. Art Berger. Special Counsel, Construction. FDOT, Tallahassee. . Contract Law. 2. A contract is a . promise. or a set of promises for the breach of which the law gives a remedy.. The “promise” is referred to as “. ID: 533139
DownloadNote - The PPT/PDF document "Basic Principles of Construction Law" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Presentations text content in Basic Principles of Construction Law
Slide1
Basic Principles of Construction Law
Art Berger
Special Counsel, Construction
FDOT, Tallahassee
Slide2
Contract Law
2
Slide3
A contract is a promise or a set of promises for the breach of which the law gives a remedy.The “promise” is referred to as “consideration.”Example: “In consideration for the sum of $3,000,000 contractor agrees to construct the project.”
Formation of a contract:
Slide4
Gift:A voluntary transfer of property to another made gratuitously and without consideration.
Consideration:The cause, motive, price, or impelling influence which induces a contracting party to enter into a contract.
4
Slide5
Department contracts must be written contracts. The Department cannot be sued on an oral contract.
5
Slide6
Standard Specifications: 1-3 Definitions:Contract: The term “Contract” means the entire and integrated agreement between the parties thereunder and supersedes all prior negotiations, representations, or agreements, either written or oral.
6
Slide7
Florida Statutes 337.19(1): Suits by and against department:Suits at law and in equity may be brought and maintained by and against the department on any contract claim arising from breach of an express provision or an implied covenant of a written agreement or a written directive issued by the department pursuant to the written agreement. In any such suite, the department and the contactor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.
7
Slide8
A contract can be amended. For Department contracts, the amendment must be in writing approved by the parties.Standard Specifications: 1-3 Definitions:Supplemental Agreement: A written agreement between the Contractor and the Department, and signed by the surety, modifying the Contract within the limitations set forth in these Specifications.
8
Slide9
4-3.2 Increase, Decrease or Alteration in the Work: The Engineer reserves the right to make alterations in the character of the work which involve a substantial change in the nature of the design or in the type of construction or which materially increases or decreases the cost or time of performance. Such alteration shall not constitute a breach of Contract, shall not invalidate the Contract or release the Surety.
9
Slide10
Other reasons to amend the Contract: Delay of Contractor’s work (5-12.2.2 and 1-3). Written direction to Accelerate the work (5-12.8). Error or omission in Contract Documents (5-4). Expand the physical limits of the project (4-3.4). Unforeseeable work (4-4 and 4-3.4) Differing site conditions (4-3.7) Clarify plans or specifications (4-3.4)
10
Latent physical conditions
Excusable Delays
Slide11
Condition Precedent: A condition precedent must be fulfilled before the effect can follow. A prerequisite. Example:8-7.3.2: As a condition precedent to an extension of Contract Time the Contractor must submit to the Engineer: A preliminary request for an extension of Contract Time must be made in writing to the Engineer within ten calendar days after the commencement of a delay to a controlling item of work.
11
Slide12
Contracts contain express terms and implied terms.Implied terms are frequently referred to as implied covenants.Examples of implied covenants: The implied covenant of good faith and fair dealing applies to every contract.
12
Slide13
In construction contract law an owner (FDOT) has:1. an implied obligation not to do anything to hinder or obstruct performance by the other person;2. an implied obligation not to knowingly delay unreasonably the performance of duties assumed under the contract;3. an implied obligation to furnish information which would not mislead prospective bidders.
13
Slide14
Types of Contracts by payment:Lump sum payments: A single payment of the entire amount due at one time rather than in installments. The payment is for everything needed to perform the desired work.Unit price payments: Contract items are priced per unit and not on the basis of a flat contract price.
14
Slide15
Recoverable Damages:
Delay Damages (5-12.2.2 & 5-12.10(b))Extra Work (5-12.2.1)Non-Recoverable Items of Damage (5-12.10)Loss of Profit (lost profits)Consequential DamagesLoss of Bonding CapacityLoss of Bidding OpportunityAttorney FeesAcceleration, unless by written directive
15
Slide16
Doctrine of Mitigation of Damages:
The doctrine of mitigation of damages imposes on a party injured by breach of contract a duty to exercise reasonable diligence and ordinary care in attempting to minimize his damages, or avoid aggravating the injury.
16
Slide17
Mitigation:
5-12.6.2.1: For any delay claim, the Contractor shall be entitled to monetary compensation for the actual idle labor and equipment, and indirect costs, expenses, and profit thereon, as provided for in 4-3.2.1(d) and solely for costs incurred beyond what reasonable mitigation thereof the Contractor could have undertaken.
17
Slide18
Also, 5-2.2.2:“ except that in the instance of delay to a non-controlling item of work the Contractor may be compensated for the direct costs of idle labor or equipment only, at the rates set forth in 4-3.2.1(a) and (c), and then only to the extent the Contractor could not reasonably mitigate such idleness.”
18
Slide19
Spearin Doctrine:
If a construction contractor is bound by contract to build according to plans and specifications provided by the owner, he will not be responsible for the consequences of defects in the plans and specifications. On the contrary, there is an “implied warranty” that “if the specifications were complied with ,” the work would be adequate. The implied warranty is not overcome by the customary self-protective clauses the government inserts in its contracts, as in Spearin itself, requiring the contractor to examine the site, to check the plans, and to assume responsibility for the work, including its safekeeping, until completion and acceptance. Al Johnson Const. Co. v. United States, 854 F.2d 467, 468 (Fed. Cir. 1988).
19
Slide20
Severin Doctrine:
Under the Severin doctrine, a suit of this nature may be maintained only when the prime contractor has reimbursed its subcontractor for the latter's damages or remains liable for such reimbursement in the future. These are the only ways in which the damages of the subcontractor can become, in turn, the damages of the prime contractor, for which recovery may be had against the Government. Thus, when the subcontract contains a clause completely exonerating a prime contractor from liability to its subcontractor for the damage complained of, suit cannot be maintained by the prime contractor against the Government. The same result will follow when the subcontract provides for a complete release of the prime contractor's liability to the subcontractor upon the granting of additional time for the latter's performance, or the acceptance of final payment by the latter.George Hyman Const. Co. v. United States, 30 Fed. Cl. 170, 174 (Fed. Cl. 1993) aff'd, 39 F.3d 1197 (Fed. Cir. 1994)
20
Slide21
Sovereign Immunity:
A judicial doctrine which precludes bringing suit against the government without its consent.Florida Constitution, Article X, § 13:Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.
21
Slide22
Waiver:
An intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right.
22
Slide23
5-12.2.2:
Failure by the Contractor to comply with the ten calendar day notice shall constitute a waiver of the claim.
Use of Waiver:
23
Slide24
Waiver “MEI asserts that the County waived the written change order requirement by directing work changes without following its own formalities. We decline to hold that the doctrines of waiver and estoppel can be used to defeat the express terms of the contract. Otherwise, the requirement of Pan Am that there first be an express written contract before there can be a waiver of sovereign immunity would be an empty one. An unscrupulous or careless government employee could alter or waive the terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability.”County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049, 1051 (Fla. 1997)
24
Slide25
● FDOT contract must be in writing ● Contracts can be amended ● Condition Precedent = Prerequisite ● Implied covenants ● good faith and fair dealing ● not to hinder performance ● not to knowingly delay ● not to mislead ● Only Damages Payable ● Extra Work ● Delay
25
Slide26
CONTRACT INTERPRETATION
26
Slide27
Contract interpretation is for the court as a matter of law, rather than the jury, only when the agreement is: (a) totally unambiguous, or (b) when any ambiguity may be resolved by applying the rules of construction to situations in which the parol evidence of the parties' intentions is undisputed.
