Under Construction -- Paper, Online, or Both? The Forum wants to hear from you!

Survey: http://svy.mk/1SLxY94

Last year, the Governing Committee approved publication in paper of Under Construction, the ABA Forum on Construction Law's newsletter, for 1 year (3 paper editions).

The Governing Committee will be considering whether Under Construction should remain in paper or be published only online.  

The Forum would like to hear from its members as to how they would like to receive Under Construction. The survey consists of 10 questions and will take you 5 minutes or less to complete.  

Under Construction is always looking for contributions from its members.  In fact, in the Spring 2016 edition, the Under Construction editors challenged each Division to submit something for each of the 3 editions of Under Construction.  

Division 1 submitted articles for both the Winter 2016 edition (Brendan Carter and Daniel Kapner) and Spring Edition (Dan Valentine and Jim Cohen).  The Valentine/Cohen article was a compilation of their series originally published on The Dispute Resolver!  

Thank you for your time and feedback!

Tom Dunn
Associate Editor, Under Construction 
rtdunn@PierceAtwood.com

Meet the Dispute Resolver Staff: Brendan Carter

Meet the Dispute Resolver Staff

Brendan Carter, Esq. – Navigant

Brendan Carter started in the construction industry 16 years ago as a laborer performing general labor on commercial job sites and has been involved in the field in some capacity ever since.  A few of the other (hard) hats Brendan has worn over the years include estimator, project engineer, and project manager.   He is currently a Senior Consultant with Navigant’s Global Construction Practice focusing on dispute resolution consulting for construction litigation and ADR proceedings. Along with his Forum Division 1 membership, he is also a member of the Boston Bar Association’s Construction Law Committee.

Brendan grew up in Framingham, Massachusetts in a construction family with both his grandfathers in the trades, one owned a small town plumbing business and the other was a union bricklayer foreman. His father was also a professor of Construction Management and following in the family business, Brendan received his undergraduate degree in Construction Management from Wentworth Institute of Technology in Boston and a Masters of Construction Management from Western Carolina University in Cullowhee, N.C.  In his construction management role, Brendan was an onsite member of project teams that completed the Gaylord National Hotel and Convention Center in Washington, D.C., the former Pier Shops at Caesars in Atlantic City, NJ, and Merck Pharmaceuticals’ Boston Research Center in Boston, MA.

Looking to make a career change, but still wanting to stay involved in the construction industry, Brendan enrolled at the University of Massachusetts School of Law specifically to practice construction law.  While in law school, Brendan served as the Forum’s Student Division Liaison. As a member of the Forum he has also presented the Forum generated contract negotiation module to multiple ACE Mentor Program chapters in Boston over the past few years. He is encouraged for the future of the construction industry by the quality and acumen of the teenagers in the program that will be the next generation of architects, engineers, and construction managers.

 

When off the clock, Brendan is a big college football and hockey fan.  While Boston is not an ideal location for big time college football, he takes full advantage of the area by attending Hockey East and ECAC hockey games throughout the season.  Brendan was successful in his effort to mix his interests of construction law and college sports by hitting all three birds with one stone in 2014. At the conclusion of the Forum’s fall meeting in Chicago, he rented a car and drove out to South Bend, IN to attend a Notre Dame hockey game, toured Notre Dame Stadium the next day, then drove back to Chicago for the Northwestern/Nebraska football game that night, jumping on a plane back to Boston the next morning. He is a strong supporter of the idea that all Forum Fall Meetings should be held exclusively in SEC towns with home games that Saturday. 

Articles from D1 Members in the Newest Edition of Under Construction

The most recent edition of Under Construction has been mailed and emailed to Forum members. 

An expanded version is available online -- http://bit.ly/1mpMC7E

If you did not receive either the paper or online copies, please make sure to check your preferences with the ABA.  For detailed instructions on how to receive Under Construction by email, click HERE.

Two Division 1 members wrote articles for this edition of Under Construction:

• Brendan Carter wrote A Project Manager's Decision to Become a Lawyer.  The article is about Brendan's path to law school after working 10 years in construction. Brendan is the Forum's past law school liaison. Read his story by clicking HERE.
• Daniel Kapner answered my questions about the 2015 Amendments to the AAA Construction Rules.  You can read his article by clicking HERE.

If you are interested in writing an article for Under Construction, please contact me (rtdunn@PierceAtwood.com).  I would also like to receive ideas from Division 1 members about ways to improve #ABAUnderConstruction. 

Thanks,

Tom Dunn
Associate Editor, Under Construction

Contractors, be mindful of unit prices at bid time: Massachusetts court upholds rejection of REA for differing site conditions on $0.01/CY unit cost submitted in bid

On March 2, 2015, the Massachusetts Appeals Court affirmed a motion for summary judgment granted to the town of Avon in an action with Celco Construction.  The dispute resulted from a water main extension project and the rejection of a request for equitable adjustment for differing site conditions.



Celco was the successful bidder of a contract for the extension of a water main and the reconstruction of any disturbed roadways.  The bid documents required the submission of a series of unit prices for work activities that maybe encountered during construction.  The project bid documents further denoted an estimated quantity of 1,000 cubic yard of rock to be excavated.  A note on the bid documents gave the caveat that the 1,000 cubic yard quantity was for the purpose of bid comparison only. Celco submitted a unit price of $0.01/CY for the excavated rock in its winning bid.  Celco also listed $0.01 for unit prices of other work activities.



Celco commenced construction and found that the actual quantity of rock required for excavation far exceed the 1,000 cubic yard quantity in the bid documents.  Celco submitted a change request to increase the unit price of excavated rock from $0.01/CY to $220/CY.  A few months later, Celco submitted another change request for $190/CY of excavated rock, calling the increased quantity of excavated material a change from the bid plans and specifications.  The final total amount of rock excavated by Celco was 2,524 cubic yards. The town of Avon rejected these claims for equitable adjustment and Celco filed an action in Superior Court. The Superior Court granted the town of Avon’s motion for summary judgment.



The Appeals Court upheld the motion for summary judgment finding that Celco’s request for equitable adjustment failed to show that the type of rock encountered, and the means and methods required to excavate it, deviated in any manner from what could be anticipated in the bid documents.   The court stated that in a contract which contained multiple line items of unit prices “no equitable adjustment is warranted by reason of a variation in the estimated quantities, standing alone, as compared to a deviation in the condition or character of the physical condition”. Furthermore, the court stated that if Celco had submitted a true unit cost instead of a “wholly artificial and unrealistic value of one penny, it would be in no need of adjustment to the contract price.”



The ruling should give pause to companies who bid unit price contracts by burying or sprinkling costs in some unit prices, and ignoring other as a means of driving down overall unit costs for comparison and award purposes.  That strategy may win the project, but the risk of unforeseen quantities is one you own.

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This is the second case summary Brendan Carter, former Law School Liaison to the ABA Forum on Construction Law, wrote for The Dispute Resolver.  Thanks Brendan! He can be reached by email at bcarter@umassd.edu.