CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
• B101 § 1.1. “This Agreement is based on the Initial Information setforth in this Section 1.1.”
• § 1.1.1 “The Owner’s program for the Project: ……..”• § 1.1.2 “The Project’s physical characteristics: ……….”• § 1.1.3 “The Owner’s budget for the Cost of theWork: ………”• §1.1.4 “The Owner’s anticipated design and constructionmilestone dates:• .1 Design phase milestone dates, if any:• .2 Construction commencement date:• .3 Substantial Completion dates:• .4 Othermilestone dates:…….”
What’sthedeal??
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• B101 § 1.2 Parties “recognize … Initial Information maymaterially change and in that event (they) shall appropriatelyadjust:• Architect’s Services;• Schedule for Architect’s services;• Architect’s compensation
• “Owner shall adjust:• Owner’s budget for Cost of the Work; and• Owner’s anticipated design and construction milestones…• As necessary, to accommodate material changes in InitialInformation
Canthedealchange?
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
AIA B101‐2017 § 3.1.3:“As soon as practicable after the date of this Agreement, the
Architect shall submit ….. a schedule for the performance of theArchitect’s services.”
• Shall include anticipated dates for:• Commencement of construction;• Substantial Completion;• Allowances for:
• Owner’s review• Performance of Owner’s consultants, and• Approval for reviews/approvals by code officials
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The“Plan”……asplanned
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MarchMadness….2020Style
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
• “Once approved by the Owner, time limits established by theschedule shall not, except for reasonable cause, be exceeded bythe Architect or Owner.
• With the Owner’s approval, the Architect shall adjust theschedule, if necessary, as the Project proceeds until the time ofcommencement of construction.”
Theproblem…..
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What’sthebigfussoverdelay?
ERRORSANDOMISSIONS DELAYS
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
• Critically assess and anticipate realistic impacts created by:
• Your staffing and inefficiency from less effective collaboration ofyour group;
• Same factors for each consultant
• Inefficiency from team’s lessened collaborative opportunities
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Ownercauseddelays?
• Owner’s “new normal” personnel/staffing issues and resultinginefficiencies;
• Inter‐related delays and inefficiencies from restrictions ontravel and collaborative gatherings
• Delayed owner approvals or other required “turnarounds”
• Delays by Owner’s Consultants
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Codereviewdelays?
• Governmental plan review delays:• Closure/slow‐downs of government offices and resultingstaffing issues at every level
• EXAMPLE: Georgia Governor’s Executive Order on 3/20/20:
“… , I have determined that all counties and municipalities inthis state that regulate inspections of buildings or similarstructures to ensure compliance with the state minimum standardcodes in accordance with Code Section 8‐2‐26 may not be able toprovide regulatory action or inspection within the time framesrequired by Code Section 8‐2‐26(g)(4). Therefore, ……...
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
B101 §6.2 “Evaluations of the Owner’s budget for the Cost ofthe Work, and the preliminary estimated of the Cost of the Workand updated estimates of the Cost of the Work, prepared by theArchitect represent the Architect’s judgment as a designprofessional. It is recognized, however, that neither the Architectnor the Owner has control over the cost of labor, materials, orequipment, the Contractor’s methods of determining bid prices; orcompetitive bidding, market, or negotiating conditions. …….”
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Backtothedrawingboard?
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HowmightCOVID‐19impactyour timeandmoney?
Cumulative(exponential?)effectofall!
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
• Site visits• Alternatives• Means, methods and site safety• Providing services in place of code inspectors
• Change Orders, Claims and other Decisions• Adjustments to Cost of Work or to Budget
• Substitutions/Value Engineering• Extensions of time
• Certifications• Pay Applications• Substantial/Final Completion• Termination for Cause
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
A201 § 4.2.2 The Architect will visit the site at intervals appropriate tothe stage of construction, or as otherwise agreed with the Owner, tobecome generally familiar with the progress and quality of the portion ofthe Work completed…. . .
A201 § 4.2.3 On the basis of the site visits, the Architect will keep theOwner reasonably informed about ………(1) known deviations from theContract Documents, (2) known deviations from the most recentconstruction schedule submitted by the Contractor, and (3) defects anddeficiencies observed in the Work. . .