27
Slide28
Rules of Construction (1) Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight.
28
Slide29
(2) A writing is interpreted as a whole endeavoring to give every provision its full meaning and operative effect. (3) Unless a different intention is manifested: (a) The plain meaning of the words in the document should be used to ascertain the parties’ intent. (b) technical terms and words of art are given their technical meaning when used in a transaction within their technical field.
29
Slide30
(4) Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.
30
Slide31
(5) Wherever reasonable, the manifestations of intention of the parties to a promise or agreement are interpreted as consistent with each other and with any relevant course of performance, course of dealing, or usage of trade. A reasonable interpretation of a contract is preferred to an unreasonable one.
31
Slide32
Subarticle 5-2: A requirement occurring in one part of the contract is as binding as though occurring in all. In addition to the work and materials specified in the Specifications as being included in any specific pay item is incidental work necessary for the proper completion of the work. In cases of discrepancy, the governing order of the documents is as follows: 1. Special Provisions. (utility schedules) 2. Technical Special Provisions. 3. Plans. 4. Design Standards. 5. Developmental Specifications. 6. Supplemental Specifications. 7. Standard Specifications. Computed dimensions govern over scaled dimensions.
32
Slide33
● Principal purpose of the parties.● Writing is interpreted as a whole.● Plain meaning of the words used. ● Check defined terms.● Technical terms given technical meaning.● Course of performance important.● A reasonable interpretation is preferred.● Governing order of the documents - Section 5-2.
33
Slide34
34
Florida Statutes §
334.03
“Definitions”
Slide35
35
“Florida Statutes”
Slide36
36
2013 Florida Statutes
Slide37
37
“Public Transportation”
Slide38
38
“Bridge”
Slide39
Schedules
andDelays
39
Slide40
Standard Specification 8-3.2 “Submission of Working Schedule: Within 21 calendar days after Contract award or at the preconstruction conference, whichever is earlier, submit to the Engineer a work progress schedule for the project. The Engineer will review and respond to the Contractor within 15 calendar days of receipt.”
40
Slide41
8-3.2 (continued)Provide a schedule that shows the various activities of work in sufficient detail to demonstrate a reasonable and workable plan to complete the project within the Contract Time. Show the order and interdependence of activities and the sequence for accomplishing the work. Describe all activities in sufficient detail so that the Engineer can readily identify the work and measure the progress on of each activity. Show each activity with a beginning work date, a duration, and a monetary value. Include activities for procurement fabrication, and deliver of materials, plant, and equipment, and review time for shop drawings and submittals.
41
Slide42
Sub-article 8-3.2 continued:Submit and updated Work Progress Schedule, for Engineer’s acceptance, if there is a significant change in the planned order or duration of an activity.. . . . . . .If the Contractor fails to finalize either the initial or a revised schedule in the time specified, the Engineer will withhold all Contract payments until the Engineer accepts the schedule.
42
Not approval
Slide43
Fortec
Constructors v. United States, 8 Cl.Ct. 490 (1985).“It is essential that any changes in the work and time extensions due to the contractor be incorporated into the progress analysis concurrently with the performance of the changes or immediately after the delay and thus integrated into the periodic computer runs to reflect the effect on the critical path. Otherwise, the critical path chart produced by the computer will not reflect the current status of the work performed or the actual progress being attained.”
43
Slide44
J.A. Jones Constr. Co., supra,
72–1 BCA at 42,931.“The value and usefulness of the CPM is dependent upon the Contracting Officer making prompt decisions when excusable delays are alleged by the contractor and upon the contractor promptly revising and updating the CPM chart to incorporate time extensions, whether they be tentative or finally determined, within a short time after occurrence of the delay.”
44
Slide45
Blinderman
Const. Co., Inc. v. U.S., 39 Fed.Cl. 529 (1997).“Finding plaintiff’s CPM network diagram unhelpful, we turn to plaintiff’s CPM mathematical analyses and find them gravely flawed as well. One deficiency is plaintiff’s failure to update its CPM schedules in accordance with the requirements of the contract, which states in no uncertain terms that “[w]hen changes in the work are necessary, the Contractor will submit revisions to the [CPM] network of all activities affected by the change.”
45
Slide46
Section 1-3: Definition of Delay:
Delay: Any unanticipated event, action, force or factor which extends the Contractor’s time of performance of any controlling work item under the Contract. The term “delay” is intended to cover all such events, actions, forces or factors, whether styled “delay,” “disruption,” “interference,” “impedance,” “hindrance,” or otherwise, which are beyond the control of and not caused by the Contractor, or the Contractor’s subcontractors, materialmen, suppliers or other agents. This term does not include “extra work.”
46
Slide47
Controlling Work Items:
Section 1-3: Controlling Work Items:The activity or work item on the critical path having the least amount of total float. The controlling item of work will also be referred to as a Critical Activity.
47
Slide48
8-7.3.2 Contract Time Extensions:The Department may grant an extension of Contract Time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. The Department may allow such extension of time only for delays occurring during the Contract Time period or authorized extensions of the Contract Time period. When failure by the Department to fulfill an obligation under the Contract results in delays to the controlling items of work, the Department will consider such delays as a basis for granting a time extension to the Contract.
48
Slide49
Delays: All delays are either excusable or nonexcusable.
An excusable delay, in general, is a delay that is due to an unforeseeable event beyond the Contractor’s control.Error or omission in the plans.Owner directed changes. Nonexcusable delays are events that are within the Contractor’s control or that are foreseeable. Delays caused by subcontractors. Faulty workmanship by the Contractor.
49
Slide50
Excusable delays are either compensable or noncompensable.
A compensable delay is a delay where the Contractor is entitled to additional time or compensation.Only excusable delays are compensable.A noncompensable excusable delay is frequently beyond the control of both the contractor and the owner, or the terms of the contract may exclude compensation despite being an excusable delay.
50
Slide51
Concurrent Delays
Concurrent delays are separate delays to the critical path that occur at the same time.Section 4-3.2.1(d)(2): Further, in the event there are concurrent delays to one or more controlling work items, one or more being caused by the Department and one or more being caused by the Contractor, the Contractor shall be entitled to a time extension for each day that a controlling work item is delayed by the Department but shall have no right to nor receive any monetary compensation for any indirect costs for any days of concurrent delay.
51
Slide52
Float:
8-3.2.5 (Special Provision “SP0080302A”)Float: Is also known as slack time or slide time; it is defined as the amount of time the finish of any activity can be delayed. Two kinds of float are possible; Total float is how much an activity can be delayed without affecting the finish date of the project or an intermediate deadline; it is the difference between the late finish date and the early finish date. Free float is how much an activity can be delayed without affecting its earliest successor.Float is not for the exclusive use or benefit of either the Department or the Contractor.
52
Slide53
WHAT IS A SCHEDULE GOOD FOR?A Study of Issues Posed by Schedules on Complex Projects
Anthony L. Meagher Robert M. D’Onofrio, P.E. DLA Piper (US) URS Corporation Baltimore, MD New York, NY
American Bar AssociationForum on the Construction Industry2012 Mid Winter Meeting
53
Slide54
SCHEDULE DELAY ANALYSIS METHODS
Standard Names
Specific Method
Time Impact Analysis
Properly adjusted TIA
Unadjusted TIA (Windows)
Prospective TIA
Window wide periods
Collapsed as-built
Multiple period using updates
Collapse stepped removal
Remove owner
Remove contractor
As-built critical path
Critical path using updates
As-built path
Impacted As-planned
Stepped insertion
Global
Compare owner/contractor
Total time
As-planned v as-built
Slide55
METHODS APPLIED TO SAME FACT
PATTERN(Prepared by Anthony L. Meagher and Robert M. D’Onofrio, P.E.)
