final
edyron
Catalog
Negotiating - Updated.pdf ·················································································································································································································································· 1 Partnering.pdf ··································································································································································································································································· 16 Microsoft PowerPoint - Permits.pdf ·································································································································································································································· 29 Record Drawings.pdf ························································································································································································································································ 47 Schedules.pdf ··································································································································································································································································· 55 Terminations.pdf ······························································································································································································································································· 91 Warranties - Updated.pdf ··············································································································································································································································· 103 Change Order Management.pdf ····································································································································································································································· 123 Claims short version.pdf ················································································································································································································································· 140 Communication - Updated.pdf ········································································································································································································································ 154 Engineering Estimates.pdf ············································································································································································································································· 181
Negotiating
Virginia Regorrah
20 April 2022
First and Most Important Rule of Negotiating
Follow the Boy Scout Motto
Alternately, read Sun Tzu
“Know thy self, know thy enemy. A thousand battles, a thousand victories.”
Know Thy Self
• Understand your position • Scope of work of the change • The numbers
($, time and quantities) – how did you arrive at them?
• The issues – what are the impacts? • Have a flexible plan • Identify where your line-in-the-sand is
– Where can you give? Where can’t you?
Know…the Other Guy
• Seek to understand their position • Learn as much as you can about the
other negotiator and their firm. • What are their concerns in the
negotiation? • Anticipate their moves.
Be Prepared
• Have someone else take notes
• Use a computer
• Set the stage – negotiate where you are comfortable
• Have a plan with your team
Tips for Successful Negotiation
• Most people don’t like conflict
• Start with agreement
• Don’t get bogged down
• Ask questions and listen
• Silence is a great tactic
• It’s not always about money
• Don’t be afraid to call for a break. Or to walk out.
Many Different
Terms for Strategies
Domination
Compromise – arbitrary; a shortcut to actually negotiating
Concession – changes in positions are substantiated
Different Philosophies
Regarding Sharing of
Information
Reveal No Position
Reveal Minimum Position
Reveal Full Position
Tips for Successful Negotiation
• He who talks money first, loses…usually
• You’re not Solomon…. ”splitting the baby” is not negotiating
• This isn’t a competition – but Americans often treat it that way
Be Aware of Different Tactics • “Blow your Top”
• Ultimatum
• Gotta-catch-a-plane
• Good ole’ boy
• The Flirt
Alternate title – recognize when you’re being played
Cultural Differences
• Different cultures have different customs – and different things are important in negotiation.
• Americans get straight to business, treat negotiation like a competition…and then wonder why negotiations were not successful
• Some cultures want to spend time getting to know the other party first
• Some cultures are seeking consensus in the negotiation
Example: Thailand
• Relationships are important; personal relationships are key to conducting business
• It takes time to build relationships
• Politeness and “saving face” are important
• “Yes” does not mean acceptance or agreement
Example: Turkey• Organizations are important;
organizational hierarchy is important
• Relationships are morally based; time must be invested to establish a relationship of trust
• Consensus and tradition are important
QUESTIONS?
1
Partnering
CE 444
Contracts and Specifications
Virginia Regorrah 21 April 2021
What is Partnering?
Partnering builds goodwill and trust, encourages
open communication, and helps the parties
eliminate surprises and adversarial relationships. It
enables the parties to anticipate and resolve
problems, and avoid or minimize disputes through
development and use of Issue Resolution
processes.
What is Partnering?
Partnering is often called dispute prevention.
•Working TOGETHER instead of against each other
•A PROCESS for relationship building
•A PHILOSOPHY of teamwork and understanding the
other parties’ needs
•A COMMITMENT to cooperate and communicate
•An ATTITUDE of goodwill and trust
•SHARING RISKS with a “win-win-win” attitude
What Partnering isn’t: •Relaxing contract terms
•Circumventing the processes
•Expecting extra work for free
•An excuse for poor performance
•A cure-all
•Easy to achieve!
Key
Elements
of
Partnering
Commitment
Communications
Shared
Resolution
of Problems
Empower
Others
Timely
Issue
Resolution
Trust
Successful Project completed Safely
The ultimate goal is the same
Owner Contractor
Successful Project completed Safely
But the sub-goals are often different
Owner ContractorMinimize Cost
Timely
Completion
Maximize
Investment
Minimize
Operational
Cost
Subcontracting
Goals
Maximize
Profit
Minimize
Risk
Early
Completion
What is Partnering?
Partnering is a process of gaining trust through respect and
honesty. It is the realization that this is “our” project and that any
problems or challenges are jointly owned. It is the understanding
that what you are constructing is for the good of the community and
that they deserve your best product. It is the acknowledgement that
you are working with professionals from many fields and while they
all bring something different to the table, the end goal is the same.
Partnering is the faith you have in the other stakeholders and the
faith you keep with them.
Partnering Vocabulary
• SOLUTION vs. PROBLEM
• WE vs. YOU or THEM and US
Not Really Partnering
Vocabulary
• “In the Spirit of Partnering….”
