Cambridge Massachusetts Building Expert Directory

Effective Allocation of Damages for Federal Contract Claims

October 25, 2021 — Dirk D. Haire, Joseph L. Cohen & Jane Han - ConsensusDocs
Federal construction contracts law generally recognizes four basic methods for pricing damages: (1) Actual Cost Method (ACM); (2) Total Cost Method (TCM); (3) Modified Total Cost Method (MTCM); and (4) Jury Verdict Recovery Method (JVRM). In practice, it is difficult to obtain significant recoveries on TCM and JVRM claims, and only marginally easier on MTCM claims. That is because the courts and boards that hear federal government contracts cases have developed a clear preference for the ACM. Despite this preference, many contractors do not have systems in place to maximize their opportunity to recover damages under the ACM. This article introduces various strategies for tracking and allocating damages during project performance in a manner that will support an ACM analysis if a federal construction claim is litigated. Background: Four Basic Methods for Pricing Damages The four methods for pricing damages are described, below: 1. Actual Cost Method The actual cost method claims damages based on records of “actual costs” that were documented during the performance of the contract. All additional costs must be separately recorded from the costs incurred in the normal course of contract performance. Because contractors provide the court or board with documented underlying expenses under the actual cost method, courts and boards prefer this method. However, the actual cost method may not always be feasible where a contractor is confronted with drastic changes early and often in a project. Reprinted courtesy of Dirk D. Haire, Fox Rothschild LLP, Joseph L. Cohen, Fox Rothschild LLP and Jane Han, Fox Rothschild LLP Mr. Haire may be contacted at dhaire@foxrothschild.com Mr. Cohen may be contacted at jlcohen@foxrothschild.com Read the court decision
Read the full story...
Reprinted courtesy of

Multiple Construction Errors Contributed to Mexico Subway Collapse

June 21, 2021 — Jim Parsons - Engineering News-Record
The May 3 collapse of an elevated section of the Line 12 subway in Mexico City that killed 26 passengers appears to have resulted from multiple construction faults, according to a risk management firm's preliminary report. Reprinted courtesy of Jim Parsons, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
Read the full story...
Reprinted courtesy of

Architects Should Not Make Initial Decisions on Construction Disputes

July 05, 2023 — Bill Wilson - Construction Law Zone
A common provision often deleted from the standard form AIA documents is the provision in the AIA A201 General Conditions requiring an Initial Decision Maker (IDM) for claims between the contractor and owner. In the A201, the contracting parties have the option of naming their own IDM for the project. If an IDM is not selected (which is typically the case) the architect serves this role by default. While it is in all parties’ best interests to resolve disputes quickly and efficiently, using the architect as the IDM is not the best way to achieve such a resolution. Several reasons work against using the architect as the IDM. Contractors typically don’t trust architects to be impartial in resolving disputes because the architect is paid by the owner. Most architects don’t have the temperament or any training to facilitate dispute resolution. An architect’s “initial decision” could even drive the parties further apart and lead to further issues later in the project. The architect may also be perceived to be part of the problem that led to the dispute in the first place. Also, many architects simply prefer to avoid serving the thankless role of an IDM altogether. Lastly, inserting the architect into the dispute resolution process as a required IDM adds an additional unnecessary step to dispute resolution, which can delay the overall procedure. Read the court decision
Read the full story...
Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

Third Circuit Limits Pennsylvania’s Kvaerner Decision; Unexpected and Unintended Injury May Constitute an “Occurrence” Under Pennsylvania Law

December 22, 2019 — Michael S. Levine & Michelle M. Spatz - Hunton Insurance Recovery Blog
The Third Circuit ruled on Friday that differing “occurrence” definitions can have materially different meanings in the context of whether product defect claims constitute an “occurrence” triggering coverage under general liability insurance policies. The Court held in Sapa Extrusions, Inc. v. Liberty Mutual Insurance Company, that product claims against Sapa may be covered under policies that define an “occurrence” as an accident resulting in bodily injury or property damage “neither expected nor intended from the standpoint of the insured.” However, the Court affirmed that coverage was not triggered under policies lacking the “expected” or “intended” limitation, reasoning that, under those policies, there was no question that the intentional manufacturing of Sapa’s product was too foreseeable to amount to an “accident.” The coverage dispute arose from an underlying action in which Marvin, a window manufacturer, alleged that, between 2000 and 2010, Sapa sold it roughly 28 million defective aluminum window extrusions. Marvin alleged that the extrusions, which are metal frames that hold glass window panes in place, began to oxidize and break down shortly after they were installed, causing Marvin to incur substantial costs to fix and replace them. Marvin sued Sapa in 2010 in Minnesota federal court, and the parties settled in 2013. Sapa sought coverage for the settlement from its eight general liability insurers for the period implicated by Marvin’s allegations. The insurers denied coverage and Sapa brought suit in the Middle District of Pennsylvania. Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth and Michelle M. Spatz, Hunton Andrews Kurth Mr. Levine may be contacted at mlevine@HuntonAK.com Ms. Spatz may be contacted at mspatz@HuntonAK.com Read the court decision
Read the full story...
Reprinted courtesy of

Will On-Site Robotics Become Feasible in Construction?

