MDC Advisor
March/April 2014
Volume 49
In This Issue

Does Design-Build Alter the A/E Standard of Care?
-- The Dreaded Change Order

-- ABA Forum on the Construction Industry,
2014 Annual Meeting
-- Current Events


Current Events

ABA Forum on the Construction Industry,
2014 Annual Meeting
Beat the Blues: Counseling the Client During the Course of the Ongoing Construction Project 

April 10-12
New Orleans, LA

Please visit MDC's exhibit to collect company information, chat with our professionals or just to put your name into the drawing for a chance to win a great prize.

Swann Presents at ASHRAE this Spring
-- April 4, Salt Lake City, UT
Sustainability Conference
More Info
-- April 14, Carnegie, PA
Presentation at 7 pm on Commissioning
More Info
-- April 15, Johnstown, PA
Commissioning Presentation at 6 pm, Social Hour at 5 pm
More Info

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What Standard? Under Whose Care? 
By Robert C. McCue, PE and E. Mitchell Swann, PE
MDCSystems® Consulting Engineers

Can a Designer or Owner shift responsibility for design errors and omissions by requiring an enhanced effort for construction coordination drawings by contractors?
To answer this question we will recount an example project that was bid as Design-Bid-Build where the fundamental element of the dispute was design defects with regard to spatial arrangement and sizing of system features. Responsibility for system sizing and coordination and to what standard it is performed are key elements of this example.

In this example the Owner tried to obtain support for their defense to design errors by making a series of Design Build and performance specification arguments regarding the Contractor’s responsibility to find and correct these errors.

The popularity of the Design Build model and the additional freedom it provides to Owners may be subtly influencing the types of practical project execution Owners are employing regardless of the actual contract mechanism in use. 

The project concerned an institutional building located in a foreign state. The contracts were written and let as a Design-Bid-Build and the Owner had separate and independent contracts with the Design Professionals and the General Contractor\Construction Manager. The Designers provided bid and issued for construction documents. The issued for construction documents contained system configurations and equipment that did not comply with the local building codes or standards. Failure to comply with code is typically prima facia evidence of failure to meet the applicable standard of care.  However, in this particular instance there were some questions as to what extent a “foreign” owner has to comply with local codes. However, that said, it is still incumbent upon a designer to satisfy the code, or advise an owner to obtain a variance.

The key issue in the dispute was the fundamental design system coordination, or lack thereof, which does not become evident until the construction period. The design drawings and specifications indicated/required certain equipment, devices, and materials to be installed in interstitial spaces. However, when the contractor attempted to detail his coordination drawings to install the identified scope it was discovered the systems wouldn’t fit within the required spaces.

Read More...  


The Dreaded Change Order
by David LaPenta, Vice President, Remington Group, Inc.

We have never met an Owner who was happy to hear, “We need a change order.” What we’ve learned over the years is that even though change orders are facts of life in construction, there are strategies to help you avoid them.

Change orders (CO) fall into two categories – owner driven and non-owner driven. Both can be mitigated.

Owner driven change orders happen when Owners change their minds, adding a window here or changing the carpet there. We’ve even seen buildings moved and floors added mid-project, which leads us to the first CO avoidance strategy: 

1. Get the Program right! Number of people, building function, institutional culture, growth projections; get this right before a Designer puts anything into CAD. Work with your Designer to develop a well-defined Program. Get stakeholder and influencer buy-in on the Program before thinking about room size and amenities.

2. As the design is developed, confirm that you are within your budget. Keep stakeholders and influencers in the loop to eliminate design changes in the Construction Phase. Non-owner driven changes include things like unforeseen conditions, force majeure and bad drawings, i.e. things that are out of your control. The time to protect yourself from these COs is before you sign a contract, when you still have leverage.

Read More....
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