Analysis Methodology
Excusable Compen-sable
Excusable Non-compen-sable
Non-excusable (LD’s)
Total Delay
Time Impact Analysis (properly adjusted)
1
4
1
6
Impacted As-Planned
6
0
1
7
Collapsed As-Built
2
0
4
6
Impacted As-Planned (comp)
0
5
1
6
Total Time/As-Built Critical
6
0
0
6
Prospective TIA
3
2
1
6
Windows/TIA
1
2
3
6
Windows with Wide Periods
0
5
1
6
Slide56
Properly adjusted TIAUnadjusted TIA (Windows)Prospective TIAWindow wide periodsMultiple period using updatesCollapse stepped removalRemove ownerRemove contractorCritical path using updatesAs-built pathStepped insertionGlobalCompare owner/contractorAs-planned v as-builtGuidelineTime Impact AnalysisCollapsed as-builtAs-built critical pathImpacted As-plannedTotal time1YesYesYesNoYesNoNoNoNoNoNoNoNoNo2YesMaybeYesNoNoNoNoNoNoNoNoNoNoNo3YesYesYesYesNoNoNoNoNoNoYesNoNoNo4YesNoYesNoNoNoNoNoNoNoNoNoNoNo5YesYesMaybeYesYesYesYesYesYesYesNoNoNoYes6YesYesNoYesYesYesYesYesYesYesNoNoNoYes7YesYesYesYesNoNoNoNoNoNoNoNoNoNo8YesMaybeMaybeMaybeNoNoNoNoNoNoNoNoNoNo
(Prepared by Anthony L. Meagher and Robert M.
D’Onofrio
, P.E.)
Slide57
57
Slide58
58
Slide59
Supplemental Agreements
59
Slide60
Florida Statute § 337.11:(9)(a) The department shall permit the use of written supplemental agreements, written work orders pursuant to a contingency pay item or contingency supplemental agreement, and written change orders to any contract entered into by the department. Any supplemental agreement shall be reduced to written contract form and executed by the contractor and the department. Any supplemental agreement modifying any item in the original contract must be approved by the head of the department, or his or her designee, and executed by the appropriate person designated by him or her.
60
Slide61
61
“full and complete settlement”
Slide62
62
Slide63
63
Slide64
64
Slide65
(1) (continued from page 1) Full and Final SA Contract Amendment: A. The Department and the Contractor agree that the contract time adjustment and compensation specified in the Supplemental Agreement constitute a full and final settlement of all disputes, claims, matters and issues of any nature or kind, known or unknown, which the Contractor has, or may have, arising out of or regarding the Contract , including but not limited to, notices of intent to claim, requests for equitable adjustment, requests for compensation and extensions of time, certified claims, causes of action, demands, controversies as to work contracted and performed, work added, deleted and modified, unforeseen work, extra work, differing site conditions, delays and disruptions, utility conflicts, design changes or defects, suspensions, lost productivity, extended or unabsorbed home office and job site overhead, Maintenance of Traffic adjustments, bonuses, incentives, disincentives, lost profits, mark-ups, cumulative impacts to the project(s), all direct and indirect costs for equipment, manpower, materials, overhead, profit and delay, and any other adverse financial or schedule impacts to the subject project(s). B. This Supplemental Agreement supersedes all prior negotiations, communications, representations, commitments, agreements or understandings , written or oral, not specifically incorporated in this Supplemental Agreement, and that no deviation from the terms of this Supplemental Agreement shall be predicated upon such prior negotiations, communications, representations, commitments, agreements or understandings. C. The Department agrees to pay the Contractor the total sum of $ ______________ . D. Nothing in this Supplemental Agreement shall relieve the Contractor of its obligations to the Department under Section 5-13, Standard Specifications.
65
Slide66
Unilateral Payments:Section 1-3, Unilateral Payment: A payment of money made to the Contractor by the Department pursuant to Section 337.11(12), Florida Statutes for sums the Department determines to be due to the Contractor for work performed on the project, and whereby the Contractor by acceptance of such payment does not waive any rights the Contractor may otherwise have against the Department for payment of any additional sums the Contractor claims are due for the work.
66
Slide67
Florida Statute 337.11(12):Notwithstanding any other provision of law to the contrary, the department has unilateral authority to pay the contractor the sums the department determines to be due to the contractor for work performed on a project. This unilateral authority to pay by the department does not preclude or limit the rights of the department and the contractor to negotiate and agree to the amounts to be paid to the contractor. By acceptance of any such unilateral payment, the contractor does not waive any rights the contractor may have against the department for payment of any additional sums the contractor claims are due for the work.
67
Slide68
Miscellaneous Legal Topics
68
Slide69
69
Florida Transportation Code: F.S. 334.01
Slide70
Florida Statutes § 337.274: The department and its authorized agents and employees are authorized to enter upon any lands, waters, and premises, upon giving reasonable notice to the landowner, for the purpose of making surveys, soundings, drillings, appraisals, environmental assessments, archaeological assessments, and examinations necessary to perform its duties and functions; and any such entry shall not be deemed a trespass or an entry that would constitute a taking in an eminent domain proceeding. The department shall make reimbursement for any actual damages to such lands, water, and premises as a result of such activities.
Entry onto Lands
70
Slide71
Florida Statutes § 472.029: Authorization to enter lands of third parties; conditions:(1) In general.--Surveyors and mappers or their subordinates may go on, over, and upon the lands of others when necessary to make surveys and maps or locate or set monuments, and, in so doing, may carry with them their agents and employees necessary for that purpose. Entry under the right granted by this subsection does not constitute trespass, and surveyors and mappers and their duly authorized agents or employees so entering are not liable to arrest or to a civil action by reason of such entry; however, this subsection does not give authority to registrants, subordinates, agents, or employees to destroy, injure, damage, or move any physical improvements on lands of another without the written permission of the landowner.
71
Slide72
(2) Liability and duty of care on agricultural land. (a) Any person regulated by this chapter who enters agricultural land shall do so in compliance with all federal, state, and local laws, rules, and regulations pertaining to premises security, agricultural protections, and other health and safety requirements in place on such land. (b) A landowner is not liable to any third party for civil or criminal acts or damages that result from the negligent or intentional conduct of any person regulated by this chapter on agricultural land. (c) If written notice is not delivered to the landowner or landowner's registered agent at least 3 business days prior to entry on an agricultural parcel containing more than 160 acres, the duty of care owed by the landowner to those regulated by this chapter is that due an undiscovered trespasser. (d) This subsection applies only to land classified as agricultural pursuant to s. 193.461.
72
Slide73
Interest Rate: Subarticle 9-9 Interest Due on Delayed Payments.The Department will determine and pay any interest due the Contractor for delays in final payment in accordance with Section 337.141 of the Florida Statutes. Florida Statutes Section 337.141(3) For each day after 75 days, or 30 days after settlement of a claim, the department shall pay to the contractor interest at the rate set forth in s. 55.03.
73
Slide74
Florida Statutes § 55.03. Judgments; rate of interest, generally.(1) On December 1, March 1, June 1, and September 1 of each year, the Chief Financial Officer shall set the rate of interest that shall be payable on judgments or decrees for the calendar quarter beginning January 1 and adjust the rate quarterly on April 1, July 1, and October 1 by averaging the discount rate of the Federal Reserve Bank of New York for the preceding 12 months, then adding 400 basis points to the averaged federal discount rate.
