Date: 1/12/2011 to 1/15/2011
Location: Walt Disney World Swan Hotel - Orlando, FL
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Stephen M. Rymal, P.E., Esq.
MDCSystems®
Consulting Engineer

Most of those working in the construction contract claims business are familiar with 1960 decision by the Armed Services Board of Contract Appeals (ASBCA) in the Eichleay Corporation Case which recognized a contractor’s right to recover unabsorbed home office overhead for owner caused delays and work stoppages.

Stephen M. Rymal, P.E., Esq.
MDCSystems®
Consulting Engineer

"No damage for delay" clauses continue to divide the country and the courts on their application and interpretation. Although owners and prime contractors insist on enforceability, the net result typically shifts the risk onto the party least likely to negotiate fair limits, to control events on the jobsite and absorb the ultimate cost. Nevertheless, these clauses are found in most construction contracts in some form or another.

Jeff Yick, Esq.
Zetlin & De Chiara LLP

A no-damage-for-delay clause attempts to contractually bar recovery by a contractor or subcontractor in the event project delays result in damages or extra costs. A sample no-damage­-for-delay clause is as follows:

The Contractor agrees to make no monetary claim for delays, interferences or hindrances of any kind in the performance of this Contract occasioned by any act or omission to act of the authority of any of its Representatives and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work.

Leigh Erin Schmeltz, Esq.
October 2006

As demonstrated by the popularity of CBS's television show CSI: Crime Scene Investigation, the intriguing field of forensic science is capturing the attention of many across the nation. Beyond entertainment and education, however, forensics plays a very real and crucial role in civil investigations, using technology to investigate and establish facts in the civil courts. Evidence that illustrates wrongdoing, negligence and malfeasance through photographs, detailed reports, and testing can mean the difference between an adverse judgment and a complete discharge from liability. Every detail can help tell a story. Whether the detail is a stress fracture of an improperly driven pile, an e-mail or a letter, the challenge is to preserve the evidence for later interpretation and examination. The intentional or negligent destruction or significant alteration of such evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation, is called spoliation [Black's Law Dictionary (8th ed. 2004)].

Ronald F. Parisi, P.E.
Former MDC® Project Director
August 2002

Owners involved in ongoing construction projects are virtually unanimous in recognizing the need to minimize the number and amount of change orders as a way to keep the project costs within budget. In viewing change orders with only this in mind, however, owners may tend to overlook the benefits that the change order process offers to owners. The primary benefits afforded by the change order process are that it allows owners the flexibility to respond quickly, to capitalize upon opportunities and to mitigate problems — both of which frequently arise during the course of construction.

James M. McKay, AIA, P.E.
Former MDC® Project Manager
August 2002

Construction is, to a great extent, a paper business. In addition to a completed building project, an end result of the construction process is reams of documents. From initial project concept through completion, an extensive paper trail is generated.

Francis J. Brennan, P.E.
August 2002

A construction project in default is an emotionally charged situation, with many parties exposed and a lot of money at risk. The owner’s use of the facility will be delayed. The contractor’s work on the project and perhaps years in business may come to an end. The designer’s envisioned project is on hold. The surety faces an uncertain exposure.

Michael C. Loulakis, Esquire, Wickwire Gavin, P.C.
(Originally printed in Legal Trends)

Under “pay-if-paid” clauses a subcontractor is not entitled to payment if the owner fails to pay the general contractor, regardless of whether the subcontractor was at fault. General contractors use these clauses to assign to their subcontractors the risk of owner nonpayment.

Contracts for the construction of new ships have many key differences from contracts for ship repair. The most obvious difference concerns the type of work (new versus repair) but other important differences exist concerning the nature and extent of changes, scheduling, engineering and contract claims. Attorneys and others involved in contract administration and dispute resolution need to understand these important differences.

When faced with a default on their projects, many owners have unrealistic expectations concerning the surety’s obligations under the performance bond. Owners feel frustrated when the surety does not aggressively step in to complete the work. However, under most performance bonds, if the contractor/principal is in default, the surety may discharge its obligations by any one of the following alternatives: (1) finance the contractor/principal to complete the work; (2) obtain a new contractor to complete the work under a direct contract with the owner/obligee; (3) complete the work with a new contractor under a contract with the surety; (4) permit or require the owner/obligee to obtain a new contractor; and (5) do nothing and wait for the owner to take action against the bond. As discussed in the lead article on page 1, deciding which option to exercise requires prudent management decisions often based upon reliable, accurate, and expeditious investigations by an experienced consultant.

October 2000

Shipyards that are building or repairing ships operate in a very complicated marketplace where costs are carefully monitored. Often, claims are submitted requesting additional costs above the stated contract amount because problems beyond the shipyard’s control resulted in disruption of their as-planned flow of work. All too often, the alleged problems follow a pattern that becomes apparent when analyzing such claims. Common allegations of disruption include excessive owner changes, delays in approving changes, late responses to inquiries and problems, defective design, late or defective information or equipment supplied by the owner, and over-inspection. Such allegations form the basis for requests for equitable adjustments, claims, and lawsuits. However, many claims overlook problems that may be the responsibility of the shipyard such as underbidding the costs, rework due to poor performance, management and planning inadequacies, detail design errors, procurement problems and labor difficulties.

John E. Osborn
Originally printed in ©2000 The Metropolitan Corporate Counsel, Inc., Volume 8, No. 2, February 2000

Our law firm’s practice concentrates in representing commercial and residential property owners on construction and environmental law matters. Our practice also includes advising clients on selecting architects, engineers, consultants and contractors, developing the bid process and drafting and negotiating construction and environmental contracts.

In addition to helping our clients obtain the best price under the best contract terms, we are increasingly asked by clients who are property owners to “check out” the financial stability and integrity track record of contractors, design professionals and other participants in the construction process.

John E. Osborn and Eric L. Guhring
Originally printed in The Metropolitan Corporate Counsel, October 1999

Cost effectiveness and success in the resolution of construction disputes is determined by a recipe. The recipe is different for each dispute because the characteristics and ingredients of each construction project and the participants and their quality vary widely. It is clear that the quality of inhouse counsel significantly affects the cost and success of the dispute resolution.