PARTNERING
• May be Formal or Informal
• Commitment to Communication and Resolution of Issues at the Lowest Possible Level
• Does not add to the price of the Contract
• Takes two (+) willing Partners
Tuckman’s Stages of Group
Development
Langton, Nancy; Robbins, Stephen P; Organizational Behaviour : Concepts,
Controversies, Applications; Pearson Education Canada; 2006
Partnering Agenda
• Project Overview, Challenges & Concerns
• Project Vision Development
• Goal Development
• Lines of Authority
• Charter Finalization
1
Permits CE 444
Contracts and Specifications
Virginia Regorrah 21 April 2021
Permits CE 444
Contracts and Specifications
Virginia Regorrah 21 April 2021
PermitsPermits • Contractor is generally responsible for
securing permits
• Initiated at the beginning of the project
• Must be closed out at the end of the project
• May be inspected by the permitting authority for compliance
• Permit jurisdictions include City, County, State, Tribal, Federal and specific installations
• Contractor is generally responsible for securing permits
• Initiated at the beginning of the project
• Must be closed out at the end of the project
• May be inspected by the permitting authority for compliance
• Permit jurisdictions include City, County, State, Tribal, Federal and specific installations
General Types of PermitsGeneral Types of Permits
• Building Permits
• Work Permits
• Transportation Permits
• Environmental / Cultural Permits
• Security Permits
• Building Permits
• Work Permits
• Transportation Permits
• Environmental / Cultural Permits
• Security Permits
Building Permits *depends on the jurisdiction
Building Permits *depends on the jurisdiction
• Residential Construction
• Commercial Construction
• Demolition
• Scaffolding – if a scaffold will be used
• Sign – if moving or removing building signs
• Residential Construction
• Commercial Construction
• Demolition
• Scaffolding – if a scaffold will be used
• Sign – if moving or removing building signs
Building PermitsBuilding Permits • Building (includes paving, roofing)
• Electrical
• Elevator
• Plumbing
• Mechanical / Heating
• Fire System
• Interior or Exterior Remodeling
• Building (includes paving, roofing)
• Electrical
• Elevator
• Plumbing
• Mechanical / Heating
• Fire System
• Interior or Exterior Remodeling
Transportation PermitsTransportation Permits
• Haul Route
• Street Use
• Access Driveway Permit
• Drainage Permit
• Work in Navigable Waters
• Haul Route
• Street Use
• Access Driveway Permit
• Drainage Permit
• Work in Navigable Waters
Environmental PermitsEnvironmental Permits • Water
• Air
• Noise
• Waste
• Dredged Material
• Hazardous Remediation
• Cultural and Natural Resources
• Water
• Air
• Noise
• Waste
• Dredged Material
• Hazardous Remediation
• Cultural and Natural Resources
Environmental PermitsEnvironmental Permits
• National Pollutant Discharge Elimination System/State Disposal System Construction Stormwater General Permit (NPDES/SDS) http://www.pca.state.mn.us/index.php/water/water-ty pes-and- programs/stormwater/construction-stormwater/index.h tml
• SWPPP (Stormwater Pollution Prevention Plan) is a part of the NPDES permit
• In Minnesota, the Minnesota Pollution Control Authority (MPCA) reviews/approves the SWPPP
• In North Dakota, the ND Department of Health is responsible for reviewing/approving the SWPPP
• National Pollutant Discharge Elimination System/State Disposal System Construction Stormwater General Permit (NPDES/SDS) http://www.pca.state.mn.us/index.php/water/water-ty pes-and- programs/stormwater/construction-stormwater/index.h tml
• SWPPP (Stormwater Pollution Prevention Plan) is a part of the NPDES permit
• In Minnesota, the Minnesota Pollution Control Authority (MPCA) reviews/approves the SWPPP
• In North Dakota, the ND Department of Health is responsible for reviewing/approving the SWPPP
For Federal ProjectsFor Federal Projects
• National Environmental Policy Act: • Requires Federal Agencies to integrate environmental
values into their decision-making processes. • Requires an Environmental Impact Statement (EIS) and an
Environmental Assessment (EA) • Process includes a mandatory public comment period
• National Historic Preservation Act: • Requires agency review of potential cultural or historic
significance to sites prior to beginning construction
• National Environmental Policy Act: • Requires Federal Agencies to integrate environmental
values into their decision-making processes. • Requires an Environmental Impact Statement (EIS) and an
Environmental Assessment (EA) • Process includes a mandatory public comment period
• National Historic Preservation Act: • Requires agency review of potential cultural or historic
significance to sites prior to beginning construction
For Federal ProjectsFor Federal Projects
• Endangered Species Act: • Requires a determination from USFW on whether a project
will impact Endangered Species
• Clean Water Act (Section 404): • Regulates discharge of dredged or fill materials into
wetlands • Permitting process includes a minimum 30-day public
comment period
• Clean Water Act (Section 401): • Water quality certification requirement from the State
• Endangered Species Act: • Requires a determination from USFW on whether a project
will impact Endangered Species
• Clean Water Act (Section 404): • Regulates discharge of dredged or fill materials into
wetlands • Permitting process includes a minimum 30-day public
comment period
• Clean Water Act (Section 401): • Water quality certification requirement from the State
11
Example – NHPA
12
Example – NHPA
13
Example – NHPA
14
Example – Wetlands Permitting
Wetland PermittingWetland Permitting
PermitsPermits • Identify permit requirements early
• Determine who is responsible for procuring the each permit
• Ensure permitting time is included on the schedule
• Monitor compliance
• Close -out upon project completion
• Identify permit requirements early
• Determine who is responsible for procuring the each permit
• Ensure permitting time is included on the schedule
• Monitor compliance
• Close -out upon project completion
Other Government RegulationsOther Government Regulations
• Drug -Free Workplace
• Equal Opportunity
• Wages and Overtime Compensation
• Buy American
• Payment of Taxes
• Drug -Free Workplace
• Equal Opportunity
• Wages and Overtime Compensation
• Buy American
• Payment of Taxes
QUESTIONS?QUESTIONS?
1
Record Drawings
CE 444
Contracts and Specifications
Virginia Regorrah 28 April 2021
Record Drawings
• Developed from Red-Line Drawings, also known as As-Built Drawings, or sometimes “Mark-ups”
• Record Drawings are developed from the Red Lines by the A/E
• Show the conditions as constructed
Record Drawings
• Incorporate all changes – to include Amendments, modifications, field changes, supplemental instructions
• Critical value for future work and in the event of an emergency
Red-Line Drawings • Red-Lines or As-Builts are Deliverables
required of the Contractor upon completion of the physical work
• Should be updated daily during the contract; may be included as a required item for progress payments
• Should be inspected by the A/E during site visits
Refresher: Drawing Types
• Design Development – drawings produced during the Design Phase (conceptual, schematic, design)
• Construction Drawings – Final set of design drawings; part of contract documents, often called “For Construction Drawings” or simply “Design Drawings.”