74
Slide75
http://www.myfloridacfo.com/aadir/interest.htmInterest Rates Established Quarterly under Chapter 2011-169, Laws of Florida:
75
Slide76
23 United States Code Annotated § 111. Agreements relating to use of and access to rights-of-way--Interstate System: (a) In general.-- All agreements between the Secretary and the State transportation department for the construction of projects on the Interstate System shall contain a clause providing that the State will not add any points of access to, or exit from, the project in addition to those approved by the Secretary in the plans for such project, without the prior approval of the Secretary.
Access to Interstate System
76
Slide77
23 Code of Federal Regulation § 710.403(4–1–09 Edition):(c) Other use or occupancy. Subject to 23 U.S.C. 111, the temporary or permanent occupancy or use of right-of-way, including air space, for nonhighway purposes and the reservation of subsurface mineral rights within the boundaries of the rights-of-way of Federal- aid highways, may be approved by the Administrator, if he determines that such occupancy, use or reservation is in the public interest and will not impair the highway or interfere with the free and safe flow of traffic thereon.
77
Slide78
23 Code of Federal Regulation § 1.23(c)(4-1-10 Edition)(a) The State Transportation Department must assure that all real property within the boundaries of a federally-aided facility is devoted exclusively to the purposes of that facility and is preserved free of all other public or private alternative uses, unless such alternative uses are permitted by Federal regulation or the FHWA. An alternative use must be consistent with the continued operation, maintenance, and safety of the facility, and such use shall not result in the exposure of the facility’s users or others to hazards.
78
Slide79
Public Records Law
79
Slide80
● Florida has a broad public records law. ● Access to Public Records is recognized in the Constitution of the State of Florida: ● Article I Section 24 of Florida’s Constitution states: “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.”
80
Slide81
Florida Statutes §119.01: ● It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.
81
Slide82
● Standard Specification 3-9 (Public Records). “Allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, made or received by the Contractor in conjunction with this Contract. . . . . Failure to grant such public access will be grounds for immediate termination of this Contract by the Department pursuant to 8-9.1.”
82
Slide83
● Exemptions: (d)1 “A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings.”
83
“Attorney Work Product”
Slide84
(exemptions continued)● F.S. § 119.071(3)(b)(1): “Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.”
84
Slide85
● F.S. § 334.03(2): “Bridge” means a structure, including supports, erected over a depression or an obstruction, such as water or a highway or railway, and having a track or passageway for carrying traffic as defined in chapter 316 or other moving loads.
85
Slide86
(exemptions continued)● Florida Statutes § 119.071(1)(b)(2):Sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until such time as the agency provides notice of an intended decision or until 30 days after opening the bids, proposals, or final replies, whichever is earlier.
86
Slide87
(exemptions continued) ● Florida Statutes § 119.071(1)(c): Any financial statement that an agency requires a prospective bidder to submit in order to prequalify for bidding or for responding to a proposal for a road or any other public works project is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
87
Slide88
88
Slide89
Document Retention Policy
FDOT’s Retention and Disposal Schedule:Where is it? ● DOT Infonet ● Registered SharePoint Sites (under “About DOT”) ● FA - Administration ● Support Services ● Records Management (under “Main Menu”). ● (a 135 page document)
89
Slide90
90
Slide91
91
Slide92
92
Slide93
93
Slide94
94
Slide95Slide96
96
Slide97
Engineer of RecordChanges to the Plans
97
Slide98
● All changes to the plans must be approved by the Engineer of Record (EOR) prior to proceeding with the change. ● By law, the EOR is liable for plan errors. ● Florida Statute §471.023(3) provides:“The fact that a licensed engineer practices through a business organization does not relieve the licensee from personal liability for negligence, misconduct, or wrongful acts committed by him or her. Partnerships and all partners shall be jointly and severally liable for the negligence, misconduct, or wrongful acts committed by their agents, employees, or partners while acting in a professional capacity.”
98
Slide99
● Florida Statutes §471.025 requires all final drawings to be signed, dated, and sealed by the engineer.● Florida Statutes §471.025 says: “All final drawings, specifications, plans, reports, or documents prepared or issued by the licensee and being filed for public record and all final documents provided to the owner or the owner's representative shall be signed by the licensee, dated, and sealed with said seal.”● 61G15-23.001. Seals Acceptable to the Board.(1) Pursuant to Section 471.025, F.S., the Board hereby establishes as indicated below the forms of seals which are acceptable to the Board.
99
Slide100
● (a) Any seal capable of leaving a permanent ink representation or other form of opaque and permanent impression which contains the information described herein is acceptable to the Board. (b) Said seal shall be a minimum of 1 7/8 inches in diameter and shall be of a design similar to those set forth below.
100
Slide101
● Drawings, specifications, plans, reports, final documents, or documents prepared or issued by a licensee may be transmitted electronically and may be signed by the licensee, dated, and sealed electronically with said seal in accordance with ss. 668.001-668.006. (F.S.A. § 471.025). Also, FAC 61G15-23.003.● Florida Statutes §95.11(4)(a) provides: “An action for professional malpractice, other than medical malpractice, whether founded on contract or tort [must be filed within 2 years]; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.
101
Slide102Slide103
103
Slide104
104
Slide105
105
Slide106
106
Slide107
107
Slide108
108
Slide109
● Therefore, the statute of limitations for suing the EOR for NEGLIGENCE could occur during the project – prior to final acceptance. ● The statute of limitations for suing the EOR for BREACH OF CONTRACT is 4 years. (§95.11(3)(c)). ● Standard Specification 5-1.4.8 says:● Modifications for Construction: Where the Engineer allows the Contractor to make modifications to the permanent works for the purposes of expediting the Contractor’s chosen construction methods, the Contractor shall submit proposals to the Engineer of Record for review and approval prior to modifying the works.
109
Slide110
● Engineer of Record is a defined term in the Standard Specifications. ● “The Professional Engineer or Engineering Firm registered in the State of Florida that develops the criteria and concept for the project, performs the analysis, and is responsible for the preparation of the Plans and Specifications. The Engineer of Record may be Departmental in-house staff or a consultant retained by the Department. The Contractor shall not employ the Engineer of Record as the Contractor’s Engineer of Record or as a Specialty Engineer.
110
Slide111
● There is also a definition in the Standard Specifications for the “Contractor’s Engineer of Record.” ● Contractor’s Engineer of Record. “A Professional Engineer registered in the State of Florida, other than the Engineer of Record or his subcontracted consultant, who undertakes the design and drawing of components of the permanent structure as part of a redesign or Cost Savings Initiative Proposal, or for repair designs and details of the permanent work. The Contractor’s Engineer of Record may also serve as the Specialty Engineer. The Contractor’s Engineer of Record must be an employee of a pre-qualified firm. The firm shall be pre-qualified in accordance with the Rules of the Department of Transportation, Chapter 14-75. Any Corporation or Partnership offering engineering services must hold a Certificate of Authorization from the Florida Department of Business and Professional Regulation.”
111
Slide112
● Florida Administrative Code 61G15-30.002:Engineer of Record. A Florida professional engineer who is in responsible charge for the preparation, signing, dating, sealing and issuing of any engineering document(s) for any engineering service or creative work.
112
Slide113
● Standard Specification 4-3.9.3(4).“The Department may require that engineering analyses be performed by a prequalified consultant in the applicable class of work. Support all design changes that result from the Proposal with prints of drawings and computations signed and sealed by the Contractor’s Engineer of Record. Written documentation or drawings will be provided clearly delineating the responsibility of the Contractor’s Engineer of Record.”
