March 31, 2008

EDITOR'S NOTES

When it comes to construction claims, it’s best to have a construction attorney on your side. An attorney not well-versed in construction law may not be your best advocate, as a California contractor found out after its attorney—a fill-in for the contractor’s original counsel, who left to attend a surety conference—brokered a settlement with unfavorable terms for his client. This substitute attorney, who practiced professional liability and insurance litigation, admitted he was unfamiliar with the facts, the documentation and the legal issues of the case and thought the case was not winnable. The contractor recovered damages caused by the unfavorable settlement agreement, but was denied lost future profit claimed as a result of reduced bonding capacity.

Stops and starts are sometimes a necessary and uncontrollable part of the construction process—weather, material delivery delays, differing site conditions and other causes may hinder the project. Some things cannot stop and start, however. A state high court disallowed a state agency from stopping and starting liquidated damages against a contractor for late delivery. Once it stopped assessing damages, it could not start them again several months later while the contractor worked on punch list items.

Labor laws, competitive bidding statutes and a project labor agreement make for interesting legal fodder. A state appeals court demonstrated that they can coexist without violating the rights of non-union bidders.

If you have not yet signed up for Roadmap to BIM 2008, there’s still time. The final conference in the five-part series is scheduled for April 2. This last discussion will cover the legal and risk factors of BIM, with views expressed by owners, designers and contractors. A recap of the fourth conference is included in this issue.

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