Smith Currie and Hancock s Common Sense Construction Law 6th Edition by John M Mastin, Eric L Nelson, Ronald G Robey, Smith, Currie and Hancock ISBN 9781119540175 1119540178

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ISBN 10: 1119540178
ISBN 13: 9781119540175
Author: John M Mastin, Eric L Nelson, Ronald G Robey, Smith, Currie and Hancock

Updated and expanded to reflect the most recent changes in construction law, this practical guide teaches readersthe difficult theories, principles, and established rules that regulate the construction business. It addresses the practical steps required to avoid and mitigate risks–whether the project is performed domestically or internationally, or whether it uses a traditional design-bid-build delivery system or one of the many alternative project delivery systems.

Smith, Currie & Hancock’s Common Sense Construction Law: A Practical Guide for the Construction Professional provides a comprehensive introduction to the important legal topics and questions affecting the construction industry today. This latest edition features: all-new coverage of Electronically Stored Information (ESI) and Integrated Project Delivery (IPD); extended information on the civil False Claims Act; and fully updated references to current AIA, ConsensusDocs, DBIA, and EJDC contract documents. Chapters coverthe legal context of construction; interpreting a contract; public-private partnerships (P3); design-build and EPC; and international construction contracts. Other topics include: management techniques to limit risks and avoid disputes; proving costs and damages, including for changes and claims for delay and disruption; construction insurance, including general liability, builders risk, professional liability, OCIP, CCIP, and OPPI; bankruptcy; federal government construction contracting; and more. 

Fully updated with comprehensive coverage of the significant legal topics and questions that affect the construction industry

Discusses new project delivery methods including Public-Private Partnerships (P3) and Integrated Project Delivery (IPD)

Presents new coverage of digital tools and processes including Electronically Stored Information (ESI)

Provides extended and updated coverage of the civil False Claims Act as it relates to government construction contracting

Filled with checklists, sample forms, and summary “Points to Remember” for each chapter, Smith, Currie & Hancock’s Common Sense Construction Law: A Practical Guide for the Construction Professional, Sixth Edition is the perfect resource for construction firm managers, contractors, subcontractors, architects and engineers. It will also greatly benefit students in construction management, civil engineering, and architecture

Smith Currie and Hancock s Common Sense Construction Law 6th Edition Table of contents:

