTS	
IX. THE SURETY?S DEFENSES TO PAYMENT BOND LIABILITY	
A. Pay-If-Paid Clauses	
B. Misrepresented Status of Payments	
C. Claim or Lien Waivers	
POINTS TO REMEMBER	
15 PERFORMANCE BONDS AND TERMINATION
I.	SURETY PERFORMANCE BONDS	
A.	Fundamentals of Suretyship Law	
1.	Performance Bonds Are Not Insurance Policies	
2.	Indemnification - The Bottom Line	
3.	?Common Law? versus ?Statutory? Bonds	
4.	The Surety?s Obligations	
B.	Extension of Performance Bond Surety?s Liability to Third Parties	
C.	Increase of the Surety?s Liability under a Performance Bond	
D.	The Surety?s Defenses to Performance Bond Liability	
E.	Surety Entitlement to Contract Funds	
F.	Industry Performance Bond Forms: A Comparison	
G.	The Effect on the Surety of Arbitration of Construction Disputes	
H.	Alternatives to Bonds: ?Subguard? Programs	
II.	TERMINATION	
A.	Overview	
B.	Termination for Default	
C.	Standard Form Contracts: Grounds for Default Termination	
1.	Refusal or Failure to Prosecute the Work	
2.	Failure to Complete on Time	
3.	Repudiation by the Contractor	
4.	Failure to Comply with Other Material Provisions of the Contract	
D.	Defenses of the Contractor	
1.	Excusable Delay	
2.	Waiver by the Owner	
E.	Contractor Response to Termination Notices	
F.	Remedies of the Owner	
1.	Reprocurement Costs	
2.	Delay Damages	
G.	Termination for Convenience	
1.	Standard Industry Forms ? Private Contracts	
2.	?Bad-Faith? Convenience Terminations: Theory and Reality	
H.	Convenience Termination Costs	
POINTS TO REMEMBER	
16 PROVING COSTS AND DAMAGES
I. BASIC DAMAGE PRINCIPLES	
A. The Compensatory Nature of Damages	
B. Categories of Damages	
1. Direct Damages	
2. Consequential Damages	
3. Punitive Damages	
C. Causation	
D. Cost Accounting Records	
E. Mitigation of Damages	
F. Betterment	
II. METHODS OF PRICING CLAIMS	
A. The Total Cost Method	
B. Segregated Cost Method	
C. Modified Total Cost Method	
D. Quantum Meruit Claims	
III. THE CONTRACTOR?S DAMAGES	
A. Contract Changes and Extras	
B. Wrongful Termination or Abandonment	
C. Owner-Caused Delay and Disruption	
1. The Original Eichleay Decision	
2.	Post Eichleay Decisions	
D. Owner-Caused Acceleration	
E. Defective Drawings or Specifications	
F. Inefficiency Claims	
1. Lost Productivity Entitlement	
2. Calculating Lost Productivity Costs	
3. Measured Mile (Differential Studies)	
4. Industry Studies and Guidelines	
IV. THE OWNER?S DAMAGES	
A. Direct Damages	
B. Consequential Damages	
C. Liquidated Damages	
POINTS TO REMEMBER	
17 CONSTRUCTION INDUSTRY ENVIRONMENTAL AND SAFETY CONCERNS
I.	SOURCES OF ENVIRONMENTAL REGULATION AND LIABILITY 
A.	Encountering Hazardous Materials on a Construction Site - CERCLA Liability 
1.	Strict Liability Under CERCLA 
2.	PRPs 
a.	Liability as an Operator 
b.	Liability as a Transporter 
3.	Joint and Several Liability 
4.	Contribution 
B.	Water Quality 
C.	Air Quality 
1.	 Greenhouse Gas Emissions 
2.	Asbestos and Lead 
a.	Inadvertent Asbestos Abatement 
b.	Inadvertent Lead-Based Paint Abatement 
II.	MINIMIZING ENVIRONMENTAL RISKS 
A.	Conduct a Pre-bid Environmental Review of the Contract Documents 
1.	Exclude Hazardous Materials from the Scope of Work 
2.	Determine What Materials Will Be Encountered 
B.	Contract Provisions and Indemnification 
C.	Insurance 
III.	PROPER MANAGEMENT TECHNIQUES 
A.	Management Review of Environmental Risks 
B.	Have a Response Plan 
C.	Immediately Stop Work in the Affected Area 
D.	Provide Immediate Notice 
E.	Do Not Resume Work Without Proper Authorization 
F.	Mold: Developing a Program to Limit Liability 
IV.	ENVIRONMENTALLY FRIENDLY CONSTRUCTION-GREEN BUILDINGS 
A.	LEED Certification 
B.	Design and Construction Issues Affected by Green Building Construction 