• Shop Drawings – Used by the Contractor to illustrate fabrication or installation. Often a “deliverable” or submittal.
Refresher: Drawing Types
• As-Built Drawings – Also called “Red-Lines.” Contractor maintains a marked-up set of drawings of all the changes which occur during construction.
• Record Drawings – Produced by the A/E from the As-Built Drawings. Final Set of Drawings provided to the Customer.
What is a Schedule?
Answer: A tool to determine the
necessary activities, the sequence
and the time frame to complete the
project in an efficient and economical
manner.
Who uses Schedules?
Answer: Everyone
(Owner, Owner’s Agent, Contractor
and Stakeholders)
Why are Schedules important?
Answer:
Allows the Owner and Contractor to
monitor time, determine if a project is
on-track or behind schedule and if it
needs to be accelerated. Determines
if time is due for modifications or
“force majeure”
How do I make a project schedule?
Answer: There are 5 Steps.
1. Determine the Activities
2. Put them in sequence (order)
3. Determine the relationship
between activities
4. Determine the activity durations
5. Determine the project duration
How do I start?
Answer:
Identifying the activities involved
A Work Breakdown Structure (WBS)
is a good place to start
WORK BREAKDOWN STRUCTURE • Not so much a Schedule as a Planning method
• Breaks the project into activities by organizing the
work as a series of increasingly more detailed layers
• Portrays a logical sequence of work supporting
construction schedule preparation
• Example: • Level 1 Project
• Level 2 Sub-project
• Level 3 Sub-network
• Level 4 Activity
• Level 5 Sub-Activity
WBS Example: Building a House
Level 1House
Top Level is the “end product” – what you are constructing
WBS Example: Building a House
Level 1
Level 2
Next level are the major elements of work.
House
WBS Example: Building a House
Level 1
Level 2
House
Sitework Foundation Exterior Interior Services
WBS Example: Building a House
Level 1
Level 2
House
Sitework Foundation Exterior Interior Services
Level 3
Next level are specific items within the major elements of work.
WBS Example: Building a House
Level 1
Level 2
House
Sitework Foundation Exterior Interior Services
Level 3
Excavate
Utility
Connect.
Landscape
Concrete
Footing
Concrete
Slab
Walls
Windows
Doors
Roof
Framing
Drywall
Doors
Carpet
Electric
Plumbing
HVAC
How many types of Schedules are
there?
Answer:
Depends on your source.
For this course, we’re going to talk
about 4 – Program Schedule, Bar
Chart, CPM, Network Analysis
Schedule
PROGRAM / PROJECT SCHEDULES
- Developed by the Owner or Designer
- Utilized for managing a project - Includes time for studies, design, advertisement and award
- Includes the estimated construction timeline
- May include O&M events
- Should be adjusted as changes occur
- Should be updated and maintained as construction
proceeds
Program Schedule
• Remember our second class and the Life Cycle of
Design?
Dec 2001Aug 2001 Jun 2002 Jul 11 2002 Aug 2003 Oct 2003Mar 2002
Bar Chart
- Also known as a Gantt Chart
- simple and easy
Activity
Mobilize
Clear & Grub
Strip
Excavate
Install forms
Place bedding
Compact
Install forms
Install wire
Inspect
Place concrete
Cure
Remove Forms
Week 1 Week 2 Week 3 Week 4 Week 5
Critical Path Method
- Critical Path Method (CPM)
- identifies the critical path *
- identifies time required to complete activities
- shows float time
- identifies early & late start, early & late finish
* Critical Path is the sequence of activities which takes
the longest to complete
ES
LS
D EF
LF
Activity Description
ACTIVITY
The Activity is the building block, the basic element of
a schedule
Early Start
(ES)
Early Finish
(EF)
Late Start
(LS)
Late Finish
(LF) TF
Duration (D)
Total Float
(TF)
DEFINTIONS
Duration (D): How long the activity takes
Early Start (ES): The earliest the activity can start, based on the finish of
previous, or predecessor activities
Early Finish (EF): The earliest an activity will be completed.
Late Start (LS): The latest an activity can start without delaying the
project
Late Finish (LF): The latest an activity can finish without delaying the
project
Total Float (TF): Amount of time an activity can be delayed without
affecting the project completion
Forward Pass - The process in a critical path analysis which
calculates activity early possible start and finish dates.
ES + D = EF
Backward Pass - The process in a critical path analysis which
calculates activity late allowable start and finish dates.
LF – D = LS
Calculation of Float- Determining how long an activity can be
delayed before it delays the project
LF – EF = TF = LS - ES
Critical Path – The path of activities, which if delayed, will delay
completion of the entire project
Network Analysis Schedule
- Network Analysis Schedule (NAS)
- Scheduling software
(Primavera P6, Microsoft Project)
- identifies the critical path
- identifies time required to complete activities
- shows float time
- identifies early & late start, early & late finish
- includes cost loading
- produces multiple reports
SCHEDULES REQUIRED DURING
CONSTRUCTION
- Preliminary Schedule
- activities to 90 days
- Initial Schedule
- “first look” (through completion)
- Progress Schedule
- Periodic updates
- Schedule of Values
- Shows prices associated with each event
WHEN ARE SCHEDULES
REQUIRED?
Schedules are Required:
- Within 10 days of NTP
- Upon Submission of Progress Payments
- With any requests for additional time
- Upon inclusion of additional work
- When the Contractor’s schedule has changed
- With any request for additional time
See Article 2 “Preliminary Matters”
WHAT GOES ON A SCHEDULE?
Activities:
- Features of work
- Permit submission and review time
- Submittals and Review Time
- Material ordering and delivery time
- Inspections
- Time for punchlist correction
- Project Milestones/Key Events
- Time for turn-over
The Scheduler should include those items that will
impact the project time
WHAT ELSE?
Items on a schedule:
- Duration of work
- Predecessor and Successor Events
- Start and Finish Dates
- Float
- Critical Path
- Value of work
CONTRACTOR ACTIONS
- Resourcing – ensure critical resources are properly
scheduled
- Lead Times – ensure you’ve accounted for material
lead times, shipping, submittal review
- Crew Balance – schedule crews efficiently, don’t
overwhelm your site; don’t leave too much lag
CONTRACTOR ACTIONS
- Inspections – schedule time for inspections
- Sequencing – make sure the activity sequencing
makes sense
- Restrictions – Include constraints and restrictions
OWNER ACTIONS
- Review and accept (or reject) the schedule
- Pay attention!
- Do the start/finish dates make sense?
- Do the durations make sense?
- Does the sequencing make sense?
- Withhold payments if the schedule is not acceptable
- Ensure time extensions are justified
1
Terminations
CE 444
Contracts and Specifications
Virginia Regorrah 28 April 2021
TERMINATIONS
• DEFAULT – Contractor has not performed in
accordance with the contract requirements.
• CONVENIENCE – Owner no longer requires part
or all of a project; may be a Partial Termination
• BAD FAITH BREACH OF CONTRACT –
Contractor has misrepresented his qualifications
TERMINATION CONSEQUENCES
• DEFAULT (T4D) – Contractor may owe additional
costs of re-procurement in addition to damages.
• CONVENIENCE (T4C) – Settlement value limited to
balance of contract price; no anticipatory profit is
allowed.
• BAD FAITH BREACH OF CONTRACT - No cap on
damages; Contractor may be debarred
DEFAULT PROCESS
• Letter of Concern – Identify the item(s) of concern,
remind the Contractor of the contract requirements
and tell the Contractor to correct the issue
• Cure Notice – State that the issue has not been
corrected and the Contractor now has X days to
correct (X is usually 10)
• Show Cause – Written at X+1. State that the
Contractor has not corrected the issue and ask him
to “Show Cause” why the Contract should not be
Terminated for Default
REASONS FOR DEFAULT • Failure to Perform - Did not complete by CCD
• Cannot T4D if substantially complete
• Failure to Make Progress - Endangering timely
completion of the project
• “No reasonable likelihood” of timely completion
• Failure to Comply with Specs
• No bonds/lapsed insurance
• Fraud/False Claims/Bribery/Kick-backs
• Davis-Bacon/non-payment
SURETY OPTIONS ON T4D
• TAKE OVER the project and act as the prime
contractor
• HIRE A CONTRACTOR to complete the project
• HAVE THE OWNER COMPLETE THE PROJECT by
providing them the remainder of the bond to re-solicit
• FIGHT THE T4D - Take the position the contractor was
wrongfully terminated
Grounds for Termination by the
Contractor • According to AIA Document A201, there are 3
grounds for Termination by the Contractor:
• Stoppage of work by the Owner in court action,
through no fault of the Contractor for more than 30
days
• Stoppage of work for 30 days because the architect
has not issued a certificate of payment
• Owner has not furnished evidence of financial
arrangements.
• INVENTORY – Used only for partial terminations of
construction projects; Costs chargeable to
terminated portion of contract
• TOTAL COST – Required for total T/C construction
contracts; Itemize all costs incurred up to the date of
termination
METHODS OF PAYMENT T4C
Inventory vs. Total Cost
• Work in-place.
• Costs to terminate subcontracts.
• Return/restocking costs materials.
• Termination administration / proposal preparation **
• Profit on preparations made and work done
** Different from mods where admin costs aren’t allowed
T4C COSTS
Termination for Convenience
vs
Termination for Default
Termination for Convenience does not reflect upon
the Contractor. It does not affect the Contractor’s
reputation or bonding ability.
Termination for Default is a negative action. It effects
the Contractor performance evaluation and
reputation. It can have a very negative effect on the
Contractor’s bonding capacity and ability to bid
future jobs.
• DEFAULT –
• Bad contracts don’t get better. Don’t drag the
decision out.
• Be prompt and timely with the letters! You miss the
time and you turn a T4D into a T4C
• Documentation is critically important!
• CONVENIENCE
• Documentation is critically important!
• Attention to detail and an in-depth examination of the
Contractor’s records is required
TERMINATION ADVICE
Warranties
Virginia Regorrah
27 April 2022
Warranties
• Contract Warranty: Generally 1 year; established in General Conditions of the Contract
• Special Warranty (Express Warranty): Manufacturer’s warranty or installer’s warranty on specific items • Roof • Lighting controls • Pumps
• Implied Warranty: “Goods will be fit for the ordinary purpose for which they are normally used.”
Warranties
Contract Warranties: Established in General Conditions of the Contract:
AIA:
Article 3, section 5
Article 9, section 8.4
EJCDC:
Article 6, section 19
Federal Government:
FAR Clause 52.246-21 Warranty of Construction
•
52.246-21 Warranty of Construction
(a)In addition to any other warranties in this contract, the Contractor warrants, except as provided in paragraph (i) of this clause, that work performed under this contract conforms to the contract requirements and is free of any defect in equipment, material, or design furnished, or workmanship performed by the Contractor or any subcontractor or supplier at any tier.
(b) This warranty shall continue for a period of 1 year from the date of final acceptance of the work. If the Government takes possession of any part of the work before final acceptance, this warranty shall continue for a period of 1 year from the date the Government takes possession.
52.246-21 Warranty of Construction
(c) The Contractor shall remedy at the Contractor’s expense any failure to conform, or any defect. In addition, the Contractor shall remedy at the Contractor’s expense any damage to Government-owned or controlled real or personal property, when that damage is the result of –
(1)The Contractor’s failure to conform to contract requirements; or (2) Any defect of equipment, material, workmanship, or design furnished.
52.246-21 Warranty of Construction
(d) The Contractor shall restore any work damaged in fulfilling the terms and conditions of this clause. The Contractor’s warranty with respect to work repaired or replaced will run for 1 year from the date of repair or replacement.
(e) The Contracting Officer shall notify the Contractor, in writing, within a reasonable time after the discovery of any failure, defect or damage.
