ConstructionAdvisorToday

Coping With the “Battle of the Forms” With Suppliers

Dealings between a constructor and a material or equipment supplier can be tricky. A multitude of documents go back and forth. Each contains its own terms, sometimes conflicting with others. But there is agreement regarding price, quantity and delivery. The product is purchased and incorporated into the project. What happens, however, if there is a problem, a dispute? At what point was a binding agreement formed? Which terms and conditions governed the transaction?

In a recent Texas case, a subcontractor’s purchase order included precise specifications for the material it was buying. The supplier responded “as per your purchase order.” The material didn’t comply with the specifications. The supplier said it never agreed to the specifications. Under industry custom, contended the supplier, acknowledgment of a purchase order establishes price and quantity, but does not acquiesce to the terms and conditions of that purchase order.

This case illustrates the seriousness of the “battle of the forms.” The competing forms contain provisions addressing everything from the definition of the product to warranties and warranty disclaimers. How do you handle this situation? Is there a way to assure that your terms, not the “standard” terms and conditions of the other party, govern the transaction? I welcome your comments.

Featured in Next Week’s Construction Claims Advisor:

• Government Specification Conflicted with Manufacturer Warranty
• Payment Bond Rights Trump Arbitration Clause
• Contractor Was LLC Despite Lack of Mention in Contract

Program to Promote Energy Efficiency in California Launched

Officials have unveiled a program called Energy Upgrade California (EUC) to promote and finance energy-efficiency and renewable-energy projects for homes and businesses, reduce energy use, and help train contractors and building professionals across the state. More than $1.2 billion from various funding sources will be leveraged through EUC, including $146 million from the American Recovery and Reinvestment Act State Energy Program and Energy Efficiency Conservation Block Grant awards administered by the California Energy Commission (CEC),

Design Master Unveils 3D-BIM Versions of HVAC, Electrical, Plumbing Programs

Design Master Software has released new versions of its three programs – Design Master HVAC, Design Master Electrical, and Design Master Plumbing – that feature improved support for 3D-BIM. These products now can export an IFC file that can be used for 3D collision detection in programs such as Revit, Navisworks, and Sketchup. Hangers for ductwork and piping were added to Design Master HVAC and Plumbing. The hangers are displayed both on the 2D plans and in the 3D model.

Cut-and-Paste Specifications

There is no element of a construction contract more fundamental than the specifications. The specs define in detail many aspects of the work. It is surprising, however, how little thought and effort may go into the assembly of the specifications. There are many standard specs which are used over and over as a matter of course. Manufacturers provide specifications which are incorporated with no attention to coordination with other contract provisions. The specifications in any given contract may be nothing more than a “cut-and-paste” job.

This was illustrated on a recent project calling for replacement of a roof. The contract, quite typically, required the contractor to furnish the project owner with a manufacturer’s standard 20-year warranty. Yet the specifications, which had been written around and could only be met by one manufacturer, caused a problem. The specs called for the roof insulation to be attached to the roof deck in a manner which negated the manufacturer’s warranty. If the contractor complied with the specifications, it could not provide the warranty.

It is not necessary to reinvent the wheel each time a construction contract is prepared. The use of standard published specifications is not, in itself, bad. But the unthinking amalgamation of specifications can produce embarrassing and costly results. What is your experience? I welcome your comments.

Featured in Next Week’s Construction Claims Advisor:

• AIA Contract Can’t Be Terminated Without Architect Certification
• Specification Governed Special Provision
• Sub May Have Extended Acceptance Period for Proposal

ASHRAE Funds Research to Improve Building Maintenance, Operation Through Performance Data

The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) has approved a project to help specifying engineers and designers use building data to improve building operations, energy efficiency, comfort, and sustainability. Research Project 1633, "Data and Interfaces for Advanced Building Maintenance and Operation," is expected to yield a set of standard data-driven metrics, interfaces, and dashboards for advanced building operation and management.

Oracle's Primavera Contract Management Solution Chosen for $4.6-Billion Water System Improvement Program

San Francisco utility officials recently selected Oracle’s Primavera Contract Management solution to assist in one of the largest water infrastructure programs in the United States. The solution will serve as the backbone of a construction management information system (CMIS) for the $4.6-billion Water System Improvement Program (WSIP).

BIM and the Reality of Paperless Construction!

By Bob Hutchinson

Lightning has struck, the clouds have parted, and the prophets have come down from the mount and proudly proclaimed, “BIM is the paperless solution that shall be the savior of the construction industry!”  Hmmmmm, … really?  Well, … kinda?! Is there a need for BIM?  ABSOLUTELY! 

Just as in other types of manufacturing operations, BIM can prove invaluable for the early detection of conflicts and provide volumes of information when it comes to all of the pieces and parts. But when it comes to putting work in place, are we killing an ant with a 10-ton wrecking ball? In theory, BIM is a great solution that should bridge the gap to paperless construction. But as my old college law professor used to spout, “Theory is great right up until it gets bit in the butt by reality.” Feel free to replace the word “reality” with “stupidity” as you see fit.

Can Architects Be Neutral Arbiters Under the AIA Contract Documents?

The contract documents published by the American Institute of Architects are probably the most widely used private construction contract forms in this country. They assign a unique role to the project architect. Although retained by the project owner, the architect serves as the neutral arbiter of contractor compliance with the requirements of the contract.

The architect’s approval, or certification, is required for many significant events: progress payments to the contractor; release of retainage to the contractor; acceptance of the contractor’s work. But it is not just the contractor that is dependent on architect certification. It can also be a prerequisite to the project owner’s exercise of its contractual rights.

The owner’s dependence on architect certification is not illusory. In a recent Indiana case, a project owner terminated a contractor for default. The owner neglected, however, to obtain certification from the architect that sufficient cause existed to justify termination. Without the architect’s certification, the owner could not hold the contractor responsible for breach of contract.

What has your experience been with the role of the project architect under the AIA contract documents? Are most arbitrators professional and objective in their role as neutral arbiter of contract compliance? Or is there an inherent bias toward the project owner who has retained them? I invite your comments.

Featured in Next Week’s Construction Claims Advisor:

• Short Listing Procedure Slapped by Pennsylvania High Court
• Court Addresses AIA Construction Manager Agreement
• Limited Liability Company Substituted for Sole Proprietor

ANSI Expands ICC-ES PMG/WaterSense Program Accreditation to Include High-Efficiency Showerheads

ICC Evaluation Service (ICC-ES) earlier this month announced that the American National Standards Institute (ANSI) Accreditation Committee has voted to expand its accreditation of the ICC-ES/WaterSense PMG Listing Program to include high-efficiency showerheads.

Prior to this scope expansion, ICC-ES's ANSI accreditation included high-efficiency toilets, urinals, and lavatory faucets. Now, with the addition of showerheads, the ICC-ES/WaterSense program is comprehensive and includes a wider range of plumbing, mechanical, and fuel gas (PMG) products.

Ryan Companies Integrates Construction Project Management Software from Meridian with BIM

Ryan Companies U.S. Inc., a builder, designer, and real estate manager, is using building information modeling (BIM) in conjunction with Proliance software. Ryan is working with Horizontal Systems Inc., a Meridian Systems independent software vendor, to enable BIM data integration with its capital program management software system.

“Increasingly sophisticated technologies are improving our infrastructure life-cycle management processes, and enabling us to leverage BIM in a much more powerful way,” said Frank Sarno, Ryan’s director of construction applications.