Sophiapages9's blog

Leveraging LinkedIn Groups: Build Your Network!

LinkedIn Groups LinkedIn was created for business professionals to communicate within a trusted network. These discussions happen within LinkedIn groups and fuel most of the interaction across the whole site. LinkedIn Groups opens a world of possibilities and allows you to accomplish several business activities. Your personal profile allows you to join and display up [...]

Source: http://constructionmarketingblog.org/leveraging-linkedin-groups-build-your-network/

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California Court of Appeal Limits Duties Owed by Construction Managers to General Contractors

By John A. Yacovelle and Matthew W. Holder

In a recent case the California Court of Appeal confirmed in an unpublished decision that, when a construction manager is tasked with supervising and managing a general contractor, the construction manager does not owe a duty of care to the general contractor to prevent economic loss. The Court reasoned that imposing such a duty would subject the construction manager to an untenable conflict in loyalties. Appellate courts in other states are split on this issue. Ledcor Builders, Inc. v. Janez Development, LLC, 2010 WL 925876 (Mar. 16, 2010).
 

The plaintiff in the case was Ledcor Builders, Inc. ("Ledcor"), who served as the general contractor on a residential development project called Oceanside Terraces. Ledcor alleged that the construction manager was a company called Janez Development, LLC ("Janez"), and that Janez had been hired by the owner of the project to "manage, observe, advise, and supervisor [sic] Ledcor's work" and "ensure that it was properly, competently, and timely performed." According to Ledcor, Janez did a poor job as the construction manager, which resulted in various delays and cost overruns on the project (Janez denied these allegations). Ledcor and the owner of the development project made competing claims against each other as a result of these delays and cost overruns. In addition, Ledcor filed a lawsuit against Janez for negligence, seeking the same sum of money from Janez that Ledcor was also seeking from the owner.

In response to the lawsuit, Janez immediately attacked the complaint with a demurrer, arguing to the trial court that Ledcor's negligence claim failed as a matter of law because Janez could not owe a duty of care to Ledcor, since Janez's job (as alleged by Ledcor in the complaint) was to "manage, observe, advise, and supervisor [sic] Ledcor's work." Instead, Janez owed a duty of care to its principal, the owner of the project. A finding that Janez also owed a duty of care to Ledcor would subject Janez to an untenable conflict in loyalties. In making this argument, Janez relied heavily on the case of The Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595. In Ratcliff, the Court of Appeal had dismissed a similar negligence claim filed by an architect against a construction manager, because the construction manager was responsible for supervising the architect, and hence could only owe a duty of care to the owner of the construction project.

The trial court sustained Janez's demurrer without leave to amend, and dismissed Ledcor's complaint. The Court of Appeal affirmed the trial court's decision in a unanimous unpublished opinion. The Court of Appeal explained that parties who are not in privity with each other generally do not owe one another a duty of care to prevent economic loss (as opposed to damage to person or property). Such a duty of care to prevent economic loss only arises when there is a "special relationship" between the parties. Whether or not a such a "special relationship" exists is a matter of public policy, and depends on the weighing of various factors, including the extent to which the underlying transaction was intended to protect the plaintiff, the foreseeability of harm to the plaintiff, the moral blame attached to the defendant's conduct, and the policy of preventing future harm. By way of example, the seminal California case on the subject found that such a "special relationship" could exist between a lawyer who drafts a will for his client, and the intended beneficiary of the client's will, even though the lawyer and the intended beneficiary are not in privity with each other. Biakanja v. Irving (1958) 49 Cal.2d 647.

In this case, the Court of Appeal agreed entirely with Janez that a construction manager that is tasked by an owner with supervising a general contractor cannot also owe a duty of care to the general contractor to prevent economic loss. Such a rule would put the construction manager in an impossible position. The nature of construction projects is such that the interests of the owner and the general contractor will frequently be adverse to one another in disputes such as pricing and scheduling change orders. What is good for the owner may not be good for the general contractor, and vice versa. When the construction manager has been hired by the owner to serve the owner's interests and supervise and manage the general contractor, the construction manager owes its duty to the owner, not the general contractor. A construction manager cannot be expected to owe a duty of care to both the owner and the general contractor, any more than a lawyer can be expected to owe a duty of care to both sides in an adversarial transaction or piece of litigation.