C.	Bearing the Risk: Legal Issues Raised by LEED 
V.	CONSTRUCTION SAFETY 
A.	Sources of Safety Requirements: OSHA-Specific Project Procedures 
B.	Successfully Working with OSHA 
C.	Who Is Responsible for Project Safety? 
1.	Contractors 
2.	Design Professionals 
3.	Construction Managers 
4.	Owners 
D.	Indemnification 
E.	Worker?s Compensation Statutes 
18 CONSTRUCTION INSURANCE
I.	 THE IMPORTANCE OF INSURANCE PLANNING	
II. TYPES OF INSURANCE	
A.	Commercial General Liability	
1.	CGL Insurance: ?Occurrence? versus ?Claims-Made?	
2.	CGL Insurance: Costs of Defense and Deductibles	
3.	CGL Insurance: Layers of Insurance	
4.	CGL Insurance: Additional Insured	
5.	CGL Insurance: Environmental Liability	
B.	Builder?s Risk Insurance	
1.	Builder?s Risk: ?All-Risk? versus ?Specified?	
2.	Builder?s Risk: ?Occurrence? Coverage Trigger	
C.	Errors and Omissions Insurance	
D.	Alternatives to Traditional Insurance Programs	
III. CONTRACT REQUIREMENTS FOR INSURANCE	
A.	Standard Contract Clause	
B.	Waiver of Subrogation	
C.	Proof of Insurance	
IV. PROMPT ACTION TO PROTECT POTENTIAL COVERAGE	
A.	Sensitivity to Insurance Issues	
B.	Prompt Action to Protect Potential Coverage: Immediate Notice	
V. THE INSURANCE COMPANY?S RESPONSE TO CLAIMS	
A.	The Insurance Company?s Reservation of Rights	
B.	Litigation with the Insurance Company	
VI. ROUTINE COVERAGE ISSUES	
A.	CGL Coverage Issues: Continuing Damages	
B.	CGL Coverage Issues: Diminution in Value	
C.	CGL Coverage Issues: Completed Operations	
D.	CGL Coverage Issues: ?Care, Custody, and Control?	
E.	CGL Coverage Issues: Contractual Liability Exclusion	
F.	CGL Coverage Issues: Real Property Exclusion	
G.	CGL Coverage Issues: Incorrect Performance of Work Exclusion	
H.	CGL Coverage Issues: Your Product Exclusion	
I.	CGL Coverage Issues: Your Work Exclusion	
J.	Builder?s Risk Coverage Issues: Policy Periods	
K.	Builder?s Risk Coverage Issues: Fortuitous Loss	
L.	Builder?s Risk Coverage Issues: Exclusions	
VII. CONCURRENT CAUSES	
VIII. CONSTRUCTION INSURANCE AND MOLD CLAIMS	
A.	Mold Claims: ?Pollutant?	
B.	Mold Claims: ?Discharge, Dispersal, Seepage, Migration, Release, or Escape?	
C.	Mold Claims: ?Efficient Proximate Cause?	
D.	Mold Claims: ?Reasonable Expectations?	
E.	Mold Claims: Specific Mold Exclusions	
19 LABOR AND EMPLOYMENT ISSUES AFFECTING THE CONSTRUCTION INDUSTRY
I.	IMMIGRATION ISSUES	
A.	Immigration Documentation and Control	
B.	Responses to Immigration Inquiries	
C.	Immigration Issues in Public Contracting	
II.	EMPLOYEE SAFETY AND HEALTH	
III.	WAGE AND HOUR REQUIREMENTS	
A.	Basic Calculation	
B.	Overtime Calculation	
1.	Preliminary and Postliminary Time	
2. Waiting and On-Call Time	
C.	Independent Contractor Status Considerations	
D.	Government Contracts	
IV.	EMPLOYEE BENEFITS	
A.	ERISA Overview	
V.	EMPLOYMENT DISCRIMINATION	
A.	Equal Employment Opportunity Commission	
B.	Title VII of the Civil Rights Act of 1964	
C.	The Americans with Disabilities Act	
D.	Age Discrimination in Employment Act	
E.	Discrimination and Public Contracting	
F.	Office of Federal Contract Compliance Programs	
G.	Executive Order 11246	
H.	Uniform Service Employment & Re-Employment Rights Act (USERRA)	
VI.	FAMILY AND MEDICAL LEAVE ACT	
VII.	UNION ACTIVITY	
A.	Union-Organizing Tactics	
1.	Salting	
2.	Intermittent/Partial Strikes	
3.	Nontraditional Picketing	
B.	Appropriate Employer Responses to Union Activism	
VIII.	UTILIZING EMPLOYEE BACKGROUND INVESTIGATIONS	
20 BANKRUPTCY IN THE CONSTRUCTION SETTING
I. INTRODUCTION	
II. THE PLAYERS	
III. THE BANKRUPTCY CODE	
A. Chapter 11 - Reorganization	
B. Chapter 7 - Liquidation	
C. The Automatic Stay	
D. Sanctions for Violation of Automatic Stay	
E. Relief from the Automatic Stay	
F. Preferential Transfers	