Download this presentation
DownloadNote - The PPT/PDF document "Basic Principles of Construction Law" is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
Presentations text content in Basic Principles of Construction Law
Basic Principles of Construction Law
Art Berger
Special Counsel, Construction
FDOT, Tallahassee
Slide2Contract Law
2
Slide3A contract is a promise or a set of promises for the breach of which the law gives a remedy.The “promise” is referred to as “consideration.”Example: “In consideration for the sum of $3,000,000 contractor agrees to construct the project.”
Formation of a contract:
Slide4Gift:A voluntary transfer of property to another made gratuitously and without consideration.
Consideration:The cause, motive, price, or impelling influence which induces a contracting party to enter into a contract.
4
Slide5 Department contracts must be written contracts. The Department cannot be sued on an oral contract.
5
Slide6Standard Specifications: 1-3 Definitions:Contract: The term “Contract” means the entire and integrated agreement between the parties thereunder and supersedes all prior negotiations, representations, or agreements, either written or oral.
6
Slide7Florida Statutes 337.19(1): Suits by and against department:Suits at law and in equity may be brought and maintained by and against the department on any contract claim arising from breach of an express provision or an implied covenant of a written agreement or a written directive issued by the department pursuant to the written agreement. In any such suite, the department and the contactor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive.
7
Slide8A contract can be amended. For Department contracts, the amendment must be in writing approved by the parties.Standard Specifications: 1-3 Definitions:Supplemental Agreement: A written agreement between the Contractor and the Department, and signed by the surety, modifying the Contract within the limitations set forth in these Specifications.
8
Slide94-3.2 Increase, Decrease or Alteration in the Work: The Engineer reserves the right to make alterations in the character of the work which involve a substantial change in the nature of the design or in the type of construction or which materially increases or decreases the cost or time of performance. Such alteration shall not constitute a breach of Contract, shall not invalidate the Contract or release the Surety.
9
Slide10Other reasons to amend the Contract: Delay of Contractor’s work (5-12.2.2 and 1-3). Written direction to Accelerate the work (5-12.8). Error or omission in Contract Documents (5-4). Expand the physical limits of the project (4-3.4). Unforeseeable work (4-4 and 4-3.4) Differing site conditions (4-3.7) Clarify plans or specifications (4-3.4)
10
Latent physical conditions
Excusable Delays
Slide11Condition Precedent: A condition precedent must be fulfilled before the effect can follow. A prerequisite. Example:8-7.3.2: As a condition precedent to an extension of Contract Time the Contractor must submit to the Engineer: A preliminary request for an extension of Contract Time must be made in writing to the Engineer within ten calendar days after the commencement of a delay to a controlling item of work.
11
Slide12Contracts contain express terms and implied terms.Implied terms are frequently referred to as implied covenants.Examples of implied covenants: The implied covenant of good faith and fair dealing applies to every contract.
12
Slide13In construction contract law an owner (FDOT) has:1. an implied obligation not to do anything to hinder or obstruct performance by the other person;2. an implied obligation not to knowingly delay unreasonably the performance of duties assumed under the contract;3. an implied obligation to furnish information which would not mislead prospective bidders.
13
Slide14Types of Contracts by payment:Lump sum payments: A single payment of the entire amount due at one time rather than in installments. The payment is for everything needed to perform the desired work.Unit price payments: Contract items are priced per unit and not on the basis of a flat contract price.
14
Slide15Recoverable Damages:
Delay Damages (5-12.2.2 & 5-12.10(b))Extra Work (5-12.2.1)Non-Recoverable Items of Damage (5-12.10)Loss of Profit (lost profits)Consequential DamagesLoss of Bonding CapacityLoss of Bidding OpportunityAttorney FeesAcceleration, unless by written directive
15
Slide16Doctrine of Mitigation of Damages:
The doctrine of mitigation of damages imposes on a party injured by breach of contract a duty to exercise reasonable diligence and ordinary care in attempting to minimize his damages, or avoid aggravating the injury.
16
Slide17Mitigation:
5-12.6.2.1: For any delay claim, the Contractor shall be entitled to monetary compensation for the actual idle labor and equipment, and indirect costs, expenses, and profit thereon, as provided for in 4-3.2.1(d) and solely for costs incurred beyond what reasonable mitigation thereof the Contractor could have undertaken.
17
Slide18Also, 5-2.2.2:“ except that in the instance of delay to a non-controlling item of work the Contractor may be compensated for the direct costs of idle labor or equipment only, at the rates set forth in 4-3.2.1(a) and (c), and then only to the extent the Contractor could not reasonably mitigate such idleness.”
18
Slide19Spearin Doctrine:
If a construction contractor is bound by contract to build according to plans and specifications provided by the owner, he will not be responsible for the consequences of defects in the plans and specifications. On the contrary, there is an “implied warranty” that “if the specifications were complied with ,” the work would be adequate. The implied warranty is not overcome by the customary self-protective clauses the government inserts in its contracts, as in Spearin itself, requiring the contractor to examine the site, to check the plans, and to assume responsibility for the work, including its safekeeping, until completion and acceptance. Al Johnson Const. Co. v. United States, 854 F.2d 467, 468 (Fed. Cir. 1988).
19
Slide20Severin Doctrine:
Under the Severin doctrine, a suit of this nature may be maintained only when the prime contractor has reimbursed its subcontractor for the latter's damages or remains liable for such reimbursement in the future. These are the only ways in which the damages of the subcontractor can become, in turn, the damages of the prime contractor, for which recovery may be had against the Government. Thus, when the subcontract contains a clause completely exonerating a prime contractor from liability to its subcontractor for the damage complained of, suit cannot be maintained by the prime contractor against the Government. The same result will follow when the subcontract provides for a complete release of the prime contractor's liability to the subcontractor upon the granting of additional time for the latter's performance, or the acceptance of final payment by the latter.George Hyman Const. Co. v. United States, 30 Fed. Cl. 170, 174 (Fed. Cl. 1993) aff'd, 39 F.3d 1197 (Fed. Cir. 1994)
20
Slide21Sovereign Immunity:
A judicial doctrine which precludes bringing suit against the government without its consent.Florida Constitution, Article X, § 13:Provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.
21
Slide22Waiver:
An intentional or voluntary relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right.
22
Slide235-12.2.2:
Failure by the Contractor to comply with the ten calendar day notice shall constitute a waiver of the claim.
Use of Waiver:
23
Slide24Waiver “MEI asserts that the County waived the written change order requirement by directing work changes without following its own formalities. We decline to hold that the doctrines of waiver and estoppel can be used to defeat the express terms of the contract. Otherwise, the requirement of Pan Am that there first be an express written contract before there can be a waiver of sovereign immunity would be an empty one. An unscrupulous or careless government employee could alter or waive the terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability.”County of Brevard v. Miorelli Engineering, Inc., 703 So.2d 1049, 1051 (Fla. 1997)
24
Slide25● FDOT contract must be in writing ● Contracts can be amended ● Condition Precedent = Prerequisite ● Implied covenants ● good faith and fair dealing ● not to hinder performance ● not to knowingly delay ● not to mislead ● Only Damages Payable ● Extra Work ● Delay
25
Slide26CONTRACT INTERPRETATION
26
Slide27Contract interpretation is for the court as a matter of law, rather than the jury, only when the agreement is: (a) totally unambiguous, or (b) when any ambiguity may be resolved by applying the rules of construction to situations in which the parol evidence of the parties' intentions is undisputed.
27
Slide28Rules of Construction (1) Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight.
28
Slide29(2) A writing is interpreted as a whole endeavoring to give every provision its full meaning and operative effect. (3) Unless a different intention is manifested: (a) The plain meaning of the words in the document should be used to ascertain the parties’ intent. (b) technical terms and words of art are given their technical meaning when used in a transaction within their technical field.