It should also be noted that in response to Janez's arguments, Ledcor relied heavily on out-of-state authorities for the proposition that construction managers should be held liable to general contractors for economic losses. In particular, Ledcor argued that courts in Illinois, New York, and Tennessee have imposed such a rule. The Court of Appeal did not address any of Ledcor's arguments regarding out-of-state authority, instead finding that California law was settled on the subject. For what it is worth, courts in Georgia, Indiana, Washington, and Virginia have ruled the same as California courts by dismissing negligence claims for economic loss filed by contractors against construction managers. In addition, courts in Ohio, Wyoming, Utah, and Nevada have denied tort recovery between other participants in construction projects, absent privity of contract.

Authored By:
 
John Yacovelle, (858) 720-8934, is a partner in Sheppard Mullin's Del Mar office specializing in construction and commercial litigation. Matthew Holder, (858) 720-7411, is an associate in Sheppard Mullin's Del Mar office.

Source: http://feeds.lexblog.com/~r/ConstructionInfrastructureLawBlog/~3/MCmEvToz5zg/

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Leveraging LinkedIn Groups: Build Your Network!

LinkedIn Groups LinkedIn was created for business professionals to communicate within a trusted network. These discussions happen within LinkedIn groups and fuel most of the interaction across the whole site. LinkedIn Groups opens a world of possibilities and allows you to accomplish several business activities. Your personal profile allows you to join and display up [...]

Source: http://constructionmarketingblog.org/leveraging-linkedin-groups-build-your-network/

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Possible Extension of GAO's Protest Authority in the Works

By: Edward T. DeLisle

As part of the National Defense Authorization Act of 2008 (the 2008 Act), Congress provided the General Accounting Office (GAO) with the authority to hear protests involving certain task and delivery order contracts emanating from both defense and civilian agencies. At the time, this authority was limited to a period of three years, meaning that it was set to expire later this year. A few months ago, President Obama signed the National Defense Authorization Act of 2011 (the 2011 Act). As part of that Act, Congress partially extended the GAO’s authority. It permitted the GAO to continue hearing task and delivery order protests for contracts in excess of $10 million, but only for those contracts issued by Department of Defense agencies. For a reason not readily apparent, Congress failed to extend the GAO’s authority over civilian agencies. A bill has emerged in the Senate to address this omission.

As reported by Law360, Senate Bill 498, entitled the “Independent Task and Delivery Order Review Extension Act of 2011,” was recently introduced by Senate Homeland Security and Governmental Affairs Committee Chairman Joseph Lieberman, I-Conn. If passed, it would extend the GAO’s jurisdiction over task and delivery order protests relating to civilian agencies for an additional five and a half years, equaling the extension provided on DOD protests under the 2011 Act. This is an important development for government contractors. Many questions arose following passage of the 2011 Act. Why would Congress only extend the GAO’s authority over task and delivery orders on DOD work? It is possible that this was simply an oversight, though no one is quite sure. The legislative history is devoid of any discussion on the issue. Whatever the reason, if passed, S. 498 would maintain the status quo for five more years. We will continue to track this bill and report on its progress.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/RKjehXekCOw/

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Radiant Floor Heating Sustainability

A radiant floor heating system can be used with a couple different sources of heat sources.  The most popular is a hydronic source running off of a boiler but the most sustainable is a geothermal heat pump.  However, the application of a radiant floor heating system is debated as a sustainable heating option.  It has been experimented in with commercial and residential buildings, also in cold, moderate and warm climates.  The most popular debate is based on its use as retrofit system or in new construction.

Radiant floor heating systems are installed under subflooring and floor finishes such as hardwood or tile.  It is completely hidden, consisting of tubes embedded in a concrete or gypsum slab.  The tubes are filled with water or gas as necessary that is supplied by the heating source.  The space above the floor is heated by radiation and also convection through the floor.  An equivalent level of comfort can be achieved compared to air induced heat by setting the thermostat 4-8 degrees cooler. 

