This article first appeared in Thompson Reuters Construction Accounting & Taxation, July/August 2009 - Vol.19, No. 4, and is reprinted with permission. Is it worth pursuing your construction claim? The decision to proceed may not be clear-cut. This post analyzes some factors potential claimants should consider when determining whether to file a lawsuit or demand for arbitration.  I wrote the Read More

The AIA’s 2013 Digital Practice Documents play a prominent – yet little understood – role in the AIA’s newest Contract Documents. While previously optional, Digital Practice Document use is now expressly required by the unedited standard form language of the Owner-Architect Agreement (B101-2017), Owner-Contractor Agreement (A101-2017), General Conditions of the Contract for Construction (A201-2017), Read More

The AIA’s “new” B101-2017, the latest version of its flagship Owner-Architect Agreement, carries over concepts from its widely-used predecessor, B101-2007. Users of the 2007 form will find the 2017 revision familiar. But the new B101-2017 is different in important and subtle ways, and some of its changes may be controversial. Architect and Owner users of the B101 form may, therefore, wish to reconsider and refresh Read More

Written by Jeremy S. Baker - Dispute resolution clauses in contracts should be drafted to promote the negotiated resolution of disputes in a fair, timely, and cost-effective manner before the parties must resort to binding dispute resolution methods, such as arbitration or litigation, which are expensive and hurt business relationships. This article summarizes considerations for drafting contractual Read More

Private arbitration has several advantages over litigation in a court of law. One is that arbitration takes place mostly in private. Unlike litigation, which is conducted in public and leaves behind publicly-available records, arbitration typically does not leave behind a public record of filings which could embarrass the parties involved in the dispute. Arbitrators Know Design and Construction Arbitration enables Read More

Contractor “callback periods” and “warranties of quality” are different concepts. The distinction between them is a little understood – yet very important – nuance in construction contracts.  Callback periods frequently do have a contractual expiration date, often one year after the completion of work. This limits the time when contractors must voluntarily come back to the site to fix defects. Warranties of quality Read More

Construction Management (CM) is not a single approach to project delivery. Rather, it is a sliding scale with endless possible permutations depending on the project and its participants.  The ends of the spectrum are Construction Manager as Constructor (CMc), which is also sometimes known as “Construction Manager at Risk,” and the Construction Manager as Adviser (CMa) delivery method.  This post discusses the Read More

There are good reasons for real estate developers and project owners to prefer a “Fixed Fee” approach over a “Cost-Plus-Fee-up-to-Guaranteed-Maximum-Price (GMP)” approach to paying for construction work. But Cost-Plus GMP Contract Agreements have many virtues as well. Which is best? There is no one correct answer. Much depends on the project-specific goals. What does the developer or project owner most highly value? Read More

Portions of this post first appeared in “Article 8, Time,” Chapter 8 in The 2017 A201 Deskbook, American Bar Association (ABA) Forum on Construction Law (2017), co-author Jeremy S. Baker Benjamin Franklin famously quipped “lost time is never found again.” While building projects can be accelerated to recover lost time, this aphorism reveals a truth of the construction industry: proper time and schedule management can Read More