Holloway Consulting - Construction Consultants Experts Witnesses Advisors Managers

Defective Plans Specs Claims – Constructability Bidability

Staff — Mon, 13 Feb 2012 14:13:57 +0000

The Holloway Consulting Group, LLC has posted a series of articles here at hcgexperts.com on how we work as Construction Claims Consultants to assist and advise our clients on the resolution of construction claims and disputes. We have also posted a Contractor Claim Entitlements summary at disputesinconstruction.com.

This post is on contractor construction claims and entitlement associated with Defective Plans and Specs, or Defective Contract Documents, and how constructability reviews can be of benefit to the owner.

Defective Plans Specs Claims

Constructability and Bidability Reviews

The 15,000 subscribers to our newsletter recognize the need for the parties to review the contract documents, plans and specs for errors, omissions and conflicts that lead to claims. In addition, work products of design professionals can also be subjected to construct-ability and bid-ability reviews, using the services of engineers and inspectors or outside consultants. The goal is to produce a basis for the bid that is not only clear as to design intent, but also clear as to construct-ability.

But how can the owner and his agents determine whether the contract bid package is an adequate basis for a bid? The architect and its consultants can provide service to the owner (and minimize their own liability) by ensuring that:

1. Specifications and divisions are appropriate and conform to a standard industry format.
2. Procedures for contractor material substitutions are clear.
3. Appropriate material and equipment standards are specified.
4. Sole source or brand name materials or equipment are eliminated or minimized.
5. Technologies and systems are consistent.
6. Plans and specifications allow the selection of appropriate construction means, methods and techniques.
7. Cross-reference of drawings and specifications are complete.
8. There is a complete description of owner-furnished items.
9. Definitions of items of work provided by each contractor for multiple contracts are clear.
10. Quality control responsibilities of the contractor and owner are defined, with clear statement of tests and access requirements.
11. Submittal requirements are clear.
12. Review period for submittals is identified and appropriate.
13. The construction schedule is feasible and clearly defined with schedule interface points identified.
14. Completion dates are specified.
15. Supplemental data is referenced.
16. Disposal areas for excess material and waste are identified.
17. Divisions of work are identified at contractor interfaces.
18. Drawings are sufficiently detailed and work scope is defined.
19. Structure of the bid form and bid schedule is clearly defined and unambiguous.
20. Proper units are used for bid items.
21. Bid items are clear as to scope.
22. Bid quantities are reasonable for the scope defined.
23. Bid items are coordinated with drawings and specifications.
24. Progress measurement and payment mechanisms are clearly defined and reasonably coordinated with bid items v.
25. Change order and change request procedures are defined.
26. The plans are consistent with the owner’s budgetary requirements vi.

And, the right side bar of each page here contains other articles and posts on defective contract documents.

The Holloway Consulting Group, LLC
Construction Managers, Consultants and Experts
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International Toll Free: (888) 545-0666
Fax: (303) 716-0432

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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See Related Selected Pages at our site disputesinconstruction.com (2-12-12)

Construction Contract Claims Consulting Experts – Entitlement

Staff — Fri, 10 Feb 2012 13:47:50 +0000

Working as contractors and experts over the past 40 years, Holloway Consulting understands the challenges contractors face on projects. This is the latest page in our series about how Holloway Consulting helps contractors resolve claims efficiently and effectively

Construction Contract Claims Experts

Contractor Claim Entitlements

Entitlement

Entitlement is the legal basis of the construction claim. It may be derived from a contract clause, or the principals of law, which set forth the duties and responsibilities of the individual, such as implied warranty. Therefore, an understanding of construction contract entitlement is one of the prerequisites to the preparation of a successful claim.

The administrative boards and court system of the federal government are clearly at the forefront of construction contract law. With growing frequency, state and local courts are looking to the federal system for guidance and direction on construction matters. As a result, the basic types of entitlement recognized at the federal level have gained nationwide recognition.

As illustrated above, disputes that arise in engineering, manufacturing, and construction contracts have grown more complex with each passing year. However, for purposes of the contractor’s claim evaluation, the causal factors can be associated with a few basic types of entitlement. Although a steady flow of new construction case law continues to modify entitlement theory, as of today, at least sixteen types of claim entitlement have emerged from the federal court system:

1. Acceleration
2. Cardinal Change
3. Constructive Change
4. Contract Termination
5. Defective and Deficient Contract Documents
6. Delay
7. Differing Site Conditions
8. Directed Change
9. Implied Warranty
10. Impossibility of Performance
11. Maladministration
12. Owner-Furnished Items
13. Strikes
14. Superior Knowledge
15. Weather
16. Work Suspension

How, then, does the contractor go about establishing entitlement to a claim? The answer to that and other related questions will be addressed at this site and at www.disputesinconstruction.com, as we examine each entitlement in detail.