At first glance this may seem like a sustainable energy efficient system for moderate to cold climates.  However, it is not appropriate for many green homes because it contradicts and interferes with other systems and technologies.  A highly insulated home designed for energy efficiency would become too hot with a radiant floor system.  A person?s feet could heat up the slab through convection to warm up the room.  Also, any passive solar design could warm up the space additionally as well.  So in the case of a home demanding low heating loads, a radiant floor heating system can be considered over-engineered.  

Economically, the use of radiant floor systems may be more of an expense than needed.  The sources required to heat the system are expensive to install.  This is an unnecessary expense considering heating bills that only cost a few hundred dollars a year. 

So what about using a radiant floor system for an energy retrofit?  There are several aspects to consider when deciding to retrofit a home for sustainability and energy efficiency.    Will you upgrade the building envelope, energy systems, or a little bit of both.  This varies from home to home depending on location and existing circumstances.  One should have an energy audit completed on their home to determine specifics. 

The use of a radiant floor heating system can be a wise decision for many homes that see a fair balance of all four seasons and are not designed with highly efficient building envelopes.  Goals in a sustainable home retrofit should eliminate air leaks in the home such as walls, roofs, windows and doors.  If considering investing in radiant floor heating, it makes the most sense economically to fix the larger air leaks without investing too much money on completely new insulation or EIFS systems.  Finding a fair balance of minimal building envelope upgrades and a radiant floor heating system will provide optimal sustainable return on investment.

Source: http://www.sustainableconstructionblog.com/renovations/radiant-floor-heating-sustainability

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SBA Updates Set-Aside and Protest Procedures for Women-Owned Small Businesses

By: Edward T. DeLisle

On Thursday, January 12, 2012, the Small Business Administration issued an interim final rule, which alters the protest procedures pertaining to its Women-Owned Small Business (WOSB) Program. The changes serve two primary functions. First, when the SBA implemented the WOSB program by publishing a final rule in the Federal Register on October 7, 2010, it established set-aside thresholds of $5 million for contracts pertaining to manufacturing and $3 million for all other contracts. As part of the new interim rule, those thresholds have increased to $6.5 million and $4 million, respectively, to account for inflation.

Second, the changes ushered in as part of the interim rule, make the protest procedures for the WOSB Program consistent with the SBA’s other set-aside programs. For example, under the procedures that existed before issuance of the interim rule, if a contracting officer received a protest on a WOSB set-aside and, nonetheless wished to make an award, that contracting officer would have to issue a written determination concluding that doing so was required to prevent significant harm to the public interest. This requirement is inconsistent with the procedure outlined for other programs. Under the interim rule, a contracting officer may issue an award, despite a protest, if he or she makes the simple determination that doing so is necessary to protect the public interest.

As there have been few reported protests involving the WOSB Program, the new rules should not cause wide-spread confusion. If you are considering a protest, however, you are encouraged to read the changes and consult with a legal professional if you have any questions.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/omGz3QaWI4A/

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The Year 2010 In Review: Safety and Personal Injury Developments

This article is the eighth, and final, in a series summarizing construction law developments for 2010.

By Candace Matson, Harold Hamersmith & Helen Lauderdale

1. Tverberg v. Fillner Construction, Inc., 49 Cal. 4th 518 (June 2010)

The peculiar risk doctrine is a judicially created exception to the common law rule that a person hiring an independent contractor to perform inherently dangerous work is generally not liable to third parties for injuries resulting from the work. Courts initially used the peculiar risk doctrine to impose upon landowners vicarious liability for the acts of their independent contractors when certain third parties – innocent bystanders or neighboring property owners – were injured by the contractors' work. It was not until courts expanded the doctrine to include another category of third parties, the employees of the independent contractors, that the Supreme Court stepped in to curtail the exception. In Privette v. Superior Court, 5 Cal. 4th 689 (1993), the Supreme Court held that a hirer of an independent contractor is not vicariously liable to the employees of the independent contractor for injuries caused by risks inherent in the work the contractor was hired to perform.
 