1 THE LEGAL CONTEXT OF CONSTRUCTION

I. INTRODUCTION

II. CONTRACT LAW

III. EVOLUTION OF CONSTRUCTION LAW

IV. TORTS

V. STATUTORY AND REGULATORY LAWS AFFECTING THE BUSINESS OF CONSTRUCTION

NOTES

2 INTERPRETING THE CONTRACT

I. THE IMPORTANCE OF CONTRACT INTERPRETATION

II. WHAT IS A CONTRACT?

III. THE GOAL OF CONTRACT INTERPRETATION

IV. DEFINING CONTRACT TERMS

V. INTERPRETING THE CONTRACT’S LANGUAGE

VI. THE FACTS AND CIRCUMSTANCES SURROUNDING CONTRACT FORMATION

VII. RESOLVING AMBIGUITIES

VIII. IMPLIED CONTRACTUAL OBLIGATIONS

IX. CONTRACTUAL OBLIGATIONS ARISING BY OPERATION OF LAW

NOTES

3 ALTERNATIVE CONTRACTING METHODS

I. TRADITIONAL APPROACH TO CONSTRUCTION: ADVANTAGES AND DISADVANTAGES

II. INTEGRATED PROJECT DELIVERY

III. MULTIPRIME CONTRACTING AND FAST-TRACKING

IV. CONSTRUCTION MANAGEMENT

V. DESIGN-BUILD CONTRACTING

VI. DESIGN-BUILD ASPECTS OF TRADITIONAL CONSTRUCTION

VII. CONTRACTOR LIABILITY ISSUES

VIII. ENGINEER-PROCURE-CONSTRUCT

IX. BUILDING INFORMATION MODELING

NOTES

4 PUBLIC-PRIVATE PARTNERSHIPS

I. THE P3 ALTERNATIVE

II. P3 PROJECT PARTICIPANTS

III. P3 FINANCING STRATEGIES

IV. P3 RISK ALLOCATION

V. CONCLUSION

NOTES

5 INTERNATIONAL CONSTRUCTION CONTRACTS

I. UNIQUE ISSUES

II. PROJECT DELIVERY METHODS AND CONTRACT FORMS

III. DISPUTE RESOLUTION

NOTES

6 WORKING IN A DIFFERENT STATE

I. QUALIFYING TO DO BUSINESS

II. STATE REGISTRATION REQUIREMENTS: BONDS TO SECURE PAYMENT OF TAXES

III. STATE LICENSING AND QUALIFICATIONS

IV. PUBLIC-SECTOR CONSTRUCTION

V. STATE STATUTES AND POLICIES AFFECTING CONTRACTUAL RELATIONSHIPS AND TERMS

VI. PRESERVATION OF LIEN/BOND RIGHTS

VII. PROJECT RISK ASSESSMENT—“FOREIGN STATES”

VIII. INFORMATION SOURCES

APPENDIX 6.1 CHECKLIST: PROJECTS IN “FOREIGN JURISDICTIONS”

