The Construction Contract Review

Top 4 Happiest Employees from Anti-Idling Policy

The EPA recently announced a $650,000 penalty against a Boston company for allowing its diesel engines to idle excessively in violation of the Clean Air Act. A Boston law firm noted that letting drivers start trucks before going inside to drink their coffee will not pass muster and neither will an un-enforced paper policy.  

I recently helped a green construction company draft a relatively simple anti-idling policy. The company was not mandated to have an anti-idling policy, yet enforcing the policy has been easy.  What has been difficult has been determining which employee has been the happiest about the anti-idling policy:

1. Head Mechanic: This is the group where the biggest resistance was expected.  These folks tend to really love their equipment.  This group of employees pointed out that anti-idling policies reduce hours on construction equipment.  Less hours means less wear and tear on the equipment and less wear and tear means less maintenance.   
2.  Granola Heads: This group was always going to be easy to please from the anti-idling policy.  Less idling reduces exhaust.  Vehicle exhaust contains harmful volatile organic compounds (VOC), particulate matter (PM), nitrogen oxides (NOx), carbon monoxide (CO), carbon dioxide (CO2) and other greenhouse gases, which contribute to urban smog, acid rain, poor air quality and has been linked to a variety of health problems
3. Accounting Manager: Less fuel + less maintenance costs = greater profits.  ‘Nuff said.  Green construction policies can equal more green. 
4. Operator: The EPA has concluded that long-term (i.e., chronic) inhalation exposure to diesel exhaust is likely to pose a lung cancer hazard to humans, as well as damage the lung in other ways depending on exposure.  They might never admit it, but the operators prefer being healthier. 

What was the last policy you implemented that made this many divergent groups happy at the same time?  Establishing an anti-idling policy now is a good and easy way to gain credibility when trying to win green construction contracts in the future.

Are there “green” provisions in a proposed contract you are bidding on?  Have you identified the risks of those clauses and are you prepared to handle those new contractual risks?  Click here to send us your contract and we will provide a complimentary attorney review.

Reasonable Dogs and Public Bids

Open bidding for construction projects should be easy.  A company submits the lowest bid, it is automatically awarded the construction agreement for the public project, right?  But municipal and federal contracts are routinely the subject of bid protests by aggrieved bidders.

In most jurisdictions, the lowest responsible bidder is the party awarded the contract.  Responsible bidder is one of those great legal catch all (mush?) words such as reasonable, or fair.  These sorts of words drive non-lawyers crazy because everyone understands their own sense of what is reasonable, but never seem to understand why someone else seems to have a different standard.  But that is what

judges are for, and attorneys to advocate their own clients’ version of reasonable.  It also leads to cases about what a reasonable dog would do.

In Illinois at least, in order for an aggrieved bidder to successfully protest a bid, it needs to show first that it was a responsible bidder.  Responsible bidder usually means it met all of the qualifications of the bid, bid the project exactly as requested and can successfully complete the project, as determined by the public body.  The awarding entity can consider both the bidder's financial responsibility and its ability to perform satisfactorily under the contract.  In some circumstances, a public body can consider public interest and social responsibility when determining what a responsible bidder means.  The next hurdle to overcome is a showing that the aggrieved bidder was unjustifiably prevented by the awarding entity from being awarded the contract.

While a public entity does not have free reign to define its own reasonable dog standard, courts often defer to the discretion of public officials.  Exceptions exist where one can show fraud, corruption, unfair dealing or favoritism, gross injustice, illegality, palpable abuse of discretion, or arbitrary, capricious action.  If you suspect one of these scenarios in your public bid, contact an attorney to discuss how best to prove it.  If you can’t prove it, your protest will be all bark and no bite.

Would you like to have your construction contract reviewed for free? Send us your contract here.

No Falls for Fall

The Pittsburgh Post-Gazette recently reported on a series of fatal falls from construction projects in and around the Pittsburgh area.

A change of season is as good a reason as any to re-assess your safety program’s fall prevention mechanisms.  The article notes that OSHA mandates safety requirements that protect against hazards like falling. Employers are required to protect their workers from falls when they are working six feet or higher above an adjacent surface by one of three methods -- a guardrail system, a personal fall arrest system like a body harness and line or a safety net.  Unfortunately, I’ve worked on fatalities from falling from as few as four feet up a ladder.  If your workers are up, review in advance what happens if they go down.  For more information, check out further guidelines from OSHA. 

You can have the most air-tight construction contract, efficient work processes and most profitable jobsites, but it really doesn’t matter if you don’t take the time to create safe work places for you and your workers.

Let the attorneys at Mayfield | Broderick suggest negotiation strategies and highlight the risks in your construction contract.  Send us a contract today, and the first attorney review is on us.  Click here for more details. 

The Construction Contract Review? Gee, what is that about?

I’m William J. Broderick, a construction partner in the sustainable law firm of Mayfield | Broderick.  My ARDC card says William and that’s how I signed my mortgage, but everyone calls me Bill, so feel free to do so as well.  If you want to contact me use wjb@SustainableLegal.com.

 

The[1] Construction Contract Review will be about……...wait for it…….construction contracts: how they are made, implemented, interpreted, and litigated.  I’ve represented the range of parties to a construction agreement: contractors, subcontractors, property owners, general contractors, architects and engineers.  Over the years, invariably every change order, delay, claim for extras, changed or unknown condition claim hinged on what exactly the contract meant.  I’ve found that a little attention to a contract before a project is started can save a lot of headaches, time, and money fighting about what the contract means after a project is completed.

Through this blog, I will attempt to write about and highlight various developments in construction agreements.  When looking at various court decisions from around the country, I always ask: could the contract been written better?  Well duh, with the benefit of 20/20 hindsight, I expect to appear brilliant.  I will try to provide tips, suggestions and ideas that contractors and owners can implement in their own construction agreements and find useful in avoiding making similar mistakes.  I hope other construction attorneys will join the expected conversations and provide yet another voice telling me why I'm an idiot.

If you would like tips, suggestions, and ideas on a specific construction contract that you are considering signing, send me a copy of the proposed contract and I will provide a complimentary attorney review.  Click here for more details. 

As you may have guessed from my email address, I have a tint of green in me that is more than just Irish heritage so topics may be slanted towards green construction issues.  I believe that sustainable or “green” construction practices will one day be as prevalent and accepted in the industry as OSHA and safety practices are today.  Acceptance of sustainability practices, like safety practices before them, may be slow and begrudging, but will eventually become standard, routine, and the price of working for certain clients.  I’ll try not to be judgmental or preaching but instead provide ways for contractors to differentiate themselves at the bidding stage, or owners to have a project reflect their own ecological values.

Thanks for stopping by.

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[1] Not an alum, but always enjoy on Sunday Night Football when a player is from THE Ohio State University, so I’m accenting the “the” as well.