The Construction Contract Review is going on a bit of a winter shut down. End of the year work push, kids' holiday shows, other fun (and some not so fun) social obligations, and quality time in the northwoods of Wisconsin require time for some re-tooling. I'll be back January 4 and am looking forward to a fantastic 2010. Stay safe and enjoy your holidays!
« November 2009 | Main | January 2010 »
December 2009
12/15/2009
12/10/2009
Top Questions About Winter Work Conditions
It was about -3 this morning while I was out shoveling the driveway. Today seemed like a good day for a reminder about the hazards of working outside in the winter from OSHA:
A major winter storm can be lethal. Preparing for cold weather conditions and responding to them effectively can reduce the dangers caused by winter storms. The following frequently asked questions will help workers understand how winter storms may affect their health and safety.
General Information
What are some different types of winter storms?
Blizzards: Winds of 35 mph or more with snow and blowing snow reducing visibility to less than 1 mile for at least 3 hours.
Blowing Snow: Wind-driven snow that reduces visibility. Blowing snow may be falling snow and/or snow on the ground picked up by the wind.
Snow Squalls: Brief, intense snow showers accompanied by strong, gusty winds. Accumulation may be significant.
Snow Showers: Snow falling at varying intensities for brief periods of time. Some accumulation is possible.
Snow Flurries: Light snow falling for short durations with little or no accumulation.
Ice Storms: May include freezing rain or sleet.
What types of winter storms are more common in the different areas of the United States?
Mid Atlantic and New England States: Heavy snow showers, blizzards, and ice storms.
Southeastern and Gulf Coast States: Ice storms, occasional snow.
Midwest and Plains States: Heavy snow showers, blizzards, and ice storms.
Rocky Mountain States: Heavy snow showers, blizzards.
Alaska: Heavy snow showers, blizzards.
What are public warnings for winter weather and what do they mean?
Winter storm watch: Be alert, a storm is likely.
Winter weather advisory: Winter weather conditions are expected to cause significant inconveniences and may be hazardous, especially to motorists.
Frost/freeze warning: Below freezing temperatures are expected and may cause damage to plants, crops, or fruit trees.
Winter storm warning: Take action, the storm is in or entering the area.
Blizzard warning: Snow and strong winds combined will produce blinding snow, near zero visibility, deep drifts, and life-threatening wind chill--seek refuge immediately.
Worker Safety and Health
What workers are at increased risk of injury during winter storms?
While most workers can stay inside during a winter storm, some workers may be required to go into the storm. These may include utility workers, law enforcement personnel, firefighters, emergency medical personnel, federal, state and local government personnel, military personnel, highway personnel, and sanitation workers.
What kinds of injuries are associated with winter storms?
According to National Weather Service about 70 percent of injuries during winter storms result from vehicle accidents, and about 25 percent of injuries result from being caught out in the storm.
Some of the hazards associated with working in winter storms include:
- Driving accidents due to slippery roadways
- Carbon monoxide poisoning
- Slips and falls due to slippery walkways
- Hypothermia and frostbite due to the cold weather exposure
- Being struck by falling objects such as icicles, tree limbs, and utility poles
- Electrocution due to downed power lines or downed objects in contact with power lines
- Falls from heights (e.g. falls from roof or skylights while removing snow)
- Roof collapse under weight of snow (or melting snow if drains are clogged)
- Burns from fires caused by energized line contact or equipment failure
- Exhaustion from working extended shifts
- Dehydration
- Back injuries or heart attack while removing snow
What is wind chill?
Wind chill is an estimation of how cold it feels outside when the effects of temperature and wind speed are combined. Unprotected portions of the body, such as the face or hands, can chill rapidly and should be protected as much as possible from the cold wind. A 10 mile per hour wind combined with a 30°F temperature can have the same chilling effect on the body as a temperature of 21°F in a calm atmosphere. The Weather Service issues this information as the wind chill index. For more information, see OSHA's The Cold Stress Equation. OSHA Publication 3156, (1999). Also available as a 21 KB PDF, 4 pages.
What is frostbite?
Frostbite is a severe reaction to cold exposure that causes freezing in the deep layers of skin and tissue. Frostbite can cause permanent damage. It is recognizable by a loss of feeling and a waxy-white or pale appearance in fingers, toes, nose, or ear lobes. For more information, see OSHA's The Cold Stress Equation. OSHA Publication 3156, (1999). Also available as a 21 KB PDF, 4 pages.
What is hypothermia?
Hypothermia occurs when the body temperature drops to less than 95°F. Symptoms of hypothermia include uncontrollable shivering, slow speech, memory lapses, frequent stumbling, drowsiness, and exhaustion. For more information, see OSHA's The Cold Stress Equation. OSHA Publication 3156, (1999). Also available as a 21 KB PDF, 4 pages.
What can be done to avoid frostbite and hypothermia?
- Recognize the environmental and workplace conditions that lead to potential cold-induced illnesses and injuries.
- Learn the signs and symptoms of cold-induced illnesses/injuries and what to do to help those who are affected.
- Train the workforce about cold-induced illnesses and injuries.
- Select proper clothing for cold, wet, and windy conditions.
- Layer clothing to adjust to changing environmental temperatures. Wear a hat and gloves, in addition to underwear that will keep water away from the skin (polypropylene).
- Take frequent short breaks in warm dry shelters to allow the body to warm up.
- Perform work during the warmest part of the day.
- Avoid exhaustion or fatigue because energy is needed to keep muscles warm.
- Use the buddy system (work in pairs).
- Drink warm, sweet beverages (sugar water, sports-type drinks). Avoid drinks with caffeine (coffee, tea, or hot chocolate) or alcohol.
- Eat warm, high-calorie foods like hot pasta dishes.
Who is at increased risk of frostbite and hypothermia?
Victims of hypothermia are often (1) elderly people with inadequate food, clothing, or heating; (2) babies sleeping in cold bedrooms; (3) people who remain outdoors for long periods - the homeless, hikers, hunters, etc.; and (4) people who drink alcohol or use illicit drugs. Victims may also include people with predisposing health conditions such as cardiovascular disease, diabetes, and hypertension, people that take certain medication (check with your healthcare provider and ask if any medicines you are taking affect you while working in cold environments), and people in poor physical condition or who have a poor diet. For more information, see A Prevention Guide to Promote Your Personal Health and Safety.
How do I treat a person with frostbite or hypothermia?
If frostbite or hypothermia is suspected, begin warming the person slowly and seek immediate medical assistance. Warm the person's trunk first. Use your own body heat to help. Arms and legs should be warmed last because stimulation of the limbs can drive cold blood toward the heart and lead to heart failure. Put person in dry clothing and wrap their entire body in a blanket. Never give a frostbite or hypothermia victim something with caffeine in it (like coffee or tea) or alcohol. Caffeine, a stimulant, can cause the heart to beat faster and hasten the effects the cold has on the body. Alcohol, a depressant, can slow the heart and also hasten the ill effects of cold body temperatures.
How do I walk safely on snow and ice?
- Walking on snow or ice is especially treacherous and wearing proper footwear is essential. A pair of well insulated boots with good rubber treads is a must for walking during or after a winter storm. Keeping a pair of rubber over-shoes with good treads which fit over your street shoes is a good idea during the winter months.
- When walking on an icy or snow-covered walkway, take short steps and walk at a slower pace so you can react quickly to a change in traction.
- When walking on a sidewalk which has not been cleared and you must walk in the street, walk against the traffic and as close to the curb as you can.
- Be on the lookout for vehicles which may have lost traction and are slipping towards you. Be aware that approaching vehicles may not be able to stop at crosswalks or traffic signals.
- At night, wear bright clothing or reflective gear, as dark clothing will make it difficult for motorists to see you.