In Tverberg, the Supreme Court seized the opportunity to resolve a conflict within the Courts of Appeal regarding whether the hirer of an independent contract is vicariously liable to the contractor for the contractor's own injuries resulting from a risk inherent in the work. The Court of Appeal in Michael v. Denbeste Transportation, Inc., 137 Cal. App. 4th 1082 (2005) held that the hirer was not liable to the independent contractor for the contractor's own injuries, while the Court of Appeal in Tverberg reached the opposite conclusion. The Tverberg court reasoned that the justification for the Privette decision was the availability of workers compensation for the injured employee. Because workers compensation would not always be available to the independent contractor, the Court of Appeal in Tverberg concluded that the independent contractor could seek recovery for injuries from the hirer.

The California Supreme Court reversed the Court of Appeal and barred the independent contractor's claim against the hirer for injuries caused by the inherently dangerous jobsite conditions. The Supreme Court explained that the outcome in Privette and other decisions disallowing claims was not determined by the availability of workers compensation to the injured person. Instead, the analysis depended on the delegated responsibility for maintaining jobsite safety. A hired independent contractor who is injured by risks inherent in the hired work, after having assumed responsibility for all safety precautions reasonably necessary to perform the work safely, is not an innocent third party deserving of compensation under the peculiar risk doctrine. The doctrine of peculiar risk does not apply when the injured independent contractor seeks to hold a hirer vicariously liable for injuries caused by risks inherent in the work over which the independent contractor has been granted control.

2. Miranda v. Bomel Construction Co., 187 Cal. App. 4th 1326 (4th Dist. July 2010)

The plaintiff worked in an office next to a vacant lot, which for several months was used as the location of an uncovered stockpile for dirt excavated from a nearby construction project. Plaintiff contracted Valley Fever and filed a complaint for negligence against the general contractor that created the stockpile. The plaintiff alleged the contractor failed to cover the stockpile or otherwise contain dust from it, and that fungal spores carrying the pathogens that caused Valley Fever were released from the excavated soil that the contractor had negligently stored. The contractor successfully moved for summary judgment on the ground the plaintiff could not establish that the contractor had proximately caused the plaintiff's injury.

The Court of Appeal affirmed. While plaintiff produced ample evidence that the fungal spores that cause Valley Fever are contained in dirt throughout Southern California, can become airborne, and can be inhaled after dirt is excavated, plaintiff had no evidence that dirt from the stockpile contained the fungal spores or was the source of plaintiff's exposure to the disease. While plaintiff could speculate that the dirt stockpile was the source of the fungal spores that caused him to contract Valley Fever, he could not produce evidence that the stockpile (rather than all the other sources of airborne dust in Southern California) was a substantial factor in causing the disease.

Authored By:

Candace L. Matson, (213) 617-5489, is a partner in Sheppard Mullin's Los Angeles office where she specializes in construction law.  Harold E. Hamersmith, (213) 617-4255, is a partner in the firm's Los Angeles office specializing in design and construction contracts, claims, and defects litigation, and public contract law.  Helen J. Lauderdale, (213) 617-4138, is a special counsel specializing in construction litigation in Sheppard Mullin's Los Angeles office.

 

Source: http://feeds.lexblog.com/~r/ConstructionInfrastructureLawBlog/~3/jLkjHd4fFBA/

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AECOM: A Leader in Sustainable Planning

Sustainability in construction is a concept that can be accepted into a project to various extents.  In addition, the sustainability of a building can only be taken as far as the site and surround area allow.  This means a building can have all of the right energy efficient systems, building envelopes, and green materials but still may not provide a sustainable lifestyle or community to the people living, working, or visiting these buildings. 

