Practical Construction Law

A special two-day course in the law's realistic effect on your construction operations.

For the contractor, the owner, the architect/engineer, and the lawyer.

The law—if properly recognized, understood and applied—can be an ally, not an enemy. That’s what this course—Practical Construction Law—is all about.

The course’s purpose is to instruct you in the law’s realistic application to your construction operations. It endeavors to show you, in down-to-earth terms, the factors that must be considered at every stage of the construction process—factors that can help you, that can further your objectives,—that can harm you, and how the law can shield you from such harm.

To do this, we have commissioned two specialists in construction law. They are professionals who work, day in and day out, with construction contractors—professionals who know the things that happen and how they happen—and, most importantly, professionals who know what can and can’t be done about it all.

We offer the program in concentrated form—two days of hard work by both you and the instructors. We offer it in the belief that it will make you aware of the law’s value as a partner in your business.

Practical Construction Law Course Curriculum

Qualifying to Do Business
1. Local vs. Out-of-State Corporation
2. Registration in New State
3. Joint Venture Considerations
4. Business Licenses
5. Sales and Use Taxes
6. Consequences of Failure to Comply
7. Cures for Failure to Comply
Types of Contracts
1. Fixed-Price Competitively Bid
2. Unit-Price Competitively Bid
3. Cost-Plus Negotiated
4. Limited-Cost-Plus Negotiated
5. Design and Build
6. Turnkey
7. Construction Management
Bidding on Private Work
1. Analyzing the Bid Invitation
2. What to Look For and Out For
3. “Information” Invitations
4. Problem of Missing Elements
5. Evaluation Standards-Price and Others
6. Owner Rejection of All Bids
7. Strict Bidding, Negotiation and Mixtures
Bidding on Public Work
1. The “Low Bidder” Statutes
2. Responsiveness of Bid
3. Alternates in Invitations and Bids
4. Variations in Public Procedures
5. Politics, Influence, Ethics . . .Trouble
Mistakes in Bidding
1. What Can Happen
2. Bidder’s Unilateral Mistakes
3. Bidder-Owner Mutual Mistakes
4. Procedures for Relief
5. Types of Remedies
Bid Bonds
1. Bond Types and Terms
2. Other Forms of Security
3. Use in Private Work
4. Use in Public Work
5. Liability and Defenses
Payment and Performance Bonds
1. Standard Bond Forms
2. Scope of Coverage
3. Who Eecovers and How
4. Contractor Defenses to Liability
5. Surety Defenses to Liability
6. Rights of the Surety
7. Indemnity Provisions
Standard Contract Forms
1. Owner-Architect: AIA
2. Owner-Engineer: NSPE
3. Architect-Engineer: AIA and NSPE
4. Architect-Contractor: AGC
5. Owner-Contractor: AIA, NSPE and AGC
6. Contractor-Subcontractor: AIA
7. Construction Management: AIA and AGC
8. State & Municipal Provisions
9. Similarities and Differences in Forms
10. What to See and What to Avoid
Uniform Commercial Code
1. What Is It
2. Application to Construction Work
3. Application to Equipment
4. Application to Subcontracts
5. Avoiding the Code
6. Effect on Contract Formation
7. Effect on Contract Terms
8. Unconscionability
9. Commercial Impracticability
10. Validity of Liability Disclaimers
11. Warranties
Interpreting the Contract
1. Rules of Interpretation
2. Contract’s “Four Corners”
3. Parties’ Intent
4. Concurrent Interpretation
5. Custom and Usage
6. Technical Terms
7. Grammatical Errors
8. Specific vs. General
9. Mention One/Exclude Others
10. Reasonable and Consistent Analysis
11. Avoiding Useless Performance
12. Contract as a Whole
13. Interpretation Against Drafter
14. Evidence Outside the Contract
15. Implied Terms
Authority and Responsibility
1. Actual and Apparent Authority
2. Who Can Bind Whom
3. Owner/Architect/Contractor Representatives
4. Contract Interpretation Authority
5. Authority to Order Performance
6. Ordering Contract Changes
7. Prescribing Authority Limits
8. Preventing Unauthorized Acts
9. Owner/Architect Supervision, Coordination and Cooperation
10. Failure to Enforce Contract
Contract Changes
1. Owner’s Right to Change Work
2. Contractor’s Duty to Perform
3. Owner/Contractor Agree Changes
4. Owner’s Unilateral Change Orders
5. The “Constructive” Change
6. Defective Plans and Specifications
7. Erroneous Interpretation
8. Higher Standard of Work
9. Improper Rejection
10. Dictating Performance Methods
11. Impossibility/Impracticability
12. Contractor’s Protest Before Performance
13. Remedies
Changed (Differing Site) Conditions
1. Pre-Bid and Post-Bid Conditions
2. Physical and Non-Physical Conditions
3. Man-Made Conditions
4. Conditions Below Ground
5. Latent Above-Ground Conditions
6. Owner’s Fraud; Concealment
7. Owner’s Innocent Misrepresentation
8. Site Investigation and Other Inquiry
9. Reliance on Owner’s Data
10. Notice by Contractor
11. Contractor Duty to Perform
12. Remedies
Delays and Acceleration
1. Scheduling Techniques
2. Agreement on the Schedule
3. Schedule Revisions
4. Notice of Delays
5. Unexcusable Delays
6. Damages for Delay
7. Excusable Delays
8. Suspensions of Work
9. Time Extensions
10. Dollar Recovery
11. Elements of Acceleration
12. Recovery for Acceleration
Calculating Damages
1. Basic Principles of Recovery
2. Damages Aspects of Changes, Changed Conditions, Delays, Aacceleration
3. Labor Costs
4. Material Costs
5. Equipment Costs
6. Other Direct Costs
7. Inefficiency Factors
8. Disruption Costs
9. Costs of Unchanged Work
10. Field Overhead
11. Home Office Overhead
12. Extended Overhead
13. Loss of Business
14. Loss of Bonding Capacity
15. Profit
Subcontract Provisions
1. Tying Subcontractor to Contractor’s Liability
2. Flow-Down Clauses
3. Scope of Work Clauses
4. Modification Clauses
5. Payment Clauses
6. Indemnity Clauses
7. Default Clauses
8. Disputes Clauses
9. Special Provisions
Subcontract Administration
1. Bid Shopping Risks
2. Subcontractor's Bid withdrawal
3. Firms Subcontractor Bids
4. Subcontractor's Obligations
5. Monitoring Sub's Performance
6. Contractor’s Coordination Duty
7. Contractor’s Cooperation
8. Subcontractor's Access to Site
9. Job Site Conditions
10. Disputes Between Subcontractors
Subcontractor Defaults
1. Assistance to Defaulting
2. Financing the Subcontractor
3. Reletting Subcontractor's Work
4. Sub's Performance Bond Surety
5. Notice and Demand on Surety
6. Surety Defenses
7. Irresponsible Sureties
8. Payments to Sub-subs,Suppliers
9. Monitoring Sub’s Payments
10. Contractor’s Direct Payments
11. Avoiding “Double Payments”
12. Lien and Bond Releases
13. Sub’s Payment Bond Surety
Owner Inspection and Acceptance
1. Formal Acceptance
2. Punch-List Problems
3. Implied Acceptance
4. Acceptance of Defective Work
5. Effect of Failure to Reject
6. Impact of Interpretations
7. Certificate of Final Completion
8. “Substantial Performance” Doctrine
9. “Economic Waste” Principle
Contractor Warranties
1. Workmanship Warranties
2. Construction Warranties
3. Analysis of Warranty Clauses
4. Major and Minor Coverage
5. Implied Warranties
6. Proof of Warranty Breach
7. Owner’s Waiver of Warranty
The Sick Owner
1. Payment Problems
2. Bankruptcy of Owner
3. Rights Against Construction Lender
4. Lender’s “Inducements”
5. Preventing Foreclosure
6. Creditor’s Rights
7. Practical Bail-Out Possibilities
Preparation of Claims
1. Documentation Systems
2. Daily Logs
3. Use of Tape Recorders
4. Polaroid Photos
5. Notices, Letters and Memos
6. Experts
7. Charts and Graphs
8. Models and Samples
9. Coordinating Visual Aids
10. Your Lawyer-When and How
Negotiating Settlements
1. When to Negotiate
2. How to Prepare
3. Selecting Your Team
4. Analyzing the Opposition
5. Negotiation Techniques
6. Morals and Manners
7. Last Ditch Positions
8. Memorandum of Agreement
Arbitration of Disputes
1. Owners/Subs/Other Primes Disputes
2. Federal Arbitration Act
3. State Arbitration Statutes
4. Common Law Arbitration
5. Contract Arbitration Clauses
6. Arbitration Procedures
7. Enforcement and Challenge of Award
8. Effect on Continuing Performance
9. Waiver of Arbitration Rights
10. Disadvantages of Arbitration
Relief in the Courts
1. Federal and State Courts
2. Where to Go
3. Lien Rights and Limitations
4. Jury or Non-Jury Trial
5. The Discovery Tool
6. Presenting the Evidence
7. Practical Considerations
8. Types and Extent of Relief

Course Faculty

Robert B. Thum Partner in the San Francisco law offices of Thelen Reid Brown Raysman & Steiner LLP, where he specializes in construction matters • Lecturer on construction law for numerous business and professional groups • Member of the American Bar Association’s (ABA) Sections of Public Contract Law, Corporation Banking and Business Law, Natural Resources Law; the ABA’s Forum Committee on the Construction Industry; the American Arbitration Association’s Panel of Construction Arbitrators • Honors graduate of Princeton University, and honors graduate of Cornell Law School, where he served as an Editor of the Law Review.

Lee C. Davis of Atlanta Georgia is a partner in the firm of Sutherland Asbill & Brennan, limiting his practice to construction law and the resolution of construction disputes. Mr. Davis is involved in the negotiation, mediation, arbitration and trial of construction matters for his clients throughout the nation and internationally, representing contractors, subcontractors, owners and design professionals. Mr. Davis graduated magna cum laude from Williams College, where he was selected for membership in the Phi BetaKappa national honor society. He then attended Emory University School of Law, where he was a member of the Order of Barristers, the Moot Court Special Teams and the Moot Court Labor Law Team coach. Mr. Davis is a co-author of "Environmental Problems on the Georgia Jobsite", published by Federal Publications, and of "Design-Build Strategies". He has lectured extensively on construction law throughout the United States and abroad, including lectures and seminars at Colorado State University, The American Law Center in Moscow, and the Masters Institute on Construction Contracting (for Federal Publications), and has given lectures and seminars on Practical Construction Law (For Federal Publications), Architect-Engineer Liability and Construction Claims. A pilot and flight instructor, Mr. Davis is a member of the Atlanta Bar Association (including the Construction Law Section), the State Bar of Georgia and the American Bar Association, including the ABA's Section on Public Contract Law and the Forum on the Construction Industry.