Do you have a question or comment on contractor claims?
Would you like for us to address a specific issue?

Call Holloway about your project.

Holloway Consulting
Construction Claims Experts
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International Toll Free: (888) 545-0666
Fax: (303) 716-0432

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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Selected Post at disputesinconstruction.com

Construction Contract Claims – Causes and Quantum

Staff — Tue, 07 Feb 2012 13:55:56 +0000

Having worked as construction contractors over the past 40 years, Holloway Consulting understands the challenges contractors face in achieving profitability on projects. This is the latest page in our series about how Holloway Consulting helps contractors resolve claims

Construction Contract Claims

Determining Causes and Quantum Of Contractor Claims

Quantum

There will be times when a construction contractor will recognize entitlement prior to quantum or damage, and other times when the inverse will be true. On those occasions when entitlement precedes damage, the contractor should immediately place the owner on written notice regarding the timing and nature of the causal events. In fact, in the absence of timely written notice, many claims will be barred by contract.

On those occasions when extra costs or damages are recognized ahead of entitlement, the contractor should immediately undertake an investigation into the status of the work to identify the potential causes. (Holloway has developed questionnaires to guide the contractor (and owner) through the initial phases of these investigations.)

Causes Of Contractor Claims

The complexities inherent in the claim identification and resolution process are illustrated in a brief examination of some of the consistent causes of contractor claims against owners, in both private and public contracts:

1. The owner’s failure to adjust the construction schedule, or grant a time extension, even in the face of valid contractor claims.

2. Changed conditions relating to the contract between the Owner and Contractor that are so dramatically different as to render the original agreement void.

3. Conditions outside the base agreement that are unilaterally imposed by the Owner onto the Contractor.

4. Contract documents that contain errors and omissions, code violations, or a lack of inter-discipline coordination.

5. Failure of one or more of the parties to perform in a timely manner, thereby delaying the other party.

6. Failure of the owner’s agent to perform proper investigation of subsurface and/or site conditions.

7. Changes in the work unilaterally imposed by the owner onto the contractor.

8. Conditions known only by the owner that will adversely affect the contractor’s performance.

9. Project conditions not contained in the contract documents that prevent a party from performing efficiently.

10. Overzealous, deficient, or unreasonable performance on the part of an Owner’s agent.

11. Unilateral or uncompensated suspension of the contractor’s work.

12. Contracts that are terminated by the owner, either for convenience or for cause.

13. Abnormal or unusual weather conditions.

14. Untimely delivery or deficiency in a component furnished by the owner.

There may, of course, be other causes of contractor claims, but the foregoing represents causes that repeatedly occur on construction projects.

Call Holloway about your project.

Holloway Consulting
Construction Consultants and Expert Witnesses
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International Toll Free: (888) 545-0666
Fax: (303) 716-0432

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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Selected Post at hcgexperts.com

PROJECT SCHEDULING – PDM

SCHEDULING METHODS

BAR CHARTS

Disputes – InFormal – Formal

SCHEDULING SERVICES

TIMELY NOTICE

HOLLOWAY SCHEDULING CONSULTING

LIQUIDATED DAMAGES

MANAGEMENT CONSULTANT SERVICES

RIGHT TO FINISH EARLY

PROJECT SCHEDULE FLOAT

DETERMINING THE CRITICAL PATH

CPM SCHEDULING

DIFFERING SITE CONDITIONS

Differing Site Conditions 2

– Differing Site Conditions Claims – Types 1 and 2

CLAIMS DSC

Differing Site Conditions 2

DEFECTIVE PLANS AND SPECS

DEFECTIVE CONTRACT DOCUMENTS

DEFECTIVE DOCUMENTS

Subcontractor Claims Consultant

BID PREPARATION

BIDDING and STAFFING

Acceleration and Delays

Construction Contract Claims Consulting Expert Witness

Staff — Wed, 01 Feb 2012 14:05:23 +0000

Having worked as construction claims consultants and experts over the past 22 years, Holloway Consulting understands the challenges contractors face in achieving profitability on projects. This is the latest page in our series about how Holloway Consulting helps contractors resolve claims and disputes and remain profitable.