- During the daytime, wear sunglasses to help you see better and avoid hazards.
What hazards are associated with repairing downed or damaged power lines?
The work activities involved with repairing downed or damaged lines entail many of the activities involved in installing and removing overhead lines and in general maintenance on overhead lines. The crucial difference is that in emergency conditions, such as winter storms, there are unknown hazards and the potential for changing hazards as work progresses. Under these conditions workers must be extra vigilant and cautious.
Potential hazards include:
- Electrocution by contacting downed energized lines, or contacting objects, such as broken tree limbs, in contact with fallen lines.
- Falls from heights.
- Being struck or crushed by falling poles, towers or parts thereof, tree limbs, ice accumulation on lines, towers and poles.
- Being injured in vehicular accidents when responding to an emergency situation.
- Burns from fires caused by energized line contact or equipment failure.
What protective measures should be utilized when working on or around downed or damaged power lines?
Stay well clear of any downed or damaged power lines. Establish a safe distance from the lines and report the incident to the responsible authority. Only properly-trained electrical utility workers should handle damaged power lines.
Electrical utility workers should first assess the hazards present in order to minimize the chances of exacerbating the situation. Ideally the lines involved should be de-energized, but this may not be possible in all situations.
When working on downed or damaged power lines, electrical workers should utilize proper electrical safety work practices and personal protective equipment, as usual. However, as mentioned previously, extra caution should be exercised when working in winter storms, due to the adverse conditions present.
What hazards exist during removal of downed trees during a winter storm, and what safety precautions should be taken?
Clearing downed trees is a critical job during a winter storm. When winter storms occur, downed trees can block public roads and damage power lines. Emergency crews are often sent out to clear downed trees during a winter storm.
Potential hazards include:
- Electrocution by contacting downed energized lines or contacting broken tree limbs in contact with fallen lines.
- Falls from trees.
- Being struck or crushed by falling tree limbs or ice.
- Being injured by emergency equipment such as chain saws and chippers.
Proper PPE including gloves, chaps, foot protection, eye protection, fall protection, hearing protection and head protection should be worn by workers using chainsaws and chippers to clear downed trees.
Only appropriate power equipment that is built to be used outdoors and in wet conditions should be used. All saws, chippers, and other tools should be used properly and according to their intended application. It is important that all equipment is well-maintained and functioning correctly in order for use. In addition, all equipment should have proper guarding, working controls, and other safety features as installed by the manufacturer.
via www.osha.gov
Photo Credit: http://www.flickr.com/photos/cabotaj/3303678421/
12/08/2009
Got Conflicting Information in Bidding Documents? How to Avoid a Differing Site Condition Dispute.
A contractor was hired to remove DDT from contaminated soil at a Navy facility in
In order to prevail on such a site conditions claim, a contractor must establish four elements.
- The contractor must prove that a reasonable contractor reading the contract documents as a whole would interpret them as making a representation as to the site conditions - that the contract contained some identification of the conditions to be encountered at the site;
- The contractor must prove that the actual site conditions were not reasonably foreseeable to the contractor, i.e., that the contractor "reasonably relied" on the representations given all information available to the contractor when bidding;
- The contractor must prove that it in fact relied on the contractual representation; and
- The contractor must prove that the conditions differed materially from those represented and that the contractor suffered damages as a result.
The Court rejected the claim because it did not find the contractor proved that the specific contract documents actually represented site conditions, failing to satisfy the first requirement above. But moreover, the contractor failed to prove the second requirement because the Court determined that the contractor’s reliance on the soil information was not reasonable. Two bidding documents containing information on soil content were in “direct contradiction,” and the contractor could not claim a reasonable reliance on one but not the other.
With 20/20 Hindsight….
This claim was lost at the time the bid was submitted. Testimony emerged at the trial that the contractor itself questioned some of the data. The classic “should have been a warning” was used by the Court in describing what conflicting reports represented to a “reasonable contractor.”