NOTES

7 COMPETING FOR THE CONTRACT

I. INTRODUCTION: THE RATIONALE FOR COMPETITION

II. KEY CONCEPTS IN TRADITIONAL PUBLIC COMPETITIVE BIDS—RESPONSIVENESS AND RESPONSIBILITY

III. THE “LOWEST AND BEST” BIDDER

IV. NEGOTIATED “BEST VALUE” SELECTION PROCESS

V. ELECTRONIC BIDS

VI. REVERSE AUCTIONS

VII. GENERAL CONSIDERATIONS WHEN COMPETING ON PRIVATE CONTRACTS

VIII. EFFECT OF PAST PERFORMANCE EVALUATIONS ON AWARD PROCESS

IX. CONTRACTOR BID MISTAKES

X. BID PROTESTS ON STATE OR LOCAL GOVERNMENT CONTRACTS

XI. BID BONDS

XII. “BID SHOPPING”: WHAT IS THE PRIME CONTRACTOR’S OBLIGATION TO THE SUBCONTRACTOR SUBMITTING THE LOWEST PRICE?

XIII. HOLDING SUBCONTRACTORS AND VENDORS TO THEIR BIDS

XIV. STATUTE OF FRAUDS ISSUES

XV. DAMAGES

NOTES

8 THE UNIFORM COMMERCIAL CODE AND THE CONSTRUCTION INDUSTRY

I. APPLICABILITY TO CONSTRUCTION PROJECTS—PURCHASING EQUIPMENT AND MATERIALS

II. DETERMINING WHEN ARTICLE 2 APPLIES

III. MODIFYING U.C.C. OBLIGATIONS

IV. CONTRACT FORMATION UNDER THE U.C.C.

V. RISK OF LOSS

VI. INSPECTION, ACCEPTANCE, REJECTION, AND REVOCATION OF ACCEPTANCE

VII. WARRANTIES UNDER THE U.C.C.

VIII. STATUTE OF LIMITATIONS AND COMMENCEMENT OF THE WARRANTY PERIOD

IX. PERFORMANCE ISSUES

NOTES

9 THE DESIGN PROFESSIONAL’S AUTHORITY AND RESPONSIBILITY

I. OVERVIEW

II. STANDARD OF CARE, PROFESSIONAL RESPONSIBILITY, AND LIABILITY

III. THE DESIGN PROFESSIONAL’S AUTHORITY

IV. THE DESIGN PROFESSIONAL’S ADMINISTRATIVE FUNCTIONS

V. THE DESIGN PROFESSIONAL’S OTHER DUTIES

VI. THE DESIGN PROFESSIONAL’S LIABILITY TO THE CONTRACTOR AND THIRD PARTIES

VII. STATUTES OF REPOSE

VIII. EFFECTS OF CONTRACTUAL LIMITATIONS ON DESIGN PROFESSIONAL LIABILITY

IX. ASSUMPTION OF DESIGN LIABILITY BY THE CONTRACTOR

X. SHARED RESPONSIBILITY AND RISK

XI. THE DESIGN PROFESSIONAL’S COPYRIGHT FOR DESIGN DOCUMENTS

NOTES

10 SUBCONTRACT ADMINISTRATION AND DISPUTE AVOIDANCE

I. DISPUTE AVOIDANCE BEGINS AT THE BIDDING STAGE

II. THE SUBCONTRACT AGREEMENT

III. SHOULD SUBCONTRACTORS BE BONDED?

IV. DISPUTE AVOIDANCE BY DILIGENT PROJECT ADMINISTRATION

NOTES

11 CONTRACT CHANGES

I. WHAT IS A CHANGES CLAUSE?

II. RECOVERY UNDER THE CHANGES CLAUSE

III. CONSTRUCTIVE CHANGES

IV. CARDINAL CHANGES

V. THE IMPACT OF NUMEROUS CHANGES ON UNCHANGED WORK

VI. IMPOSSIBILITY/IMPRACTICABILITY

NOTES

12 DIFFERING SITE CONDITIONS

I. “DIFFERING SITE CONDITION” DEFINED

II. RESPONSIBILITY FOR DIFFERING SITE CONDITIONS

III. STANDARD INDUSTRY DIFFERING SITE CONDITIONS CLAUSES

IV. COMPARISON OF DIFFERING SITE CONDITION PROVISIONS

V. OPERATION OF THE DIFFERING SITE CONDITIONS CLAUSE

VI. STUMBLING BLOCKS TO RECOVERY

VII. RELIEF IN THE ABSENCE OF A CONTRACT PROVISION

APPENDICES—SITE INVESTIGATION CHECKLISTS

APPENDIX 12.1: PROJECT CHECKLIST: QUALIFYING THE SITE

EXHIBIT A: SITE INVESTIGATION RECORD

APPENDIX 12.2: PRE-BID ENVIRONMENTAL CONSIDERATIONS

NOTES

13 SCHEDULES, DELAYS, AND ACCELERATION

I. ALLOCATING THE RISK OF PERFORMANCE TIME IN THE CONTRACT

II. USE OF SCHEDULES IN PROJECT MANAGEMENT

III. ANALYSIS OF PROJECT DELAY

IV. TYPICAL CAUSES OF COMPENSABLE DELAY

V. CONCURRENT DELAY

VI. EXCUSABLE BUT NONCOMPENSABLE DELAYS

VII. ACCELERATION

VIII. CONTRACTUAL LIMITATIONS TO RECOVERY FOR DELAYS

IX. OWNER CLAIMS FOR DELAY

X. DELAY CLAIMS AND THE USE OF CPM SCHEDULES

XI. DOCUMENTATION TO SUPPORT DELAY CLAIMS

NOTES

14 INSPECTION, ACCEPTANCE, WARRANTIES, AND COMMISSIONING

I. INSPECTION

II. ACCEPTANCE

III. CONTRACTUAL WARRANTIES

IV. PROJECT COMMISSIONING AND POST-ACCEPTANCE FACILITY OPERATIONS

NOTES

15 MANAGEMENT TECHNIQUES TO LIMIT RISKS AND AVOID DISPUTES

I. CONSTRUCTION: A RISK-PRONE BUSINESS

II. QUALIFYING THE PROJECT AND THE PARTICIPANTS

III. DEFINING RIGHTS, RESPONSIBILITIES, AND RISKS: PARTIES AND THEIR CONTRACTS

IV. CONTRACT FRAMEWORK

