The very act of two project participants coming together to thoughtfully negotiate a design and construction contract has a benefit unto itself – one that is separate from the piece of paper produced at the end of the contract negotiation.
Speed and Efficiency
When I negotiate contracts, my goal is to complete the negotiation quickly and efficiently. 
My clients want to design and construct new buildings, not get bogged down in contract negotiations. 
I love to send the “happy” email to my client that says, “here is the signature copy of the contract – we are done.”
The Hidden Benefit…
Continue Reading The Hidden Benefit to Thoughtful Contract Negotiations

Design professionals must comply with a variety of federal, state, and local statutes, rules, and codes that require certain public and commercial buildings to be designed in a manner so they are readily accessible to, and usable by, persons with certain kinds of disabilities.
Accessibility Requirements
Such “accessibility requirements” address things like ensuring persons in wheelchairs have accessible routes into buildings; that doors are designed wide enough to allow their passage; that light switches, thermostats, and electrical outlets are within their reach; and that kitchens and bathrooms include features, and are laid out in such a way, that an individual…
Continue Reading Accessible Design Requirements: Worthy Aims, Huge Risks for Design Professionals

For years, lawyers and insurance brokers have provided limiting advice to architects and engineers.
The Limiting Advice
Together, we have put architects and engineers in a tiny little box. We advise architects and engineers to stay far away from the means and methods of construction. To not make promises about the outcome of the project. To give no warranties. No assurances about schedule. And to not guarantee construction costs. These are just a few examples. The list goes on and on…
The Negative Impact on Designers
So what is the fallout of this on architects and engineers? It is profound.
Continue Reading Design Professionals Should Not Be Afraid to Lead Design-Build Teams

There is no virtue in overly and unnecessarily long design and construction contracts. But unduly short construction contracts have no virtue either. Contracts with “gray” areas leave too much open for debate, and this can lead to unnecessary wasteful litigation.

No one specific length is best for design and construction contracts.
Project participants do, however, want to avoid overly short contracts with “gray” areas. The ones which do not address the major issues which may arise in the project.
This is because design and construction contracts exist, largely, to resolve prevent and disputes.
Contracts Are a Dispute Resolution Tool
We…
Continue Reading What Is the Best Length for Design and Construction Contracts?

Real estate developers and property owners sometimes make a mistake by entirely outsourcing supervision of the monthly draw process to the title insurer hired by their lenders. But I counsel people against the over-rely on title insurer strategy.
One of the big risks for Illinois project owners and developers is having to pay for the same work twice.
I will not dwell on this point now because it is addressed in videos on my website. But this can happen when they pay the general contractor, and it fails to pay its subcontractors, and then the subcontractors record mechanics liens.
Continue Reading Project Owners Should Not Over-Rely On Title Insurer Review of Payment Applications

Contractor “callback periods” and “warranties of quality” are different concepts. The distinction between them is a little understood – yet very important – nuance in construction contracts. 
Callback periods frequently do have a contractual expiration date, often one year after completion of work. This limits the time when contractors must voluntarily come back to the site to fix defects.
Warranties of quality should not expire on any given date. The obligation to “build in a workmanlike manner” is a quality standard. If contractors fail to meet this standard, they should be ‘on the hook’ for however long the applicable statute…
Continue Reading Beware the “One Year” Warranty: Contractor Callback Periods v. Warranties of Quality Work

Construction Management (CM) is not a single approach to project delivery. Rather, it is a sliding scale with endless possible permutations depending on the project and its participants. 
The ends of the spectrum are Construction Manager as Constructor (CMc), which is also sometimes known as “Construction Manager at Risk,” and the Construction Manager as Adviser (CMa) delivery method. 
This post discusses the CM project delivery method, both in general terms and as framed by the American Institute of Architects’ (AIA) new 2019 CMc and CMa Contract Documents.
Construction Manager as Constructor (CMc)
The CMc approach is similar to…
Continue Reading AIA’s New 2019 CMc and CMa Contract Documents

Compared to its widely-used B152-2007 predecessor, the new B152-2019 Interior Design Agreement contains many changes. The new B152 differs more, textually, from its predecessor than most updated AIA Contract Documents I have seen recently.

Take Furniture, Furnishings, and Equipment, for example. The phrase and its “FF&E” abbreviation appeared just 21 times in the B152-2007. By contrast, the B152-2019 contains 93 references to FF&E.

The titles of the old and new B152 foreshadow the new FF&E emphasis:

• AIA DOCUMENT B152-2007, Standard Form of Agreement Between Owner and Architect for Architectural and Interior Design Services

• AIA DOCUMENT B152-2019, Standard Form of Agreement

…
Continue Reading The B152-2019 Interior Design Agreement: Important FF&E Changes

This article first appeared in Thompson Reuters Construction Accounting & Taxation, July/August 2009 – Vol.19, No. 4, and is reprinted with permission.

Is it worth pursuing your construction claim?

The decision to proceed may not be clear-cut. This post analyzes some factors potential claimants should consider when determining whether to file a lawsuit or demand for arbitration. 

I wrote the article below (published article available here) during the last major downturn, around 2009, but many of the same thoughts and principles apply in 2020.

The recent economic downturn has left many in the construction industry wondering whether it is worth…
Continue Reading Is It Worth Pursuing Your Construction Claim?

This article first appeared in the Construction Law Newsletter, Volume 35, Number 5 (May 2019), co-authors Mark C. Friedlander and Jeremy S. Baker

Arbitrator-Directed Arbitration: A Proposal to Improve Arbitration

Arbitration was once the darling of the construction industry, with parties intentionally sacrificing the safeguards of litigation, and its expensive and inefficient procedures, in favor of fair, quick, and cost-efficient dispute resolution.

Many in the industry, including the authors, continue to believe that knowledgeable construction arbitrators reliably produce better decisions, even without arcane litigation procedures, than judges who may lack design and construction knowledge.

However, arbitration has fallen into disfavor…
Continue Reading Arbitrator-Directed Arbitration: A Proposal To Improve Construction Arbitration