This is where AECOM makes a difference in the sustainable construction industry.  This international corporation has a design and planning division that completes urban renewal and revitalization projects all over the world.  This division of the company was initiated in 2005 when AECOM?s program and construction management capabilities merged with the planning expertise of EDAW.  Recently, their focus on sustainability has landed them the job of creating Legacy Masterplan Framework in East London for the 2012 Olympic Games. 

Their responsibilities include designing an urban renewal plan that will support a sustainable infrastructure for the buildings in the Lower Leah Valley of London.  The plan for a legacy of the Olympics includes planning that extends years beyond the games to turn the land into a sustainable and economically revitalized community. 

AECOM expects their masterplan will deliver a final product or end result by 2040.  Perhaps this is the epitome of sustainability, when a project goes to the extent of rebuilding a five boroughs using interdisciplinary collaboration of several teams focusing on sustainability.

Other AECOM planning projects include developing solutions for infrastructure deficiencies, economic regeneration projects, and renewing city centers to meet cultural needs.  All of these projects require multidisciplinary teams and decades of scheduled work.  AECOM assesses the sustainable return on investment when designing a plan and sees that it is achieved with the final product.

Source: http://www.sustainableconstructionblog.com/construction/aecom-a-leader-in-sustainable-planning

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Will Agencies Be Penalized for Missing Their Small Business Goals?

 By: Edward T. DeLisle

On January 18, 2012, Representative Bill Owens (D.-N.Y.) introduced a bill entitled, “The Small Business Growth and Federal Accountability Act” (H.R. 3779).  The Act is designed to “hold accountable Federal departments and agencies that fail to meet goals relating to the participation of small business concerns.” In order to achieve this goal, the Act goes on to state that “[if] a Federal department of agency does not meet a covered goal with respect to a fiscal year, that department or agency, in the succeeding fiscal year, may not expend for the procurement of goods or services an amount that is greater than 90 percent of the amount expended for the procurement of goods or services…”

If enacted, the bill would essentially penalize a federal department or agency by slashing its budget by 10% if that department or agency fails to hit its established small business procurement goals. As it currently stands, federal departments and agencies are required to expend 23% of their annual procurement dollars on small business awards. The problem, however, is that there is no penalty if an agency fails to meet this goal. If this bill becomes law that would certainly change. The question becomes: How would federal agencies react to it? The bill does state that “[t]o meet a covered goal, the head of a Federal department or agency may give preference to a small business concern when procuring goods or services.” While it does not define the type of preference that may be given, this concept opens the door to any number of possibilities that could impact the procurement process. For example, will a system emerge during the bill review process that is akin to the 10% price preference currently in existence for the HUBZone program?  We will simply have to wait and see.  The bill is currently being reviewed by the House Small Business Committee.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/LAi03nBLXQo/

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Public Private Partnership Upheld For Construction of Presidio Parkway

By Edward Lozowicki and Robyn Christo

In 2009, the California legislature amended Section 143 of the Streets and Highways Code and greatly expanded availability of the public-private partnership ("P3") as a mechanism to finance transportation infrastructure projects. In early 2010, under the authority of the newly amended Section 143, the California Department of Transportation ("CalTrans") began to implement part of the Presidio Parkway Project ("Project") as a P3.
 

The two-phase Project involves replacement of the 75-year-old, seismically-deficient southern approach to the Golden Gate Bridge (also known as Doyle Drive). Phase I (which is currently underway) will be delivered via a traditional design-bid-build model. Phase II, however, is set to be financed and constructed through a P3 contract between CalTrans and its selected bidder, Golden Link Partners.

The process of implementing Phase II as a P3 was attacked on November 2, 2010, when Professional Engineers in California Government (“PECG”) (a union representing state-employed engineers and other professionals) challenged the P3 as violating various provisions of Section 143.

PECG’s combined petition for writ of mandate and complaint for declaratory and injunctive relief was dismissed at the trial level and PECG appealed. The appeal was expedited (so as not to delay the Project or interfere with CalTrans’ negotiated rights of entry on surrounding federal land) and, on August 8, 2011, the Court issued a succinct opinion, in which it rejected all three of PECG’s arguments employing basic canons of statutory construction. Professional Engineers in California Government v. Department of Transportation (2011) 198 Cal.App.4th 17.