Construction Contract Claims

Disputes Consulting Expert Witness Work

Construction Reality Versus Utopia

In utopia, the owner never makes any changes – the A/E’s documents are error-free – the contractor performs perfectly – and Mother Nature behaves herself. Regrettably, construction utopia does not exist. In the real world, with uncanny predictability, the forces of the Owner, A/E, contractor, and Mother Nature often combine to create conflict: The Owner changes his mind – The A/E changes the design – The Contractor fails to perform properly – Mother Nature changes what the others have missed. A claim results.

Construction Claim Elements

The 15,000 subscribers to Holloway’s newsletter understand that a construction claim is an unresolved dispute between the parties to a construction contract that is comprised of three elements:

1. Entitlement – the contractual or legal basis of the claim,
2. Quantum – the damages or dollar value of the claim, and
3. Causation – the relationship between the entitlement and the damages.

Any one element, without the other two, is of little value.

Claims are a common element of today’s construction industry. The contractor who proudly boasts, “My company has never had a claim”, is endanger of becoming an extinct species. To survive in today’s construction marketplace, the contractor must understand his rights and be quick to implement the techniques of survival when a potential claim situation arises.

Read the next article on contract claims.

NEWSLETTER

Click here to sign up for Holloway Consulting’s free e-mail construction industry newsletter, The Em@il Construction Reporter. Subscribers include developers and owners; general and trade contractors; engineers and architects; sureties and carriers; local and state public agencies

Search our site for information of interest:

Call Holloway about your project.

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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Construction Contracting | Claims | Consultants | Experts

Staff — Mon, 30 Jan 2012 14:30:23 +0000

Having worked as construction consultants and experts over the past 22 years, Holloway Consulting understands the challenges contractors face in achieving profitability on projects.

Construction Contracting and Claims

Introduction

It has been said that contracting is comparable to gambling: Both have limited upside, with almost unlimited downside. The risky nature of the industry is further reflected in the fact that approximately 30% of all contractors survive only three years. These factors understandably contribute to a claims consciousness within the AGC and ABC communities. However, in spite of many contractors’ aversion to disputes, the decision to file a claim or lawsuit against an owner on a project may represent the only means of staying in business.

The Construction Environment

Partnering efforts notwithstanding, the nature of construction projects creates a predictable set of opponents: the Owner and the Contractor. Rules of conflict are drawn up and recorded in the contract documents. Throughout the various stages of the work, both sides are repeatedly reminded of their lack of common interest. Battle lines are formed and the war begins. Both sides understand the basic rules; the Contractor seeks to maximize revenues – the Owner needs to minimize expenditures.

These competing positions contribute to a project atmosphere that can quickly change from one of tolerance, to one of suspicion and ill will. The owner and contractor begin to argue about the issues, and exchange threatening (and sometimes entertaining) correspondence. To further expand the dimensions of the problem, the owner’s agents become emotionally and/or legally involved and join in the fight. By default, management of the project is often left to the subcontractors. The general contractor soon reports a financial loss, and attorneys and experts are retained to assist in final resolution.

Read the next article on contracting and claims.

NEWSLETTER

Search our site for information of interest:

PLEASE CONTACT US ABOUT YOUR PROJECT.
Holloway Consulting
Construction Consultants and Expert Witnesses
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International Toll Free: (888) 545-0666
Fax: (303) 716-0432

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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Construction Expert Report Project Data Gathering

Staff — Sat, 28 Jan 2012 13:45:59 +0000

Do you have an Expert Report deadline? Holloway Consulting is often contacted shortly before report deadlines and asked to prepare an expert report and/or rebuttal report.

This page continues Holloway’s series on some of the theoretical concepts that we often try to include in our construction expert reports:

Construction Expert Reports

Report Structure

Project Data Gathering

Project Data is the accumulation of physical evidence that records the contract, performance of the parties, and factors that affected their performance. Regardless of the dispute resolution forum (negotiation, arbitration, or litigation), all project data incorporated in the work product Data Base and/or evaluated during Holloway’s analysis should be admissible as evidence. This data typically excludes attorney-client work product.

The primary source of data is our client’s normal business records, generated during the life of the contract. Secondary data sources may include the files of the other party, third parties (such as the A/E), non-related parties (such as other contractors), and off-site agencies.