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SiteVisit:TheBIG question:
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
1. Determine and understand Design Team’s contract requirements
2. Assess project factors
3. Determine internal desires and plan for achieving required results
4. Discuss and coordinate desires and plans with necessary Design Team members
5. Communicate with Owner to achieve initial agreement re alternative actions
6. Communicate with Contractor to achievemutually agreeable plan of action
7. Document agreement(s) with all re alternative plan(s) of action
8. Document agreement with Owner that alternative plan is contractually acceptable
9. Communicate and document with code officials and lenders, if and as necessary
10. Repeat any/all above …. if and as established alternative plans are revised
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WhatifDOgo…orwanttogo..andaccessisimpeded?
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“Standard”SiteManagementrule(s)reSafety
A201 § 10.2 The Contractor shall be reasonable for initiating, maintaining, andsupervising all safety precautions and programs in connection with the performance ofthe Contract.
A201 § 10.4 In an emergency affecting safety of persons or property, the Contractorshall act, at the Contractor’s discretion, to prevent threatened damage, injury, or loss.
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
1. Determine and understand Project’s rules for governance of site
2. Do NOT interfere with Contractor’s control or running of the site
3. BUT … Do NOT let Contractor impede your required/necessary site visits or related CAactivities.
4. If that is problem:1. Communicate with Contractor in search of resolution;2. Communicate with Owner if and re continuing issues3. Communicate internally if and re then continuing issues4. Document any resolution that varies from allowance to proceed as should
5. Document any delays/problems resulting from issues
6. Elevate remaining, residual or continuing problems
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WhatifDOgoandobserveunsafepractices?
Social Distancing? Social Distancing? Social DistancingNo hard hats? No hard hats?
Holy Cow!?!?!?!
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“Standard”rule(s)reSiteSafety
A201 § 4.2.2 The Architect will not have control over, charge of, or responsibility for theconstruction means, methods, techniques, sequences or procedures, or for the safetyprecautions in connection with the Work, since these are solely the Contractor’s rightsand responsibilities under the Contract Documents.
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
1. Determine and understand Project’s rules and State law concerning site safety
2. Generally, do NOT interfere with Contractor’s control, or running, of site safety ormeans/methods
3. Generally do NOT note site safety concerns except in situations of imminent andpotentially catastrophic danger
4. In latter event, apply Holy Cow Rule!
5. Where Holy Cow Rule applies:1. Communicate forcefully, if and as appropriate, with person(s) in danger2. Communicate ASAP with Contractor’s superintendent3. Advise of situation observed and of Contractor’s need to address immediately4. Do NOT tell Contractorwhat to do or how to do it5. Document with Contractor and Owner and any other appropriate/necessary person
6. Elevate remaining, residual or continuing problems
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
2. If that does not work, continue to decline … with decreasing tactfulness.
3. Explain:1. Differences in roles and responsibilities2. Resulting increase in scope3. Expansion of uncompensated and unprotected professional liability exposure4. Any/all other appropriate reasons
4. If that still does not work, request Pre‐Claim assistance and discuss with carrier and/orcounsel.
5. If that doesn’t work, transfer personal assets into name of a dear/trusted loved one.
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Architect will:• Interpret and decide issues, upon written request• Respond timely in writing• Endeavor to secure faithful performance• “Will not show partiality to either, and will not be liablefor results or interpretations of decisions rendered ingood faith.”
Architect’sroleinclaimsanalysis/resolution
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
A201 § 8.3.1 “If the Contractor is delayed at any time in the commencement ofprogress of the Work by:
(3) ……. Unusual delay in delivery, … or other causes beyond theContractor’s control;
(5) or by other causes that the Contractor asserts, and the Architectdetermines, justify delay, then the Contract Time shall be extended for suchreasonable time as the Architect may determine.”
§ 8.3.2 “Claims relating to time shall be made in accordance with applicableprovisions of Article 5.”
§ 8.3.3 “ This Section 8.3 does not preclude recovery of damages for delay byeither party under other provisions of the Contract Documents.”