PECG first argued that the P3 was invalid because CalTrans was not acting as the “responsible agency” as required by Section 143(f)(1)(A). PECG argued that because CalTrans did not actually perform preliminary (i.e., pre-P3) engineering work on the Project (consultants did) it could not be the responsible agency. The Court employed a “common sense” reading of the statute and determined that CalTrans was only required to be responsible for the work, not to actually perform the work. Furthermore, the Court found it “unreasonable to invalidate an earlier phase of a lengthy, ongoing project because of a change in the law meant to enhance and encourage such projects.”

PECG next argued that the Project did not qualify as a P3 because it would rehabilitate or reconstruct an existing facility and not "supplement an existing facility" as required by Section 143(a)(6). The Court agreed that Section 143 does require a project to supplement existing facilities. Because the Project involves a series of supplemental new improvements to existing facilities, however, it meets this requirement “under any standard definition.”

Finally, PECG argued that in order to be a valid P3, the Project must “require” funding through tolls and user fees. The argument stemmed from language found in Section 143(j)(1), which provides that P3 agreements “shall authorize” the imposition of tolls and user fees and “shall require” that such authorized fees be applied to payment of various costs. The Court quickly rejected this argument, finding that “the clause providing [that] P3 agreements ‘shall require’ [] any toll revenues be used to defray certain costs . . . falls short of requiring the use of tolls and user fees as a necessary funding element or the sole funding source in every P3.”

Comment: This is the first appellate case construing Senate Bill 2X4 (2010) which greatly expanded authority for the state of California and regional transportation agencies to utilize P3 agreements. Most significant is the Court's holding that tolls or user fees are not required. This opens the door for public agencies to use creative financing techniques such as availability payments or lease provisions to pay the P3 entity for the project's costs.

Authored By:
 
Edward Lozowicki and Robyn Christo

Source: http://feeds.lexblog.com/~r/ConstructionInfrastructureLawBlog/~3/W30qC5Etw84/

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Flashing A Deck Ledger Board Properly

Source: http://feedproxy.google.com/~r/feedburner/SETh/~3/Fq1TAlMb6dY/

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Flashing A Deck Ledger Board Properly

Source: http://feedproxy.google.com/~r/feedburner/SETh/~3/Fq1TAlMb6dY/

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Practical Marketing Considerations for Construction Brands FREE Webcast

Practical Marketing Considerations for Construction Brands Free Webcast – Tuesday, May 15, 2012 A webcast from the Construction Marketing Association (CMA) will address the three very important aspects of marketing in the construction industry:  hiring marketing talent, selecting marketing partners, and improving teamwork between marketing and sales departments. The free webcast for members and non-members [...]

Source: http://constructionmarketingblog.org/practical-marketing-considerations-for-construction-brands-free-webcast/

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Demand Response for Sustainable Infrastructure

photo source: nj.com

--Our current energy grid suffers from a lack of communication and shared information.  Demand response is one solution that is transforming the energy industry.

For the past few decades, our nation's infrastructure has struggled to keep up with the exponentially rising energy demand.  The rise in demand is mostly due to our growing dependence on technology, and as businesses turn to new technology, they rely on the energy grid to support their business more than anything.  Energy is something that consumers generally take for granted, but since the blackouts in 2003 we have realized how economically devastating loss of power can be.

The object of demand response is to reduce the demand from the grid during peak hours.  Peak demand refers to the hours of the day when most people are home from work, cooking dinner, or watching TV.  In the United States, peak demand would usually be between the hours of 6 pm and 9 pm.  Demand response groups take this into consideration, and gather regional consumption data with the support of larger corporations that conduct energy intensive operations.  The idea is for these companies to coordinate and shift operations when possible to lower peak demands.  Energy costs are higher when the demand peaks; so when power plants don't have to work as hard they are not only saving carbon emissions, but the consumers are also saving money.

Residential demand response groups work a little bit differently.  Overall, promoting awareness of when peak demand is and that reducing non-essential power loads during peak hours can save money is the focus of most groups and services.  More effectively, this idea has been churning into technological advances in smart grid technology.  A smart grid refers to the communication and sharing of real-time information between the residential and commercial consumers and the utilities that provide the power.  In general, the current grid tells the utilities how much power it produces at any given moment; which dictates the price of energy along with other involved operational costs. 

Essentially, a smart grid would consist of networked sensors at the power plant's substations providing power to certain sub regions and at each consumer's utility meter.  When the smart grid knows who is consuming energy where and when, everyone benefits.  The utility can adjust output to sub regions that need more power while borrowing it from others that do not need as much at that time without increasing overall production.  The consumers, both residential and commercial, can access this information from the internet and other networked smart grid tools in order to respond accordingly; a business shifting operations, and a consumer understanding when to run the dishwasher or turn their computer off if their not using it.  This is the culmination of what demand response groups are trying to orchestrate, and the benefits are universally invaluable.

It will be interesting to see the smart grid industry develop and how many other industries may need to adjust their product development to be compatible with the smart grid.

Source: http://www.sustainableconstructionblog.com/news/demand-response-for-sustainable-infrastructure

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Sustainable Construction Photos at the 2012 Olympics

As London prepares to host the Summer Olympic Games of 2012, recent construction photos share the progress being made in this sustainable project.  This sustainable planning and construction project will develop an area that is economically depressed to provide for the community for many decades after the 2012 Olympic Games are over.  Photos courtesy of london2012.co.uk

Velo Park

Aquatic Center

Olympic Village

Source: http://www.sustainableconstructionblog.com/construction/sustainable-construction-photos-at-the-2012-olympics

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Trending Sustainable Senior Living Communities

--Recent economic and social trends support the opportunities that sustainable communities offer more than ever.

Traditionally, sustainable communities have been the business of many European cultures; and more recently, popular among a certain population of the west coast.  However, there is a growing demographic in the United States that could greatly benefit from the unique opportunities offered by sustainable communities. 

The 'Baby Boomer' generation is coming of the age of retirement, and many are finding it difficult to retire when they thought they could.  This is due to many reasons pertaining to reductions in social security available, and the suffering stock market in this recession.  But maybe most detrimental to many Baby Boomers' retirement plans is the suffering real estate market.  In many parts of the nation sale prices of homes are at an all-time low when inflation is considered.  People of age to retire are forced to sell their homes well below what their value 8 years ago. And it is for these reasons that an alternative retirement lifestyle must be considered. 

An alternative retirement lifestyle is not a compromise on quality, but only means that smart and innovative decisions must be made in order to achieve a desired retirement.  Sustainable senior living communities consider the social and economic advantages of using high performance building techniques, aspects of cohousing, and renewable energy sources. 

A combination of high performance or superinsulated building techniques creates a sound foundation for any sustainable building or development.  And while off grid utilities are ideal, they are often unpractical, especially when trying to offer active seniors a certain luxuries in life.  However, the combination of lowered energy loads by use of superior building construction, and the introduction of an alternative energy source can become very economical; offering the communities' inhabitants a lifetime of low cost energy that is less susceptible to rising energy costs. 

The idea of shared spaces and commodities is strong principal adopted from cohousing that is used by innovative sustainable communities.  In many cases, active seniors will be downsizing from larger family-sized homes to smaller cottages or residential units in sustainable communities.  This involves the difficult task of getting rid of many assets you own and love.  Fortunately, sustainable communities provide the economic advantage and convenience of allowing you to possess all these same amenities without the cost or burden of moving and storing them.  Examples of shared spaces and commodities would be a wood shop or sewing room, possibly a shed to store tools and equipment for the community gardens, and common areas to enjoy the sense of community and family.

When economy of scale is considered in all of these amenities, one can start to see the advantages of sustainable communities for active senior living.  Developers can offer low cost housing with the freedom to have all of the things you used to and a priceless like-minded community of people to share your time with. 