Data is important because the work product should be founded on admissible evidence. Most of the data gathering process is accomplished during the early stages of our engagement: interviewing the client’s personnel, plowing through filing cabinets, etc. The process demands maximum amounts of dogged determination and perseverance.

Some of the best data is found during second and third round efforts, which our analysis enables us to focus on specific details during follow-up interview and paper search sessions.

Interviews

The primary purpose of the first-round interviews with the client’s personnel: find out enough about the project and the problems to define our data gathering in terms of what to look for and where to find it. The notes of these initial meetings are often not valuable data; they only record the client’s recollection of the project and its problems. The facts gathered by first-round interviews must be validated by admissible data. It is not uncommon to discover that the client’s recall of facts, and his/her perception of problems, are faulty.

The first part of the interview should concentrate on the harvesting of specific facts:

dates,
dollars, and
data.

This series of Holloway Consulting articles is on the theory, technique and structure of the effective construction expert report and claim presentation.

Contact Holloway about your expert report or claim.

Use this tool to search our site for information of interest to you:

Holloway Consulting
Consultants and Expert Witnesses
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International Toll Free: (888) 545-0666
Fax: (303) 716-0432

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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See Selected Posts at our site, disputesinconstruction.com

Approaching Construction Expert Report deadline? Call Holloway Consulting.

Staff — Thu, 26 Jan 2012 13:45:09 +0000

Searching for a Construction Expert? Approaching an Expert Report deadline?

Holloway Consulting is often contacted shortly before report deadlines and asked to prepare an expert report and/or rebuttal report.

This page continues our series on some of the theoretical concepts that we often try to include in our construction expert reports:

Construction Expert Reports

Report Structure

Entitlement and Damages

Entitlement: the legal foundation of the claim; derived from the contract language and case law precedent.

Damages: the dollar value of the claim; the additional compensation that the contractor is entitled to receive.

These two parts, entitlement and damages, are the heart and lungs of the claim. If either part is missing, the claim dies.

Cause and Effect

“My thumb hurts, because I smashed it with a hammer.”

Cause: A person or thing that acts, happens, or exists in such a way that some specific thing happens as a result; the producer of an effect. You have been the cause of much anxiety. What was the cause of the accident? A cause is an agency, perhaps acting through a long time, or a long-standing situation, that produces an effect.

Effect: Something that is produced by an agency or cause; result; consequence. We give the name of cause to that event which precedes, and the name of effect to that event which follows in the order of time.

To describe cause and effect, use the magic word-BECAUSE. It is most effective in the middle of the sentence, linking the subsequent effect to the preceding cause.

• My thumb hurts because I hit it with a hammer.
• I hit my thumb because the cat bit me.
• The cat died because my thumb hurt.

Back to the quotation. The cause is the hammer blow. The effect is the hurt. Note the time relationship: the effect follows the cause. Also note the endless prospects for cause-effect chains. The stated cause (hammer blow) may be the true effect of a preceding cause (the cat bit me on the downstroke). The stated effect (hurt) may be the true cause of a subsequent effect (dead cat).

These chains of cause and effect play a vital role in the claim presentation. First, the claim analysis must unravel and track the chains of cause and effect. Second, the claim presentation must fully describe and document those same chains.

Adequate development of cause-effect within the claim presentation is not a natural by-product of the writing process. It is the specific result of preplanning each problem narrative.

This series of Holloway Consulting articles is on the theory, technique and structure of the effective construction expert report and claim presentation.

Contact Holloway about your expert report or claim.

Use this tool to search our site for information of interest to you:

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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See Selected Posts at our site, disputesinconstruction.com

Need a Construction Expert to Prepare An Expert Report?

Staff — Tue, 24 Jan 2012 13:58:34 +0000

Are you searching for a Construction Expert? Do you have an approaching Expert Report deadline?

In our construction litigation engagements, Holloway Consulting is often asked to prepare an expert report and rebuttal report.

This page provides a brief summary of some of the theoretical concepts that we often try to achieve in expert reports:

Construction Expert Reports

Report Structure

Objective and Theory

The street beggar asks for a dime – and sometimes succeeds because his plight is obvious and his request is small.

The contractor asks for a million dollars – and gets nothing.

To recover a million dollars (or any substantial sum) from the opposing party, the claim should be presented in a clear and convincing package. Clear, so the other party understands the claim. Convincing, so the other party appreciates the merit of the claim.

Clear is the art and science of communication:

1. Carefully designed bundle of words and pictures,
2. Deliberately structured to induce and encourage understanding,
3. Crafted with clear and concise English,
4. Supported with crisp and easy-to-grasp visuals.

Convincing is the science of forensic engineering:

1. Consisting of a thorough analysis and proof of entitlement/quantum welded to the logical and supportable demonstration of cause/effect,
2. Satisfying the demands of the contract and the courts,
3. Proving the merits of the claim to a reasonable certainty.

Forensic Engineering is the catalyst of claim and dispute settlement, because it convinces the other party that the claim is unlikely to be defeated.

Summary

The contractor asks for a million and gets nothing because his request is too big. Few, if any, would pay a million dollars without a clear and convincing cause.

A vast gulf separates the beggar’s dime and the contractor’s million dollars. The effort required to prevail in the contractor’s claim demands talent, technique, and challenging work.

What follows in this series of Holloway Consulting articles is the theory, technique and structure of the effective construction expert report and claim presentation. Read More here . . .

Contact Holloway about your claim.

Search our site for information of interest:

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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Louisiana Construction Engineers Claims Consultants Experts Witnesses

Staff — Sun, 22 Jan 2012 14:48:02 +0000

This page is for Louisiana and Gulf Coast clients seeking to retain a construction engineering, consulting firm, claims expert or expert witness.

Holloway Consulting is a Construction Consulting Firm with offices in Louisiana and Colorado, providing services to all parties participating in the engineering and construction process including law firms, public agencies, developers, owners, design professionals, construction managers, general and trade contractors, in both U.S. and Non-U.S. locations.

We have extensive experience working in Louisiana as engineer, General Contractor, expert witness and consultant. Projects include:

Regional Medical Center
LSU Stadium West Side Expansion
Jefferson Parish School System Proejcts
200 unit apartment complex
343 unit apartment complex
Ammonia Production Units;
Strategic Petroleum Reserve
Crude Oil Refinery Upgrade Project
Crude Oil Storage Facilities
Harrah’s Casino – Hotel – Shreveport
Harrah’s Casino – Hotel – New Orleans
Hurricanes Katrina, Gustav, and Rita repair damages
MDI (chemical) Production Plant
Paragon Casino – Hotel
Polyethylene production unit
St. Charles Hospital
Wetlands Effluent Treatment and Discharge System

Contact Holloway about your Louisiana projects

Search our site for information of interest:

Holloway Consulting
Engineers, Consultants and Expert Witnesses
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International Toll Free: (888) 545-0666
Fax: (303) 716-0432

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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Water Pipeline, Tampa

Florida Construction Claims Litigation Consultant Expert Witness

Staff — Fri, 20 Jan 2012 17:45:35 +0000

This page is for Florida and Gulf Coast clients seeking to retain a Construction Claims Expert or Litigation Consultant or Expert Witness.

Holloway Consulting is a Construction Consulting Firm with offices in Louisiana and Colorado, providing services to law firms, public agencies, developers, owners, design professionals, construction managers, general and trade contractors, in both U.S. and Non-U.S. locations.

We have extensive experience working in Florida both as General Contractor and Consultant/Expert Witness.

$20 million custom home, Naples, Florida

The dispute arose as costs exceeded the $3.8 million budget, and litigation arose when costs reached the $15 million range. The Owner couldn’t understand why costs had risen so high; and the Contractor couldn’t understand why the Owner didn’t understand how and when the scope and costs had changed so significantly. Read more . . .

Disney’s Grand Floridian Resort Hotel, Disneyland, Florida

Holloway was a member of the General Contractor’s staff on this job.

Hurricane repair damages, Miami and South Florida

Holloway has worked as the hurricane repair damage and insurance coverage consultant on various matters.

Business Center, Pompano Beach, Florida

The Holloway Consulting Group was retained by the Owners to perform an audit of costs and cost-related documents associated with the construction of the Business Center Building and the associated roadway. The purpose of the audit was to:

1.   Determine if the costs charged to the Owner were allocable to the job and reimbursable under the terms of the contract,
2.   Determine the final cost of the work,
3.   Determine final payment to the Contractor, and, if appropriate,
4.   Allocate any cost savings.

Metro Dade Police Headquarters Facility, Dade County, Florida

Holloway was a member of the General Contractor’s staff on this job.

New High School, North Palm Beach, Florida

Holloway was a member of the General Contractor’s staff on this job.

Contact Holloway about your Florida projects

Search our site for information of interest:

Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com

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