29
Slide30(4) Where an agreement involves repeated occasions for performance by either party with knowledge of the nature of the performance and opportunity for objection to it by the other, any course of performance accepted or acquiesced in without objection is given great weight in the interpretation of the agreement.
30
Slide31(5) Wherever reasonable, the manifestations of intention of the parties to a promise or agreement are interpreted as consistent with each other and with any relevant course of performance, course of dealing, or usage of trade. A reasonable interpretation of a contract is preferred to an unreasonable one.
31
Slide32Subarticle 5-2: A requirement occurring in one part of the contract is as binding as though occurring in all. In addition to the work and materials specified in the Specifications as being included in any specific pay item is incidental work necessary for the proper completion of the work. In cases of discrepancy, the governing order of the documents is as follows: 1. Special Provisions. (utility schedules) 2. Technical Special Provisions. 3. Plans. 4. Design Standards. 5. Developmental Specifications. 6. Supplemental Specifications. 7. Standard Specifications. Computed dimensions govern over scaled dimensions.
32
Slide33● Principal purpose of the parties.● Writing is interpreted as a whole.● Plain meaning of the words used. ● Check defined terms.● Technical terms given technical meaning.● Course of performance important.● A reasonable interpretation is preferred.● Governing order of the documents - Section 5-2.
33
Slide3434
Florida Statutes §
334.03
“Definitions”
Slide3535
“Florida Statutes”
Slide3636
2013 Florida Statutes
Slide3737
“Public Transportation”
Slide3838
“Bridge”
Slide39Schedules
andDelays
39
Slide40Standard Specification 8-3.2 “Submission of Working Schedule: Within 21 calendar days after Contract award or at the preconstruction conference, whichever is earlier, submit to the Engineer a work progress schedule for the project. The Engineer will review and respond to the Contractor within 15 calendar days of receipt.”
40
Slide418-3.2 (continued)Provide a schedule that shows the various activities of work in sufficient detail to demonstrate a reasonable and workable plan to complete the project within the Contract Time. Show the order and interdependence of activities and the sequence for accomplishing the work. Describe all activities in sufficient detail so that the Engineer can readily identify the work and measure the progress on of each activity. Show each activity with a beginning work date, a duration, and a monetary value. Include activities for procurement fabrication, and deliver of materials, plant, and equipment, and review time for shop drawings and submittals.
41
Slide42Sub-article 8-3.2 continued:Submit and updated Work Progress Schedule, for Engineer’s acceptance, if there is a significant change in the planned order or duration of an activity.. . . . . . .If the Contractor fails to finalize either the initial or a revised schedule in the time specified, the Engineer will withhold all Contract payments until the Engineer accepts the schedule.
42
Not approval
Slide43Fortec
Constructors v. United States, 8 Cl.Ct. 490 (1985).“It is essential that any changes in the work and time extensions due to the contractor be incorporated into the progress analysis concurrently with the performance of the changes or immediately after the delay and thus integrated into the periodic computer runs to reflect the effect on the critical path. Otherwise, the critical path chart produced by the computer will not reflect the current status of the work performed or the actual progress being attained.”
43
Slide44J.A. Jones Constr. Co., supra,
72–1 BCA at 42,931.“The value and usefulness of the CPM is dependent upon the Contracting Officer making prompt decisions when excusable delays are alleged by the contractor and upon the contractor promptly revising and updating the CPM chart to incorporate time extensions, whether they be tentative or finally determined, within a short time after occurrence of the delay.”
44
Slide45Blinderman
Const. Co., Inc. v. U.S., 39 Fed.Cl. 529 (1997).“Finding plaintiff’s CPM network diagram unhelpful, we turn to plaintiff’s CPM mathematical analyses and find them gravely flawed as well. One deficiency is plaintiff’s failure to update its CPM schedules in accordance with the requirements of the contract, which states in no uncertain terms that “[w]hen changes in the work are necessary, the Contractor will submit revisions to the [CPM] network of all activities affected by the change.”
45
Slide46Section 1-3: Definition of Delay:
Delay: Any unanticipated event, action, force or factor which extends the Contractor’s time of performance of any controlling work item under the Contract. The term “delay” is intended to cover all such events, actions, forces or factors, whether styled “delay,” “disruption,” “interference,” “impedance,” “hindrance,” or otherwise, which are beyond the control of and not caused by the Contractor, or the Contractor’s subcontractors, materialmen, suppliers or other agents. This term does not include “extra work.”
46
Slide47Controlling Work Items:
Section 1-3: Controlling Work Items:The activity or work item on the critical path having the least amount of total float. The controlling item of work will also be referred to as a Critical Activity.
47
Slide488-7.3.2 Contract Time Extensions:The Department may grant an extension of Contract Time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. The Department may allow such extension of time only for delays occurring during the Contract Time period or authorized extensions of the Contract Time period. When failure by the Department to fulfill an obligation under the Contract results in delays to the controlling items of work, the Department will consider such delays as a basis for granting a time extension to the Contract.
48
Slide49Delays: All delays are either excusable or nonexcusable.
An excusable delay, in general, is a delay that is due to an unforeseeable event beyond the Contractor’s control.Error or omission in the plans.Owner directed changes. Nonexcusable delays are events that are within the Contractor’s control or that are foreseeable. Delays caused by subcontractors. Faulty workmanship by the Contractor.
49
Slide50Excusable delays are either compensable or noncompensable.
A compensable delay is a delay where the Contractor is entitled to additional time or compensation.Only excusable delays are compensable.A noncompensable excusable delay is frequently beyond the control of both the contractor and the owner, or the terms of the contract may exclude compensation despite being an excusable delay.
50
Slide51Concurrent Delays
Concurrent delays are separate delays to the critical path that occur at the same time.Section 4-3.2.1(d)(2): Further, in the event there are concurrent delays to one or more controlling work items, one or more being caused by the Department and one or more being caused by the Contractor, the Contractor shall be entitled to a time extension for each day that a controlling work item is delayed by the Department but shall have no right to nor receive any monetary compensation for any indirect costs for any days of concurrent delay.
51
Slide52Float:
8-3.2.5 (Special Provision “SP0080302A”)Float: Is also known as slack time or slide time; it is defined as the amount of time the finish of any activity can be delayed. Two kinds of float are possible; Total float is how much an activity can be delayed without affecting the finish date of the project or an intermediate deadline; it is the difference between the late finish date and the early finish date. Free float is how much an activity can be delayed without affecting its earliest successor.Float is not for the exclusive use or benefit of either the Department or the Contractor.
52
Slide53WHAT IS A SCHEDULE GOOD FOR?A Study of Issues Posed by Schedules on Complex Projects
Anthony L. Meagher Robert M. D’Onofrio, P.E. DLA Piper (US) URS Corporation Baltimore, MD New York, NY
American Bar AssociationForum on the Construction Industry2012 Mid Winter Meeting
53
Slide54SCHEDULE DELAY ANALYSIS METHODS
Standard Names
Specific Method
Time Impact Analysis
Properly adjusted TIA
Unadjusted TIA (Windows)
Prospective TIA
Window wide periods
Collapsed as-built
Multiple period using updates
Collapse stepped removal
Remove owner
Remove contractor
As-built critical path
Critical path using updates
As-built path
Impacted As-planned
Stepped insertion
Global
Compare owner/contractor
Total time
As-planned v as-built
Slide55METHODS APPLIED TO SAME FACT
PATTERN(Prepared by Anthony L. Meagher and Robert M. D’Onofrio, P.E.)