1. Prepare for potential onslaught of issues and disputes re time and money.2. Communicate internally re handling3. Insist that others do their parts in providing information and back‐up.4. Communicate with all and document challenges, costs and delays.5. Require Change Orders for all substitutions, so that final Contract
Documents will reflect what was substituted and built (A201 § 9.4.2)6. Address impact on time in all Change Orders7. Resist undue/inappropriate pressures8. Seek Add Services, as appropriate.9. Increase calcium intake to strengthen backbone for remainder of trip.
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
A201 § 9.4.2 The issuance of a Certificate for Payment will constitute arepresentation by the Architect to the Owner, based on the Architect’sevaluation of the Work and the data in the Application for Payment, that, to thebest of the Architect’s knowledge, information, and belief, the Work hasprogressed to the point indicated, the quality of the Work is in accordance withthe Contract Documents, and that the Contractor is entitled to payment in theamount certified. . .
CertificatesforPayment
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CertificateforPayment
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A201 § 9.8.3 “Upon receipt of the Contractor’s list, the Architectwill make an inspection to determine whether the Work … issubstantially complete.
A201 § 9.8.4 “When the Work ….. is substantially complete, theArchitect will prepare a Certificate of Substantial Completion …..
SubstantialCompletion
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CertificateofSubstantialCompletion
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A201 § 9.10.1 Upon receipt of the Contractor’s notice that the Work isready for final inspection and acceptance and upon receipt of a finalApplication for Payment, the Architect will promptly make suchinspection. When the Architect finds the Work acceptable under theContract Documents and the Contract fully performed, the Architect willpromptly issue a final Certificate for Payment stating that . . . on thebasis of the Architect’s on‐site visits and inspections, the Work hasbeen completed in accordance with the Contract Documents and that theentire balance found to be due the Contractor and noted in the finalCertificate is due and payable.
FinalCompletionandFinalPayment
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A201 § 14.2.2 “When any of thereasons described in Section 14.2.1exist, and upon certification by theArchitect that sufficient cause existsto justify such action, the Owner may……. terminate the employment of theContractor …..
CertificationofTermination(ofContractor)forCause
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BUT,whataboutYOU???
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
AIA B101 § 4.2.1 “Upon recognizing the need to perform [AdditionalServices necessitated by a material change in the Project] theArchitect shall notify the Owner with reasonable promptness andexplain the facts and circumstances giving rise to the need. The Architectshall not proceed to provide the following Additional Services until theArchitect receives the Owner’s written authorization.”
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AdditionalServices
Examples in B101 (§ 4.2) of circumstances justifying “Additional Services:
§ 4.2.1.1 “Services necessitated by a change in the Initial Information,previous instructions or approvals given by the Owner, or a material change inthe Project including size, quality, complexity, the Owner’s schedule or budget forCost of the Work, or procurement of delivery method;
§ 4.2.1.2 “Services necessitated by the enactment or revision ofcodes, laws, or regulations, including changing or editing previously preparedInstruments of Service;”
§ 4.2.1.4 ‘Services necessitated by decisions of the Owner notrendered in a timely manner or any other failure of performance on the partof the Owner or the Owner’s consultants of contractors;
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AdditionalServices
Examples in B101 (§ 4.2) of circumstances justifying “AdditionalServices:
§ 4.2.2.1 Reviewing a Contractors’ submittal out of sequencefrom the submittal schedule approved by the Architect;
§ 4.2.2.3 Preparing Change Orders …. that requireevaluation of Contractor’s proposals and supporting data, or thepreparation or revision of Instruments of Service;
§ 4.2.2.4 Evaluating an extensive number of Claims as theInitial Decision Maker; or
§ 4.2.2.5 Evaluating substitutions proposed by the Owner orContractor and making subsequent revisions to the Instruments ofService resulting therefrom.”
CHANGE‐A‐VIRUSAnticipating, and Proactively Avoiding, the Adverse Legal Effects of this New PandemicA Copeland Stair Kingma & Lovell Webinar hosted by Victor US and CNA April 28, 2020
• Review contracts for those and other requirements
• Use professional/business judgement as to when/how toprovide and if and when to refrain…..
• BUT understand potential legal consequence in failing to followletter of contract
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CONCLUSION
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BUT…..Whatdoesraftinghavetodowithanyofthis?
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