Obviously, the contractor made a determination based on the data that turned out to be wrong. However, given the importance of the soil characteristics to the success of the treatment methodology employed, the contractor could have negotiated better contractual protections in its contract. The importance of the soil condition and the technical assumptions made should have been incorporated into the construction contract. At a minimum, the contractor should have identified the contradiction and explained its reliance on one document over the other in its bid. 20/20 hindsight is pretty easy.
The Construction Contract Clock:
Work Order to Court decision: 10 years
12/03/2009
4 Things You Must Show If Claiming a Constructive Change
A constructive change occurs where a contractor performs work beyond the contract requirements without a formal order, either by an informal order or due to the fault of the Government. Equitable adjustments are corrective measures that make a contractor whole when the government modifies a contract. A contractor is entitled to an equitable adjustment for a constructive change when it is required to perform more or different work not called for under the terms of its contract.
Several categories of constructive change have been identified in existing case law:
- disputes over contract interpretation during performance;
- government interference or failure to cooperate;
- defective specifications;
- misrepresentation and nondisclosure of superior knowledge; and
- acceleration.
The doctrine of constructive change serves to
(1) remediate contractor claims for extra work, and (2) permit contractors to perform disputed work without having to risk abandonment of their contracts to preserve their claims. The theory underlying the constructive change concept is that where the government "should have" issued a change order authorizing the extra work in the first place, the court or board [of contract appeals] may direct the government to do what "should have been done" by directing the government to issue a formal change order. The doctrine in its modern guise is the embodiment of the ancient principle that "what should have been done will be done."
Philip L. Bruner & Patrick J. O'Connor, Jr., Bruner and O'Connor on Construction Law § 4.25 (2002) as quoted in Metric Constr. Co., Inc. v.
In order to recover for a constructive change, a contractor typically must show:
- The work performed was not included in the original scope of work
- All contractual or statutory notice requirements were satisfied
- The owner required the change and was not volunteered by the Contractor
- Contractor tracked its additional costs incurred due to the change
A constructive change situation can sneak up on a contractor or an owner. All four of these elements are usually required to be shown in order for a contractor to recover. Therefore, be sure to contact an attorney early in the project if you are working without a formal change order.
Or even better, send us your contract before you submit your bid and we can provide a comprehensive attorney review, highlighting the risks to you and suggest some negotiating strategies. Click here for more details.
12/01/2009
Green Updates: Construction Contract Review For November 2009
A few updates or interesting items I encountered this month:
Green Mall Expansion
In November, I wrote about a troubled mall expansion in
Clean Diesel
The Associated General Contractors of Congress to let states mandate the use of clean-diesel equipment for federally funded highway construction. The New York Times reported that the two groups want new legislation to authorize states to require diesel emissions reductions at construction sites and to cover the cost of retrofitting or repowering equipment manufactured to meet earlier emissions standards. Under the plan, states would first require contractors who successfully bid for a project to identify the off-road diesel equipment they plan to use during the construction process. States would then consider a U.S. EPA-approved measure for cutting emissions from the equipment and issue orders to the contractors requiring that they pursue the best of the emissions-reducing options. Federal funds would be used to reimburse the contractors, according to the Times. Anti-idling and alternative fuel policies are easy to implement and cost effective. Are you ready now for these guidelines? Why not?
Emission Footprint Tool
The Rocky Mountain Institute has developed an assessment tool for reducing carbon emissions from building construction projects called Green Footstep. According to the website, the Green Footstep tool can be used on residential and commercial new and retrofit building construction projects, from pre-design through occupancy. The tool assesses design's total carbon footprint due to site development, construction, and operation; helps designers and other project stakeholders set carbon emissions goals and design targets; identifies ways to meet the Architecture 2030 Challenge, earn credits in green building rating systems, and achieve other goals; and compliments a financial model (based on life cycle cost analysis) to provide the most comprehensive support for building design decisions. The tool is online and FREE.