April 13, 2017 — Aarni Heiskanen – AEC Business
Over the last few years we’ve seen concepts and pilot projects for construction site robotics. Peter Novikov, Enrico Dini, Wolf D. Prix, and others have shown what on-site robotics can already accomplish. There are still hurdles to overcome, but the convergence of several technologies is making the automated construction site look attainable. Construction robotics is not a fad. In his keynote at AEC Hackathon Munich in April 2017, Professor Thomas Bock showed examples of construction robotics beginning in the early 1970s. The first construction robots were designed in Japan for manufacturing prefabricated modular homes. Already in the late 1970s, plans were made for extensive use of on-site construction robots. Read the court decision
Read the full story...
Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aarni@aepartners.fi

Implementation of CA Building Energy Efficiency Standards Delayed

February 25, 2014 — Beverley BevenFlorez-CDJ STAFF
In his California Construction Law blog, Garret Murai published the recent Industry Bulletin released by the California Contractors State License Board (CSLB) regarding the delayed implementation of the California Building Energy Standards. CSLB has delayed implementation from January 1st, 2014 to July 1, 2014 due to “unanticipated delays in developing complete performance compliance software for 2013 Public Domain Residential and Nonresidential California Building Energy Code Compliance guidelines, necessitating the CEC action to change the effective date of energy related provisions.” The Industry Bulletin summarized changes regarding various codes including 2013 California Energy Code, Part 6; 2013 California Administrative Code, Chapter 10, Part 1; and, 2013 CALGreen, Part 11. According to the bulletin, as reported by the California Construction Law blog, “Contractors are encouraged to contact their local building enforcement agencies for assistance and/or clarification.” Read the court decision
Read the full story...
Reprinted courtesy of

Basement Foundation Systems’ Getting an Overhaul

October 22, 2014 — Beverley BevenFlorez-CDJ STAFF
Builder reported that “[a] new game-changing system, recently recognized for its energy-efficient composite approach to basement construction, soon could change how American builders construct foundations.” Epitome composite foundation walls from Composite Panel Systems (CPS) “was awarded the Composites and Advanced Materials Exposition’s Unsurpassed Innovation Award in Orlando, Fla., on Oct. 14.” The system “combines integrated stud cavities for mechanicals, insulation, the top plate, and a vapor barrier in a single step.” It has been approved for use in Wisconsin, and is expected to receive International Building code and International Residential Code compliance later this year. Read the court decision
Read the full story...
Reprinted courtesy of

2021 Real Estate Trends: New Year, New Reality—A Day of Reckoning for Borrowers and Tenants

February 08, 2021 — Robert J. Grados & Adam Weaver - Gravel2Gavel Construction & Real Estate Law Blog
On the one-year anniversary of China’s Wuhan lockdown, COVID-19 has become a part of everyday life and as we enter the new year, real estate borrowers and lenders alike will need to understand this new normal and face the reality that is fast approaching. In 2020, as the COVID-19 pandemic swept across the United States, many state and local governments instituted eviction moratoria and other protections for real estate tenants and borrowers. These protections created a window of opportunity for tenants and borrowers to negotiate reasonable solutions with their respective landlords and lenders regarding rent and debt payments amid the COVID-19 pandemic. This temporary period of restricted remedies also allowed courts to analyze legal arguments on how the COVID-19 pandemic impacts the real estate industry. However, with court rulings forthcoming and many of these eviction protections set to expire in 2021, landlords and tenants as well as borrowers and lenders will be forced to have discussions regarding the realities of their industry and their ability to pay their respective rents and mortgages amid the ongoing COVID-19 crisis. Throughout 2020, lenders and landlords were forced to accommodate workout negotiations as their ability to evict or foreclose upon defaulting tenants or borrowers was prohibited. Many commercial real estate parties were able to come to agreements on what borrowers and tenants were able to pay, given the impact of the COVID-19 pandemic on their respective industries. As the legal protections are rolled back and the leverage shifts back into the hands of the lenders and landlords, we will likely see a trend of aggressive landlords and lenders and an increased number of evictions and foreclosures, especially in industries that are most vulnerable to the COVID-19 pandemic: retail and hospitality. Reprinted courtesy of Robert J. Grados, Pillsbury and Adam Weaver, Pillsbury Mr. Grados may be contacted at robert.grados@pillsburylaw.com Mr. Weaver may be contacted at adam.weaver@pillsburylaw.com Read the court decision
Read the full story...
Reprinted courtesy of

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES