Top 10 Take-Aways from the 2025 Mid-Winter Meeting in Tampa

The ABA Forum on Construction Law convened last week in Tampa, Florida for its Mid-Winter Meeting. This year's program was focused on owners and developers. Kudos to Jessica Courtway, Joel Heard, Keith Bergeron, and Tom Dunn for putting together an insightful slate of plenaries and activities. While it would be impossible to sum up everything I learned, below are my top 10 take-aways.

10. Dispute Review Boards are not just for public infrastructure projects. Usually comprised of a mix of 1-3 industry professionals, a Dispute Review Board ("DRB") can be implemented at the inception of construction projects to help quickly resolve disputes or, better yet, avoid them entirely. DRBs have been steadily gaining in popularity since their inception in the late 1970s. While used widely on large, publicly funded infrastructure projects, DRBs have yet to be fully embraced by the private sector. I moderated a panel comprised of Bill Franczek and Deb Mastin about the value DRBs can bring to complex, time-critical projects. At least one case study done by the Florida Department of Transportation suggests that the incidence of both time and cost overruns on projects that used a DRB were significantly less compared to projects that did not. While owners will need to build in a budget for the DRB members' fees, that expense is a small fraction of the total project cost and (much like the cost of a good insurance program) pale in comparison to the litigation costs which they could help avoid. And, since DRBs ensure contractors will have access to a dispute resolution process that is less owner-biased than the default situation (where the architect or government official serves as initial decision maker) some contractors have even expressed a willingness to lower their bid where an owner is willing to adopt a DRB for their project.

9. Doing what's right for the project may not coincide with what is cheapest. Despite the bias being that developers are all about maximizing returns, the best developers recognize that it is not all about the bottom line. Josh Taube, one of the headliners of the "Meet the Developers" panel shared that he will often spend more to get the best talent on the job. Joe Lopano (CEO of Tampa International Airport) spoke passionately about how he advocated for a tram-based system to convey travelers to the airport's remote rental care center; even though it was more expensive than a bus-based system, Lopano fought for it because he believed it was the right choice for the project. And Ed Kobel—who converts vacant office buildings into residential living spaces—discussed the focus his company places on the tenant experience which make his buildings a better place to live and deliver value by encouraging tenant retention. Kobel has learned that if a tenant makes just one friend in their apartment complex, there is an 87% chance they will renew their lease. As a result, his company focuses on how to create a design that fosters community.

8. Skipping out on independent project oversight can be penny wise and pound foolish. Owners oftentimes hire third-party owners' representatives to oversee their construction projects. Whether they should do so depends on a number of factors but should never come down to cost, according to panelists Laura Jo Lieffers, Diane Utz, and Brian Hanifin. Whenever the owner lacks the time, attention, or experience to ensure successful completion of the project, retaining the services of a separate owner's representative can be a good idea.

7. Maintenance considerations will be part of any successful design process.

I.M. Pei's Grand Pyramid

Panelists Mike Koger and Robin Zeidel spoke to the notion that more thought should be given in the design process to how a building will be lived in and maintained after the project is completed. Eliminating design elements which will be impractical to maintain should be at the forefront of any owner's consideration during the planning process. Such considerations will not always be made by the architect. After I.M. Pei designed the Grand Pyramid for the new entrance of the Louvre in the 1980s, it was not clear whether it could actually be cleaned. Since traditional scaffolding was not an option, mountain climbers were lowered down the face of the pyramid to do the work by hand until a special robot was developed to automate the cleaning process.

6. Attorneys should think twice before converting consulting experts into testifying experts. It is common practice for attorneys to hire a consulting expert to assist with case development at the outset of a dispute and designate that same expert as a testifying witness later in the case. While doing this achieves cost savings and reduces complexity, it is not ideal according to Harper Heckman, J. Paul Allen, and Jessica Knox. The better practice is to hire a different testifying expert and provide them only with the facts which they need to form an opinion in the case. In this way, communications with the initial consultant related to case/theory development will remain non-discoverable.