(f) If the Contractor fails to remedy any failure, defect or damage within a reasonable time after receipt of notice, the Government shall have the right to replace, repair or otherwise remedy the failure, defect or damage at the Contractor’s expense.
52.246-21 Warranty of Construction
(g) With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for work performed and materials furnished under this contract, the Contractor shall –
(1) Obtain all warranties that would be given in normal commercial practice; (2) Require all warranties to be executed, in writing, for the benefit of the Government, if directed by the Contracting Officer; and (3) Enforce all warranties for the benefit of the Government, if directed by the Contracting Officer.
(h) In the event the Contractor’s warranty under paragraph (b) of this clause has expired, the Government may bring suit at its expense to enforce a subcontractor’s, manufacturer’s, or supplier’s warranty.
52.246-21 Warranty of Construction
(i) Unless a defect is caused by the negligence of the Contractor or subcontractor or supplier at any tier, the Contractor shall not be liable for the repair of any defects of material or design furnished by the Government nor for the repair of any damage that results from any defect in Government-furnished material or design.
(j) This warranty shall not limit the Government’s rights under the Inspection and Acceptance clause of this contract with respect to latent defects, gross mistakes, or fraud.
Special Warranties –
Identified under each feature of work
Special Warranties
https://www.owenscorning.com/en-us/roofing/warranty
Special Warranties
• Contractor must provide warranties to the owner
• Points of contact must be provided
• Warranties should be included in the Operations and Maintenance Manuals
Implied Warranties
• Implied Warranties: Unwritten promise; interpreted by the Courts
• Includes 2 elements: • Warranty of Habitability: Structure will be devoid of defects that would render it
uninhabitable
• Warranty of Construction: Contractor must use a professional standard of skill in the construction process.
• “Work shall be constructed in a good and workmanship manner.”
•
https://trspencer.com/blog/how-implied-warranties-play-a-role-in-construction-contracts
Warranty Inspections
• Pre-Final Inspection: Before project turn-over
• Warranty Inspections: • Recommended at 4 months and 9 months • Alternative – one inspection at 11 months
• Think about – Do you retain money for warranty inspections?
When do Warranties commence?
• Contract Warranty: Upon Substantial Completion or Beneficial Occupation
• Special Warranty (Express Warranty): Upon installation
• Implied Warranty: Immediately
(j) This warranty shall not limit the Government’s
rights under the Inspection and Acceptance clause
of this contract with respect to latent defects,
gross mistakes, or fraud.
Defects
• Patent Defect – obvious, discoverable by a reasonable inspection
• Latent Defect – Hidden, concealed. Not discoverable by a reasonable inspection.
Latent Defects
In determining if a defect is latent, the court would look at factors such as:
• Was the defect known prior to Acceptance? • Was there a test that would identify the defect? • Is that test required per the contract? • Degree of difficulty and expense in conducting the
tests • Is the number and type of tests reasonable? • Availability of test facilities • Contractor assurances • Operation of equipment and the number of hours to
failure
Source: www.cohenseglias.com
Latent Defects - Examples
• Kaminer Construction v. United States • 16 undersized bolts in a 11,967 bolt structure
• Keco Industries, Inc., ASBCA 13271, 71-1 BCA ¶ 8727 (1971) • Defects in a sealed clutch assembly could only be discovered by operation beyond the 500-
hour service life
• Triple “A” Machine Shop, Inc., ASBCA 16844, 73-1 BCA ¶ 9826 (1972) • Defect only manifested after test runs were completed
Source: www.cohenseglias.com
Defects – Time Limits for Discovery
• Statute of Repose – number of years to find a defect
• Statute of Limitation – number of years to file a lawsuit after a defect has been discovered
• A contractor may be held liable for a latent defect for the life of the facility.
Defects – Time Limits for Discovery
State Statute of Repose Statute of Limitation
California – patent defect
4 years after substantial completion
1 year after discovery
California – latent defect 10 years after substantial completion
N/A
Indiana – design defect 12 years after completion
2 years after discovery
Indiana – construction defect (“all others”)
10 years after substantial completion
2 years after discovery
Minnesota 10 years after substantial completion
2 years after discovery
New York No Statute of Repose 3 years after discovery
North Dakota 10 years after substantial completion
2 years after discovery
Source: www.sdvlaw.com
QUESTIONS?
1
Change Order Management
CE 444
Contracts and Specifications
Virginia Regorrah 22 April 2020
DEFINITIONS
Modification / - Any written change in the Terms or Conditions.
Change Order after award of the contract.
Amendment / - A change to the contract while it is still in
Addenda solicitation.
Equitable - “The ultimate goal of an equitable adjustment is
Adjustment to do equity” – to compensate the Contractor for
costs incurred in the performance of additional
work.
Administrative - A unilateral change, in writing, which doesn’t
Change affect the rights of either party.
DEFINITIONS
Constructive - A change which occurs as a result of the Owner’s
Change actions or failure to act in a timely manner. The
lack of a written change order does not preclude
payment to the contractor.
Claim - Contractor’s petition to the Contracting Officer
and/or judicial courts for monetary adjustments
due to disputes and/or constructive changes.
DEFINITIONS
“In Scope” - A change which falls within the description of
Changes work in the contract. Contractor must proceed
with work, even if agreement on cost is not
reached.
“Out of - Adding materially to the work; not addressed in
Scope” the original contract documents. Must have
Changes a bilateral agreement; generally not allowed in
federal work.
Examples
SOW: The East Grand Forks Levees Phase 1 contract consists of
the following major features:
- Construction of approximately 10,000 linear feet of earth levee.
- Five pump stations.
- Three Stop-log closures
- Recreation features, including three restroom facilities, park
equipment and trails.