Analysis Methodology
Excusable Compen-sable
Excusable Non-compen-sable
Non-excusable (LD’s)
Total Delay
Time Impact Analysis (properly adjusted)
1
4
1
6
Impacted As-Planned
6
0
1
7
Collapsed As-Built
2
0
4
6
Impacted As-Planned (comp)
0
5
1
6
Total Time/As-Built Critical
6
0
0
6
Prospective TIA
3
2
1
6
Windows/TIA
1
2
3
6
Windows with Wide Periods
0
5
1
6
Slide56Properly adjusted TIAUnadjusted TIA (Windows)Prospective TIAWindow wide periodsMultiple period using updatesCollapse stepped removalRemove ownerRemove contractorCritical path using updatesAs-built pathStepped insertionGlobalCompare owner/contractorAs-planned v as-builtGuidelineTime Impact AnalysisCollapsed as-builtAs-built critical pathImpacted As-plannedTotal time1YesYesYesNoYesNoNoNoNoNoNoNoNoNo2YesMaybeYesNoNoNoNoNoNoNoNoNoNoNo3YesYesYesYesNoNoNoNoNoNoYesNoNoNo4YesNoYesNoNoNoNoNoNoNoNoNoNoNo5YesYesMaybeYesYesYesYesYesYesYesNoNoNoYes6YesYesNoYesYesYesYesYesYesYesNoNoNoYes7YesYesYesYesNoNoNoNoNoNoNoNoNoNo8YesMaybeMaybeMaybeNoNoNoNoNoNoNoNoNoNo
(Prepared by Anthony L. Meagher and Robert M.
D’Onofrio
, P.E.)
Slide5757
Slide5858
Slide59Supplemental Agreements
59
Slide60Florida Statute § 337.11:(9)(a) The department shall permit the use of written supplemental agreements, written work orders pursuant to a contingency pay item or contingency supplemental agreement, and written change orders to any contract entered into by the department. Any supplemental agreement shall be reduced to written contract form and executed by the contractor and the department. Any supplemental agreement modifying any item in the original contract must be approved by the head of the department, or his or her designee, and executed by the appropriate person designated by him or her.
60
Slide6161
“full and complete settlement”
Slide6262
Slide6363
Slide6464
Slide65(1) (continued from page 1) Full and Final SA Contract Amendment: A. The Department and the Contractor agree that the contract time adjustment and compensation specified in the Supplemental Agreement constitute a full and final settlement of all disputes, claims, matters and issues of any nature or kind, known or unknown, which the Contractor has, or may have, arising out of or regarding the Contract , including but not limited to, notices of intent to claim, requests for equitable adjustment, requests for compensation and extensions of time, certified claims, causes of action, demands, controversies as to work contracted and performed, work added, deleted and modified, unforeseen work, extra work, differing site conditions, delays and disruptions, utility conflicts, design changes or defects, suspensions, lost productivity, extended or unabsorbed home office and job site overhead, Maintenance of Traffic adjustments, bonuses, incentives, disincentives, lost profits, mark-ups, cumulative impacts to the project(s), all direct and indirect costs for equipment, manpower, materials, overhead, profit and delay, and any other adverse financial or schedule impacts to the subject project(s). B. This Supplemental Agreement supersedes all prior negotiations, communications, representations, commitments, agreements or understandings , written or oral, not specifically incorporated in this Supplemental Agreement, and that no deviation from the terms of this Supplemental Agreement shall be predicated upon such prior negotiations, communications, representations, commitments, agreements or understandings. C. The Department agrees to pay the Contractor the total sum of $ ______________ . D. Nothing in this Supplemental Agreement shall relieve the Contractor of its obligations to the Department under Section 5-13, Standard Specifications.
65
Slide66Unilateral Payments:Section 1-3, Unilateral Payment: A payment of money made to the Contractor by the Department pursuant to Section 337.11(12), Florida Statutes for sums the Department determines to be due to the Contractor for work performed on the project, and whereby the Contractor by acceptance of such payment does not waive any rights the Contractor may otherwise have against the Department for payment of any additional sums the Contractor claims are due for the work.
66
Slide67Florida Statute 337.11(12):Notwithstanding any other provision of law to the contrary, the department has unilateral authority to pay the contractor the sums the department determines to be due to the contractor for work performed on a project. This unilateral authority to pay by the department does not preclude or limit the rights of the department and the contractor to negotiate and agree to the amounts to be paid to the contractor. By acceptance of any such unilateral payment, the contractor does not waive any rights the contractor may have against the department for payment of any additional sums the contractor claims are due for the work.
67
Slide68Miscellaneous Legal Topics
68
Slide6969
Florida Transportation Code: F.S. 334.01
Slide70Florida Statutes § 337.274: The department and its authorized agents and employees are authorized to enter upon any lands, waters, and premises, upon giving reasonable notice to the landowner, for the purpose of making surveys, soundings, drillings, appraisals, environmental assessments, archaeological assessments, and examinations necessary to perform its duties and functions; and any such entry shall not be deemed a trespass or an entry that would constitute a taking in an eminent domain proceeding. The department shall make reimbursement for any actual damages to such lands, water, and premises as a result of such activities.
Entry onto Lands
70
Slide71Florida Statutes § 472.029: Authorization to enter lands of third parties; conditions:(1) In general.--Surveyors and mappers or their subordinates may go on, over, and upon the lands of others when necessary to make surveys and maps or locate or set monuments, and, in so doing, may carry with them their agents and employees necessary for that purpose. Entry under the right granted by this subsection does not constitute trespass, and surveyors and mappers and their duly authorized agents or employees so entering are not liable to arrest or to a civil action by reason of such entry; however, this subsection does not give authority to registrants, subordinates, agents, or employees to destroy, injure, damage, or move any physical improvements on lands of another without the written permission of the landowner.
71
Slide72(2) Liability and duty of care on agricultural land. (a) Any person regulated by this chapter who enters agricultural land shall do so in compliance with all federal, state, and local laws, rules, and regulations pertaining to premises security, agricultural protections, and other health and safety requirements in place on such land. (b) A landowner is not liable to any third party for civil or criminal acts or damages that result from the negligent or intentional conduct of any person regulated by this chapter on agricultural land. (c) If written notice is not delivered to the landowner or landowner's registered agent at least 3 business days prior to entry on an agricultural parcel containing more than 160 acres, the duty of care owed by the landowner to those regulated by this chapter is that due an undiscovered trespasser. (d) This subsection applies only to land classified as agricultural pursuant to s. 193.461.
72
Slide73Interest Rate: Subarticle 9-9 Interest Due on Delayed Payments.The Department will determine and pay any interest due the Contractor for delays in final payment in accordance with Section 337.141 of the Florida Statutes. Florida Statutes Section 337.141(3) For each day after 75 days, or 30 days after settlement of a claim, the department shall pay to the contractor interest at the rate set forth in s. 55.03.
73
Slide74Florida Statutes § 55.03. Judgments; rate of interest, generally.(1) On December 1, March 1, June 1, and September 1 of each year, the Chief Financial Officer shall set the rate of interest that shall be payable on judgments or decrees for the calendar quarter beginning January 1 and adjust the rate quarterly on April 1, July 1, and October 1 by averaging the discount rate of the Federal Reserve Bank of New York for the preceding 12 months, then adding 400 basis points to the averaged federal discount rate.
74
Slide75http://www.myfloridacfo.com/aadir/interest.htmInterest Rates Established Quarterly under Chapter 2011-169, Laws of Florida:
75
Slide7623 United States Code Annotated § 111. Agreements relating to use of and access to rights-of-way--Interstate System: (a) In general.-- All agreements between the Secretary and the State transportation department for the construction of projects on the Interstate System shall contain a clause providing that the State will not add any points of access to, or exit from, the project in addition to those approved by the Secretary in the plans for such project, without the prior approval of the Secretary.