5. Cash flow is the oxygen that gives the project life. It’s not unusual for 60% of the cost of typical commercial and industrial real estate construction projects to be funded by debt. According to panelists, C. Randall Minor and Benton T. Wheatley, including debt in the capital stack can enable larger projects and spread the financial burden by aligning repayments with incoming cash flow from the project. Owners need to take care to comply with the disbursement requirements, however, so they don't negatively impact the flow of construction funding and potentially jeopardize the project altogether.

4. There are benefits in controlling the wrap insurance on any project. Most construction lawyers are familiar with Owner-Controlled Insurance Programs ("OCIPs") and Contractor-Controlled Insurance Programs ("CCIPs"). The main difference between the two different types of wrap policies is who between the owner and contractor will control and manage the program. Notwithstanding that the risk can be greater for whomever procures the coverage, Wendy Stein Fulton and Seth Schimmel always recommend that their clients be the one to procure the wrap coverage so they can ensure the premiums are paid and the necessary coverage is in place when it is needed.

3. Ensuring the ability to prove productivity claims is an exercise in good record-keeping.

The Division 1 lunch panel program (comprised of Leslie O'Neal, Brett Henson, David Ehrlich, Dr. Long Nguyen, and Tom Finnegan) was focused on the various factors that can result in lost labor productivity on construction projects and how such impacts can, and should, be substantiated.  Assuming the relevant contract documents do not foreclose disruption claims (some will), proving that the contractor should be entitled to more time or money due to labor impacts is not easy. It requires, at minimum, that the contractor be able to correlate its labor impacts to factors that were not anticipated and were outside its control. Some of the tools in project management software like Procore can assist with evaluating and either buttressing or undermining asserted productivity claims.

2. Balance is still needed in regulating board management of Florida's condominium associations. On June 21, 2021, Champlain Towers South, a 40-year-old condo building in Surfside, Florida, collapsed, tragically killing 99 people. The investigation that followed revealed that the collapse was precipitated by the failure of the waterproofing at the building's pool deck. The condo board had known about the issue for five years but elected not to address it since the repair carried with it a hefty price tag of $15 million. The Surfside collapse has become the hallmark example of what can occur when condo boards are permitted to defer necessary maintenance to spare their bottom line. While the pre-Surfside incentives certainly needed some re-alignment, according to panelists Dr. Evan McKenzie and Kristi Stotts, the Florida State Legislature may have gone too far in the opposite direction in adopting Florida Senate Bill 4-D. Senate Bill 4-D requires periodic benchmark inspections and establishes that the failure to reserve for necessary maintenance can be a breach of a volunteer condo board member's fiduciary duty. While well-meaning, Senate Bill 4-D has driven up the cost of condo living and devalued these assets overnight.

1. A diverse arbitration panel fosters a full and fair hearing of any dispute. Opting for arbitrators who have different identities, experiences, and backgrounds from one another is the best way to ensure that they will be less susceptible to "groupthink" and will reach a determination that is well-reasoned and fair. Professor Homer La Rue, Patricia Thompson, and Leah Wilson spoke of the need for ADR service providers to ensure that the panels from which arbitrators are selected are sufficiently diverse. And, since lawyers are less likely to recommend an arbitrator whom they don't know, diverse arbitrators need to do what they can to increase their profile among attorneys who may be in a position, one day, to retain their services. To that end, any arbitrators and mediators who are looking for a platform to publicize their experience and services will find a ready-made platform in Division 1 of the Forum. If you are an ADR professional and are interested in being added to Division 1's directory of ADR neutrals and/or profiled as part of our "Meet the Neutrals" series, please contact me at mdowns@lauriebrennan.com.

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Author and Editor-in-Chief Marissa L. Downs is a construction attorney in Chicago, Illinois where she has been practicing law since 2009. Marissa is a partner at Laurie & Brennan, LLP and represents owners, general contractors, and subcontractors in all phases of project procurement, claim administration, litigation, and arbitration/trial. Marissa can be contacted at mdowns@lauriebrennan.com.