G. Exceptions to the Preferential Transfer Rule	
1. ?New Value? Exception	
2. Ordinary Course of Business Defense	
H. Discharge	
I. Nondischargeable Debts	
IV. STATUS OF THE DEBTOR?S CONTRACTS	
A. Executory Contracts	
B. Affirmance or Rejection	
C. Assignment	
D. Minimizing the Impact on Executory Contracts	
1. Terminate Before Bankruptcy	
2. Exercise Contract Rights	
3. Seek Relief from the Automatic Stay	
4. Seek a Time Limit on Affirming or Rejecting the Contract	
V. STATUS OF MATERIALS AND EQUIPMENT	
A. Property of the Debtor?s Estate	
B. Supplier?s Right to Recover Goods	
C. Stored Materials	
D. Voiding Unperfected Security Interests	
VI. STATUS OF CONTRACT FUNDS	
A. Unearned Contract Funds	
B. Earned but Unpaid Contract Funds	
1. Constructive Trust	
2. Equitable Lien	
3. Joint Check Agreements	
4. Setoff	
5. Recoupment	
6. Surety Claims to Funds	
VII. OTHER SOURCES OF FUNDS	
A. Performance and Payment Bond Claims	
B. Mechanic?s Liens	
C. Guarantors	
21 RESOLUTION OF CONSTRUCTION DISPUTES
I. EARLY CLAIM RECOGNITION AND PREPARATION	
II. EARLY INVOLVEMENT OF EXPERTS AND ATTORNEYS	
III. THE USE OF DEMONSTRATIVE EVIDENCE	
IV. IMPORTANCE OF CONTEMPORANEOUS RECORDS	
V. THE COMPONENTS OF A WELL-PREPARED CLAIM DOCUMENT	
VI. IMPORTANCE OF CALCULATING AND PROVING DAMAGES	
VII. PURSUING NEGOTIATION AND SETTLEMENT	
VIII. ALTERNATIVES TO LITIGATION: ADR	
A. Dispute Review Boards	
B. Mini-Trials/Summary Jury Trials	
C. Mediation	
1.	Preparing for the Mediation	
2.	Understanding the Mediation Process	
3.	Timing of Mediation	
IX. ARBITRATION	
A. Time And Costs Of Arbitration	
B. Selection of Arbitrators	
C. Informality and Limited Appeals in Arbitration	
D. Enforceability of Agreements to Arbitrate	
E. Special Problems Involving Multiple Parties to Arbitration	
F. Med-Arb	
G. Arbitration Agreements and Procedures	
H. American Arbitration Association (AAA) Rules and Procedures	
I. Center for Public Resources (CPR) Rules and Procedures	
J. International Chamber of Commerce (ICC) Rules and Procedures	
K.	Party-Drafted Arbitration Agreements: Federal and State Law Considerations	
X. LITIGATION	
A. Profile of the Construction Trial	
B. The Court System	
C. The Federal Rules of Civil Procedure	
D. Discovery	
1.	Interrogatories	
2.	Depositions	
3.	Requests for Admission	
4.	Motion for Entry upon Land	
5.	Production of Documents and Things	
E. Judge or Jury?	
F. Alternative Dispute Resolution or ?ADR? ? in the Courts	
G. The Trial	
H. Live Testimony	
22 FEDERAL GOVERNMENT CONSTRUCTION CONTRACT DISPUTES
I. HISTORICAL OVERVIEW	
II. SCOPE OF THE CONTRACT DISPUTES ACT	
III. THE FREEDOM OF INFORMATION ACT:	
A. CLAIM PREPARATION TOOL	
IV. CONTRACTOR CLAIMS	
V. WHEN MUST A CLAIM BE SUBMITTED?	
VI. NOTICE REQUIREMENTS	
VII. WHO MAY SUBMIT A CLAIM?	
VIII. WHAT CONSTITUTES A CLAIM?	
A. Written Submission to the Contracting Officer	
B. Elements of a Claim	
C. Certification Requirement	
D. Monetary Threshold for Certification	
E. Modification of Claim Amount	
F. CDA Certification Language	
G. Supporting Data	
H. Who May Certify the Claim?	
IX. OTHER CERTIFICATION REQUIREMENTS	
X. CERTIFICATION OF SUBCONTRACTORS? CLAIMS	
XI. GOVERNMENT CLAIMS	
XII. CONTRACTING OFFICER?S DECISION	
A. Time Allowed for Issuing the Decision	
B. Contents of the Final Decision	
XIII.	APPEAL DEADLINES	
XIV. CHOOSING A FORUM: BOARD OR COURT OF FEDERAL CLAIMS	
XV. TRANSFER AND CONSOLIDATION OF CASES	
XVI. ADR AND GOVERNMENT CONTRACT DISPUTES	
XVII. RECOVERY OF ATTORNEYS? FEES IN GOVERNMENT CONTRACT CLAIMS	
POINTS TO REMEMBER	

Library of Congress Subject Headings for this publication:

Construction contracts -- United States.
Construction industry -- Law and legislation -- United States.