V. AVOIDING AND PREPARING FOR DISPUTES THROUGH PROPER MANAGEMENT AND DOCUMENTATION

VI. PRUDENT AND RESPONSIBLE ESTIMATING

VII. ESTABLISH STANDARD OPERATING PROCEDURES

VIII. ESTABLISH LINES OF COMMUNICATION

IX. PROJECT DOCUMENTATION

X. ELECTRONIC COMMUNICATIONS ON CONSTRUCTION PROJECTS

XI. COST ACCOUNTING RECORDS

XII. MONITORING THE WORK THROUGH SCHEDULING

XIII. PRESERVING ELECTRONICALLY STORED INFORMATION

XIV. CONCLUSION

APPENDIX 15.1 CONSENSUSDOCS 221—CONTRACTOR’S STATEMENT OF QUALIFICATIONS FOR A SPECIFIC PROJECT

APPENDIX 15.2 LOGS AND FORMS

APPENDIX 15.2A FORMAT FOR NOTICE CHECKLIST

APPENDIX 15.2B SAMPLE PARTIAL NOTICE CHECKLISTS

APPENDIX 15.2C FORMS

APPENDIX 15.2D REQUEST FOR INFORMATION

APPENDIX 15.2E TELEPHONE CONVERSATION MEMORANDUM

APPENDIX 15.2F SAMPLE DAILY REPORT

APPENDIX 15.2G NOTICE OF BACKCHARGE

APPENDIX 15.2H FIELD ORDER STATUS CHART

APPENDIX 15.2I LOG: INCOMING CORRESPONDENCE

APPENDIX 15.2J LOG: OUTGOING CORRESPONDENCE

NOTES

16 PAYMENT BONDS

I. PAYMENT BONDS REQUIRED BY STATUTE

II. PAYMENT BONDS ON PRIVATE PROJECTS

III. WHO IS PROTECTED BY PAYMENT BONDS

IV. WORK QUALIFYING FOR PAYMENT BOND COVERAGE

V. RECOVERY UNDER PAYMENT BONDS FOR EXTRA WORK, DELAY DAMAGES, OR LOST PROFITS AND OTHER COSTS

VI. DISTINGUISHING BETWEEN PAYMENT BOND CLAIMS AND PERFORMANCE BOND CLAIMS

VII. PROCEDURAL REQUIREMENTS FOR PAYMENT BONDS

VIII. EFFECT OF PAYMENT BONDS ON LIEN RIGHTS

IX. THE SURETY’S DEFENSES TO PAYMENT BOND LIABILITY

NOTES

17 PERFORMANCE BONDS AND TERMINATIONS

I. SURETY PERFORMANCE BONDS

II. TERMINATION

NOTES

18 PROVING COSTS AND DAMAGES

I. BASIC DAMAGE PRINCIPLES

II. METHODS OF PRICING CLAIMS

III. CONTRACTOR DAMAGES

IV. OWNER DAMAGES

NOTES

19 AN OVERVIEW OF ENVIRONMENTAL AND SAFETY CONCERNS ON THE CONSTRUCTION SITE

I. SOURCES OF ENVIRONMENTAL REGULATION AND LIABILITY

II. MINIMIZING ENVIRONMENTAL RISKS PRIOR TO CONTRACTING

III. MANAGEMENT TECHNIQUES FOR ENVIRONMENTAL RISKS DURING CONTRACT PERFORMANCE

IV. MOLD: DEVELOPING A PROGRAM TO LIMIT LIABILITY

V. ENVIRONMENTALLY FRIENDLY CONSTRUCTION: GREEN BUILDINGS

VI. CONSTRUCTION SAFETY

NOTES

20 CONSTRUCTION INSURANCE

I. IMPORTANCE OF INSURANCE PLANNING

II. INTRODUCTION TO THE LANGUAGE OF INSURANCE POLICIES

III. TYPES OF INSURANCE

IV. CONTRACT REQUIREMENTS FOR INSURANCE

V. PROMPT ACTION TO PROTECT POTENTIAL COVERAGE

VI. INSURER’S RESPONSE TO CLAIMS

VII. ROUTINE COVERAGE ISSUES

VIII. CONCURRENT CAUSES

IX. CONSTRUCTION INSURANCE AND MOLD CLAIMS

NOTES

21 LABOR AND EMPLOYMENT ISSUES AFFECTING THE CONSTRUCTION INDUSTRY

I. IMMIGRATION ISSUES

II. EMPLOYEE SAFETY AND HEALTH

III. WAGE AND HOUR REQUIREMENTS

IV. EMPLOYEE BENEFITS: ERISA

V. EMPLOYMENT DISCRIMINATION

VI. FAMILY AND MEDICAL LEAVE ACT

VII. UNION LABOR

VIII. EMPLOYEE-BACKGROUND INVESTIGATIONS

IX. WORKERS’ COMPENSATION—EXCLUSIVE REMEDY ASSERTIONS

NOTES

22 BANKRUPTCY IN THE CONSTRUCTION SETTING

I. INTRODUCTION

II. THE PLAYERS

III. KEY TERMS

IV. BANKRUPTCY CODE

V. STATUS OF THE DEBTOR’S CONTRACTS

VI. STATUS OF MATERIALS AND EQUIPMENT

VII. STATUS OF CONTRACT FUNDS

VIII. OTHER SOURCES OF FUNDS

NOTES

23 RESOLVING CONSTRUCTION DISPUTES

I. EARLY CLAIM RECOGNITION AND PREPARATION

II. EARLY INVOLVEMENT OF EXPERTS AND ATTORNEYS

III. DEMONSTRATIVE EVIDENCE

IV. CONTEMPORANEOUS RECORDS

V. COMPONENTS OF A WELL-PREPARED CLAIM DOCUMENT

VI. CALCULATING AND PROVING DAMAGES

VII. PURSUING NEGOTIATION AND SETTLEMENT

VIII. ARBITRATION

IX. LITIGATION

NOTES

24 FEDERAL GOVERNMENT CONSTRUCTION CONTRACTING—AN OVERVIEW

I. INTRODUCTION: THE KEY DIFFERENCES

II. CONTRACTOR SELECTION

III. SOCIAL-ECONOMIC POLICIES

IV. RESOLUTION OF CONTRACT DISPUTES

V. STANDARDS OF CONDUCT FOR CONTRACTORS

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Tags: John M Mastin, Eric L Nelson, Ronald G Robey, Smith, Currie and Hancock, Construction Law