Access to Interstate System
76
Slide7723 Code of Federal Regulation § 710.403(4–1–09 Edition):(c) Other use or occupancy. Subject to 23 U.S.C. 111, the temporary or permanent occupancy or use of right-of-way, including air space, for nonhighway purposes and the reservation of subsurface mineral rights within the boundaries of the rights-of-way of Federal- aid highways, may be approved by the Administrator, if he determines that such occupancy, use or reservation is in the public interest and will not impair the highway or interfere with the free and safe flow of traffic thereon.
77
Slide7823 Code of Federal Regulation § 1.23(c)(4-1-10 Edition)(a) The State Transportation Department must assure that all real property within the boundaries of a federally-aided facility is devoted exclusively to the purposes of that facility and is preserved free of all other public or private alternative uses, unless such alternative uses are permitted by Federal regulation or the FHWA. An alternative use must be consistent with the continued operation, maintenance, and safety of the facility, and such use shall not result in the exposure of the facility’s users or others to hazards.
78
Slide79Public Records Law
79
Slide80● Florida has a broad public records law. ● Access to Public Records is recognized in the Constitution of the State of Florida: ● Article I Section 24 of Florida’s Constitution states: “Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.”
80
Slide81Florida Statutes §119.01: ● It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.
81
Slide82● Standard Specification 3-9 (Public Records). “Allow public access to all documents, papers, letters, or other material subject to the provisions of Chapter 119, Florida Statutes, made or received by the Contractor in conjunction with this Contract. . . . . Failure to grant such public access will be grounds for immediate termination of this Contract by the Department pursuant to 8-9.1.”
82
Slide83● Exemptions: (d)1 “A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings.”
83
“Attorney Work Product”
Slide84(exemptions continued)● F.S. § 119.071(3)(b)(1): “Building plans, blueprints, schematic drawings, and diagrams, including draft, preliminary, and final formats, which depict the internal layout and structural elements of a building, arena, stadium, water treatment facility, or other structure owned or operated by an agency are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.”
84
Slide85● F.S. § 334.03(2): “Bridge” means a structure, including supports, erected over a depression or an obstruction, such as water or a highway or railway, and having a track or passageway for carrying traffic as defined in chapter 316 or other moving loads.
85
Slide86(exemptions continued)● Florida Statutes § 119.071(1)(b)(2):Sealed bids, proposals, or replies received by an agency pursuant to a competitive solicitation are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until such time as the agency provides notice of an intended decision or until 30 days after opening the bids, proposals, or final replies, whichever is earlier.
86
Slide87(exemptions continued) ● Florida Statutes § 119.071(1)(c): Any financial statement that an agency requires a prospective bidder to submit in order to prequalify for bidding or for responding to a proposal for a road or any other public works project is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
87
Slide8888
Slide89Document Retention Policy
FDOT’s Retention and Disposal Schedule:Where is it? ● DOT Infonet ● Registered SharePoint Sites (under “About DOT”) ● FA - Administration ● Support Services ● Records Management (under “Main Menu”). ● (a 135 page document)
89
Slide9090
Slide9191
Slide9292
Slide9393
Slide9494
Slide95Slide9696
Slide97Engineer of RecordChanges to the Plans
97
Slide98● All changes to the plans must be approved by the Engineer of Record (EOR) prior to proceeding with the change. ● By law, the EOR is liable for plan errors. ● Florida Statute §471.023(3) provides:“The fact that a licensed engineer practices through a business organization does not relieve the licensee from personal liability for negligence, misconduct, or wrongful acts committed by him or her. Partnerships and all partners shall be jointly and severally liable for the negligence, misconduct, or wrongful acts committed by their agents, employees, or partners while acting in a professional capacity.”
98
Slide99● Florida Statutes §471.025 requires all final drawings to be signed, dated, and sealed by the engineer.● Florida Statutes §471.025 says: “All final drawings, specifications, plans, reports, or documents prepared or issued by the licensee and being filed for public record and all final documents provided to the owner or the owner's representative shall be signed by the licensee, dated, and sealed with said seal.”● 61G15-23.001. Seals Acceptable to the Board.(1) Pursuant to Section 471.025, F.S., the Board hereby establishes as indicated below the forms of seals which are acceptable to the Board.
99
Slide100● (a) Any seal capable of leaving a permanent ink representation or other form of opaque and permanent impression which contains the information described herein is acceptable to the Board. (b) Said seal shall be a minimum of 1 7/8 inches in diameter and shall be of a design similar to those set forth below.
100
Slide101● Drawings, specifications, plans, reports, final documents, or documents prepared or issued by a licensee may be transmitted electronically and may be signed by the licensee, dated, and sealed electronically with said seal in accordance with ss. 668.001-668.006. (F.S.A. § 471.025). Also, FAC 61G15-23.003.● Florida Statutes §95.11(4)(a) provides: “An action for professional malpractice, other than medical malpractice, whether founded on contract or tort [must be filed within 2 years]; provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.
101
Slide102Slide103103
Slide104104
Slide105105
Slide106106
Slide107107
Slide108108
Slide109● Therefore, the statute of limitations for suing the EOR for NEGLIGENCE could occur during the project – prior to final acceptance. ● The statute of limitations for suing the EOR for BREACH OF CONTRACT is 4 years. (§95.11(3)(c)). ● Standard Specification 5-1.4.8 says:● Modifications for Construction: Where the Engineer allows the Contractor to make modifications to the permanent works for the purposes of expediting the Contractor’s chosen construction methods, the Contractor shall submit proposals to the Engineer of Record for review and approval prior to modifying the works.
109
Slide110● Engineer of Record is a defined term in the Standard Specifications. ● “The Professional Engineer or Engineering Firm registered in the State of Florida that develops the criteria and concept for the project, performs the analysis, and is responsible for the preparation of the Plans and Specifications. The Engineer of Record may be Departmental in-house staff or a consultant retained by the Department. The Contractor shall not employ the Engineer of Record as the Contractor’s Engineer of Record or as a Specialty Engineer.
110
Slide111● There is also a definition in the Standard Specifications for the “Contractor’s Engineer of Record.” ● Contractor’s Engineer of Record. “A Professional Engineer registered in the State of Florida, other than the Engineer of Record or his subcontracted consultant, who undertakes the design and drawing of components of the permanent structure as part of a redesign or Cost Savings Initiative Proposal, or for repair designs and details of the permanent work. The Contractor’s Engineer of Record may also serve as the Specialty Engineer. The Contractor’s Engineer of Record must be an employee of a pre-qualified firm. The firm shall be pre-qualified in accordance with the Rules of the Department of Transportation, Chapter 14-75. Any Corporation or Partnership offering engineering services must hold a Certificate of Authorization from the Florida Department of Business and Professional Regulation.”
111
Slide112● Florida Administrative Code 61G15-30.002:Engineer of Record. A Florida professional engineer who is in responsible charge for the preparation, signing, dating, sealing and issuing of any engineering document(s) for any engineering service or creative work.
112
Slide113● Standard Specification 4-3.9.3(4).“The Department may require that engineering analyses be performed by a prequalified consultant in the applicable class of work. Support all design changes that result from the Proposal with prints of drawings and computations signed and sealed by the Contractor’s Engineer of Record. Written documentation or drawings will be provided clearly delineating the responsibility of the Contractor’s Engineer of Record.”
113
Slide114114
375-020-010-d
Slide115
Slide116