The PM wants to:
- Add a pump in two of the pump stations
- Change pump sizes
- Add a road closure
- Add construction of garage for the fire department
DEFINITIONS
Claim - A request for compensation
Change - An undisputed claim
Order
Dispute - A claim that cannot be resolved by parties to the
contract without assistance of an independent
third party
From Construction Specifications Institute: Construction Contract Administrative Practice Guide
ADDENDA
• Issued to clarify, revise, add to, or delete information in
procurement documents or in previous addenda
• Depending on which standardized general conditions are
used, addenda is issued:
• During solicitation, before bid opening (EJCDC)
• After bid opening, but before signing the contract (AIA)
• Addenda become part of the contract documents
• If issued during solicitation, Contractors must acknowledge
receipt
PURPOSE OF ADDENDA
• Clarify questions raised by bidders
• Issue new requirements, including changes to
extent of work
• Correct errors or omissions in contract documents
From Construction Specifications Institute:
METHOD OF MODIFICATION
AIA Document A201 • Change orders
• Negotiated Changes – require signature of Owner, A/E,
Contractor
• Construction change directive
• No agreement on pricing between the Owner and Contractor
• Becomes a Change Order after negotiation
• Requires signatures of Owner and A/E
• Architect’s Supplemental Instructions (Minor Changes to Work)
• Interpretations not involving adjustment to contract sum or time
• Requires signature of A/E only
METHOD OF MODIFICATION
EJCDC Documents
• Change order – Negotiated change, signed by Owner, A/E
and Contractor
• Work change directive – Un-negotiated directive from A/E
to Contractor; becomes change order after negotiation
• Field order – Minor variations which do not involve a
change in contract price or time; signature of the A/E
• Written interpretation or clarification – Involves non-
technical issues; requires signature by Owner and A/E
Instruments of Change
AIA EJCDC
AIA
Addenda
AIA
Architect’s
Supplemental
Instructions
Preparation of
Procurement Documents
Contract Award
Bid Opening
EJCDC
Addenda
AIA
Change
Orders
AIA
Construction
Change
Directive
EJCDC
Change
Order
EJCDC
Directive
Work
Change
Final Acceptance
EJCDC
Field Order
From Construction Specifications Institute: Construction Contract Administrative Practice Guide
MODIFICATIONS
• Identified, negotiated and issued after award
• Modifications result from:
• User Requests
• Unforeseen field conditions
• Changes in regulatory code provisions
• Changes in market conditions (if a cost
• Correction of contract documents to eliminate errors,
omissions, or discrepancies
• Requests for equitable adjustment from the Contractor
• Directed work or Constructive acceleration
• Also – errors/problems with Contract Administration
MODIFICATION PROCESS
Need for change
is recognized
ROM Estimate to
determine funding
requirement and
availability
Issue a Request
for Proposal
Prepare Estimate
Negotiate Determine
funding Prepare Proposal
Issue Change
Order
Begin Work
Increase Bond
POTENTIAL ALLOWANCES ON CHANGES
POTENTIAL ALLOWANCES ON CHANGES:
- Direct Costs
- Field Office and Home Office Overheads
- Profit
- Bond
- Impact Costs
- Shared Cost Savings
CONSTRUCTIVE SUSPENSION CAUSES
• Delay in Approving Shop Drawings
• Delay in Issuing Change
• Delay in Investigating Differing Site Conditions
• Delay in Making Site Available
• Delay in Issuing Notice to Proceed
TIME RESTRICTIONS ON REAs / CLAIMS
• AIA Article 3.7.2 CONCEALED OR UNKNOWN
CONDITIONS – 21 days from first observance
• AIA Article 15.1.2 NOTICE OF CLAIMS – Must be
initiated within 21 days of occurrence
Claims and Disputes – EJCDC/AIA
• Successful project
• Completed on time
• Within budget
• Safely
• With all claims resolved
• Claim is request for compensation
• Change order is an undisputed claim
• Dispute is a claim that cannot be resolved by parties of
contract without intervention of independent third party
Claims – EJCDC/AIA
• Sources of Claims
• Contractor claims
• Owner claims
• Third-party claims
• Contractual provisions governing claims:
• Subcontractors, suppliers and other third party must make
claims through the prime contractor
• General conditions of the construction contract include
time constraints for filing and taking action on a claim
• Claims must include sufficient documentation for a
decision
Claims – EJCDC/AIA
• Submitting Claims:
• A/E acts as the impartial interpreter of the contract
documents
• Claims must be filed initially with the A/E
• After initial decision, a denied claim may be dropped
or moved on to disputes resolution
Owner Claims – EJCDC/AIA
• Owner may initiate a claim if:
• Owner costs have increased due to Contractor fault
• Value of work does not match the cost
• Owner claims may include:
• Defective work
• Damages to existing property
• Liquidated damages for late completion
• Ineffective management by Contractor resulting in
added costs
Contractor Claims – EJCDC/AIA
• Contractor may file a claim for the following issues:
– Interference or Direction by Owner or A/E
– Conditions beyond control of Contractor or Owner
– Unknown or concealed conditions affecting extent of
work
– Modifications made to contract documents
– Errors and omissions in contract documents
– Breach of contract (failure to pay, poor contract
administration)
Claims Processing – EJCDC/AIA
• General conditions typically state the A/E is
responsible to interpret contract documents and make
a decision involving the claim
• If either party takes exception to A/E’s decision, claim
may be
• Negotiated
• Mediated
• Arbitrated
• Litigated
Claims Processing – EJCDC/AIA
• Negotiated – between Owner and Contractor
• Mediated
• Outside 3rd Party, Single Mediator
• Both sides must agree to decision
• If a decision is agreed upon, it is legally
enforceable
Claims Processing – EJCDC/AIA
• Arbitrated
• Outside 3rd Party, Panel of Arbitrators (1 – 3
individuals)
• Decision through arbitration is legally binding
• Litigated
• Lawyers, Judge, Court, Lots of time, Lots of
money…
The Claims Process (Private)
The Claim
The Owner
Court
Arbitration
Response
30 days
30 days * (depends
on Division 01)
The Engineer
Mediation
11
The Litigation Process
• Discovery
• Interrogatories
• Depositions
• Requests for Production
• Pre-Trial Settlement Discussions
• Trial
Key Components of a Claim
Know the Contract! • Specs
• Designs
• Bid Item Schedule
• Division 01 (General Conditions)
Documentation! • Have your Reports, Emails, Submittals, Test
Reports, Meeting Notes, Records of Conversations, Correspondence
• Review them and have them handy
• DON’T EVEN THINK ABOUT DELETING THEM!!!
Key Components of Litigation (Advice for the Engineer)
Practice with the lawyer
Make sure your lawyer knows about the skeletons
Tell the Truth
(But – don’t answer more than you are asked)
Best Advice: Don’t go to Court! Can a Settlement be reached?
Communication
Virginia Regorrah
20 April 2022
Verbal Communication
Communication: Exchange of information so the other person behaves in a manner that demonstrates understanding.
• Communication takes up 80% of your time
Words are transferred– but words can have many different meanings.
For example, the 500 most common words in construction have more than 14,000 definitions
Hammer
Hammer
Hammer
Hammer
Communication is a BIG Topic
• Verbal Communication
• Serial Letters
• Memorandums
• Phone Conversations
• Emails
• Texting
• Daily Reports (Job Diary)
• Meetings
• Presentations and Reports
• RFIs, Submittals, Schedules
Advice
• Treat ALL your communication like you will end up in Court having to explain it.
• Be professional – in tone, in grammar, in timeliness
• Remember the 4 C’s: Clear, concise, correct, complete
• All communication is official. Everything conveys your intent.
• Follow up verbal communication with written verification
What the Sender Remembers
70% OF WHAT THEY SAY 90% OF WHAT THEY SAY AND DO
What the Listener Remembers
10% OF WHAT THEY HEAR
20% OF WHAT THEY READ
30% OF WHAT THEY SEE
50% OF WHAT THEY HEAR AND SEE
Meeting Pre-Planning
What do I want to accomplish?
Who do I need there?
What do I need from each person in order to accomplish the objectives?
Have I provided a working agenda with sufficient time to review and revise?
What is the purpose? What are the specific objectives?
Are the topics identified and sequenced properly?
Meetings
• Have an agenda and a time frame
• Maintain control of the meeting
• “Pin the rose” on someone for each open item
• Practice Effective Group Leadership Skills
• Listen Attentively
• Respond Constructively to Ideas
• Match Decision-making Style to each Situation
• Solicit ideas from all members
Advice: Resumes are Communication Tools as well…..
• Research the firm / organization to which you are applying --- Tailor your resume to what they want
• BLUF: Bottom Line Up Front – your degree, registration, job experience (in reverse order – current job to oldest job
• Don’t just recite duties – identify #s, unique activities
• Get experience related to your profession
• Pare it down – high school is history.
• Check spelling
Personalities, Temperaments and Group Interactions
Personalities and Temperaments
• As Engineers, you will play many different roles
• You use different leadership and motivation strategies depending on the situation and the person
• Understanding the different ways people approach problems or deal with stress will help you manage effectively.
Group Roles
Leader Shaper
Implementer
Team Worker
Investigator
Evaluator
Finisher
http://www.skillsyouneed.com/ips/group-roles.html
Plant
Group Roles
• Leader / Coordinator –often calm, positive, charismatic
• Shaper – argumentative, provocative, impatient. Pushes the group towards decisions. Wants to remove barriers and obstacles
• Investigator – curious and flexible. Good at researching information and resources
Group Roles
• Finisher – task-oriented member. Worried about deadlines. Often not good at delegation.
• Team Worker – supports and encourages others. Works towards the good of the team, but often indecisive.
• Implementer – practical and organized. Wants to transfer discussion to results. Can often be stuck in their old ways and not open to change.
Group Roles
• Evaluator – evaluates and analyzes proposals. Not involved in discussions. Able to make logical decisions.
• Plant – intellectual, creative, individualistic. Will suggest solutions that aren’t always practical. Tends to ignore constraints.
Langton, Nancy; Robbins, Stephen P; Organizational Behaviour : Concepts, Controversies, Applications; Pearson
Education Canada; 2006
Tuckman’s Stages of Group Development
Myers-Briggs
Feeling Thinking
Myers-Briggs Preferences
• Where do you gather your energy and inspiration? • From people?
• From yourself?
• How do you gather information and how do you interpret it? • From your 5 senses?
• By interpreting patterns and reading between the lines?
Introvert
Extrovert
Sensing Intuitive
Myers-Briggs Preferences
• How do you make your decisions? • Look at the logic first?
• Look at people and circumstances first?
• How much structure do you want in your life? • Do you prefer to have a defined plan?
• Would you rather “go with the flow”?
Thinking
Feeling
Judging
Perceiving
Myers-Briggs
Architects
Other Personality Tests Keirsey Temperament Sorter
Hermann Whole Brain® Thinking
DiSC Profile
Other Personality Tests
5 Voices
https://5voices.com/
QUESTIONS?
1
Engineering Estimates
CE 444
Contracts and Specifications
Virginia Regorrah 14 April 2021
TYPES OF COSTS AND THE RELATED
ESTIMATE
• Capital Cost: Expenses associated with
study, design and construction of a facility
• Land acquisition
• Planning and feasibility studies
• Architectural and engineering design
• Construction, including materials, equipment and labor
• Equipment and furnishings not included in construction
• Inspection and testing
TYPES OF COSTS AND THE RELATED
ESTIMATE
• Operations and Maintenance: Life-cycle
costs of operation, maintenance, renovation
and eventually, disposal
• Land rent (or taxes, if owned)
• Operating staff
• Labor and material for maintenance and repairs
• Periodic renovations
• Insurance and taxes
• Financing costs
• Utilities
• Disposal
DEFINITIONS
• Estimate: An estimate is a calculation of
the quantities of various items of work, and
the expenses likely to be incurred
• Estimates include direct costs, indirect
costs and impact costs. Early estimates
may include contingencies to account for
unknowns.
DEFINITIONS
Contingencies: Cost allowances added to a
project cost estimate to allow for
unknowns, uncertainties or unanticipated
conditions that are not possible to evaluate
from readily available data.
Note: Beware of contingencies. They are
necessary during the initial phases of
estimating, but by award, should be
quantifiable. Do not allow contingencies
during negotiations.
Types of Estimates
• Basically:
• Screening: “Rough order of magnitude” – based on previous
projects
• Preliminary: Conceptual design – basic technologies are
identified
• Detailed: Once the Scope of Work is clearly defined and the
features of work are identified
• Engineer’s: Quantities detailed, direct and indirect costs
analyzed
Definitions from Project Management for Construction by Chris Hendrickson and Tung Au
Types of Estimates
• Specifically:
• Order of Magnitude: ~ + 20% Accuracy
• Square Foot Estimate (Cubic Yard Estimates): ~ + 15%
Accuracy
• Systems Estimate: ~ + 10% Accuracy
• Unit Price (Engineer’s Estimate): ~ + 5% Accuracy
From RS Means
ESTIMATING (From ASTM E-2516-11 Standard
Classification for Cost Estimating Classification
System)
Class of
Estimate
Degree of
Project
Definition
Use Expected Accuracy
1 0% - 2% Screening or feasibility -30% to +50%
2 1% - 15% Concept study -20% to +30%
3 10% - 40% Budget Authorization -15% to +20%
4 30% - 70% Control -10% to +15%
5 70% -100% Check estimate and bid -5% to +10%
Order of Magnitude Costs
• Expert Judgment: • Historical information combined with knowledge of present conditions.
• “A Flood Protection project of this size is between $20M - $25M”
• Analogous Estimating: • Based on an analysis of comparable projects
• “The last 3 Flood Protection projects of this type cost $20M”
• Parametric Estimating: • Based on unit measurement costs
• “Levees typically cost $3/lf; and floodwalls cost $12/lf, so this project…”
• Three Point Estimating: • Weighted average of most likely, pessimistic and optimistic costs
Types of Estimates
Identification of Need/
Challenges
Study
Design
Bidding
Construction
Warranty
LIFE CYCLE Operation
Order of Magnitude
Square Foot Estimate
Systems Estimate
Unit Price (Engineer’s Estimate)
Types of Estimates
Order of Magnitude
Square Foot Estimate
Systems Estimate Unit Price
(Engineer’s Estimate)
Accuracy
Time to develop
Hours WeeksDays
Less
Greater
ESTIMATES ARE A COMBINATION OF DIRECT
AND INDIRECT COSTS
• Direct Costs: Costs that can be applied to a
particular feature of work
• Indirect Costs: “The cost of doing business” –
these costs cannot be applied to a specific item
of work, but reflect across the entire workload.
- Job Overhead (Field Office Overhead):
Incurred on the job site
- General Overhead (Home Office Overhead or
General & Administrative): Company overhead
WHAT DO YOU NEED TO CONSIDER?
• Direct Costs • Labor
• Equipment
• Materials and Supplies
• Subcontracts
• Indirect Costs • Field Office Overhead
• Home Office Overhead
• Profit & Bond
• Productivity
• Time (Schedule)
• Impact • Change to future work
• Costs incurred due to delays
ESTIMATING PROCEDURE
1. Read the Description of Work and Determine Scope
(Understand The Extent of the Additional, Changed
and/or Affected Work)
2. Perform a Quantity Take-Off (Material Take-Off)
3. Determine crew make-up (Labor and Equipment)
4. Determine Crew Productivity - Perform Direct Cost
Estimate
5. Determine the new work’s affect on the schedule
(Conduct an Impact Analysis)
6. Include Overhead Costs
ESTIMATE EXAMPLE
1. SOW: Excavate and
install pile for the base
of a gauge well on the
upstream side of the
structure.
2. Material:
3. Crew:
IMPACT COSTS
• Impact Costs: The affect of the change on
unchanged work.
• Reasons for Impact Costs: • Disrupt sequence of work
• Crew crowding
• Working in different seasons
Other Trades
Overhead
Supervision
Loss of Sequence
Schedule Change Congestion
CHANGE(S)
Cost, time and quality are all related:
Time Cost
Decreases
Quality
Increases
Cost
Increases
Increases
Chris Hendrickson, Department of Civil and Environmental
Engineering, Carnegie Mellon University
EXAMPLE:
The project has
been designed –
and the structural
designer realizes
that the rebar size
in the floodwall is
incorrect and he
wants to change it.
How much the
change costs
depends on when
the change is
identified.
What are your costs? How are they
different in different phases?
• If the change is identified during the solicitation
period?
• If the change is identified after the rebar has been
ordered, but has not arrived?
• If the change is identified after the rebar arrives?
SOURCES FOR ESTIMATING
• Experience
• Estimating Guides (RS Means)
• Cost Indices
• Estimating Software
• Previous Estimates
• Other Contractors & Suppliers
• Equipment Performance Handbooks
• Project Management Guides
CAUTION!
• Experience • How much experience do you have?
• In what field?
• Estimating Guides • Regional Costs
• Beware volatility of pricing
• Based on ideal work conditions
• Estimating Software • “GIGO” – How current is the data?
• What is the data based on?
CAUTION!
• Previous Estimates • When were they completed?
• How meticulous was the Estimator?
• Other Contractors & Suppliers • Are discounts being applied?
• Are you getting a good price?
• Equipment Performance Handbooks • Based on ideal conditions
• Does not take operator experience into account
• Project Management Guides • Generic data
• Based on ideal situations
- Negotiating - Updated.pdf
- Partnering.pdf
- Microsoft PowerPoint - Permits.pdf
- Record Drawings.pdf
- Schedules.pdf
- Terminations.pdf
- Warranties - Updated.pdf
- Change Order Management.pdf
- Claims short version.pdf
- Communication - Updated.pdf
- Engineering Estimates.pdf