 

Source: http://www.sustainableconstructionblog.com/news/trending-sustainable-senior-living-communities

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Sustainable Construction Photos at the 2012 Olympics

As London prepares to host the Summer Olympic Games of 2012, recent construction photos share the progress being made in this sustainable project.  This sustainable planning and construction project will develop an area that is economically depressed to provide for the community for many decades after the 2012 Olympic Games are over.  Photos courtesy of london2012.co.uk

Velo Park

Aquatic Center

Olympic Village

Source: http://www.sustainableconstructionblog.com/construction/sustainable-construction-photos-at-the-2012-olympics

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Home Energy Audit Tools

   

Residential energy audits are the first step in cutting energy costs. Before eliminating energy loss in your home you must first identify where your house is losing the most energy. Using this information you are more capable of effectively cutting energy costs without wasting time and money on projects that may not produce as valuable results.

Another way to save money and increase the return on investment for your energy efficiency projects is to perform the energy audit yourself. While a professional home energy audit provides a thorough analysis of all energy loss in a home, a DIY energy audit can be just as effective if done correctly. These tools can be used to perform your DIY energy audit at very little cost compared to a professional audit.

The Black & Decker TLD100 Thermal Leak Detector is very easy to use and is useful to perform seasonal energy audits. The thermal leak detector is a dramatically cheaper alternative to a thermo imaging camera used by professionals. Thermo imaging cameras start around $1,500 dollars and take radiometric images to locate air leaks. The Black & Decker TLD100 Thermal Leak Detector detector is a similar looking device that retails for $64 and provides the same results. The thermal leak detector works using an infrared thermometer to take a thermal measurement at different points along a building envelope. By reporting the temperature at different points along a wall the user can locate hidden energy leaks. It is very useful in revealing leaky windows, doors, uninsulated walls, pipes, ducts and more.

When performing a DIY energy audit using this tool, you can identify which walls to insulate and which windows and doors to replace. This allows you to maximize return by only replacing windows and doors that leak energy.

Another very useful tool in performing a home energy audit is a Kilowatt meter. The EZ Electricity Usage Monitor helps homeowners recognize which appliances are drawing the most power on any given day. As the cost of electricity increases it is more beneficial than ever to cut back on electric usage.

More often than not homeowners don?t realize what really makes a difference on your energy bill. Typically, a homeowner?s first action is to turn off the lights when not in use. While this is a good idea, it is not necessarily the most beneficial. More often than not appliances, computers, cable boxes, and other electronics that are constantly plugged in draw the most power throughout the day. Whatever the cause, the KILL A WATT EZ Electricity Usage Monitor will help you find what is consuming the most electricity in your home and help you cut the cost of your monthly utilities.

Source: http://www.sustainableconstructionblog.com/renovations/home-energy-audit-tools

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Possible Extension of GAO's Protest Authority in the Works

By: Edward T. DeLisle

As part of the National Defense Authorization Act of 2008 (the 2008 Act), Congress provided the General Accounting Office (GAO) with the authority to hear protests involving certain task and delivery order contracts emanating from both defense and civilian agencies. At the time, this authority was limited to a period of three years, meaning that it was set to expire later this year. A few months ago, President Obama signed the National Defense Authorization Act of 2011 (the 2011 Act). As part of that Act, Congress partially extended the GAO’s authority. It permitted the GAO to continue hearing task and delivery order protests for contracts in excess of $10 million, but only for those contracts issued by Department of Defense agencies. For a reason not readily apparent, Congress failed to extend the GAO’s authority over civilian agencies. A bill has emerged in the Senate to address this omission.

As reported by Law360, Senate Bill 498, entitled the “Independent Task and Delivery Order Review Extension Act of 2011,” was recently introduced by Senate Homeland Security and Governmental Affairs Committee Chairman Joseph Lieberman, I-Conn. If passed, it would extend the GAO’s jurisdiction over task and delivery order protests relating to civilian agencies for an additional five and a half years, equaling the extension provided on DOD protests under the 2011 Act. This is an important development for government contractors. Many questions arose following passage of the 2011 Act. Why would Congress only extend the GAO’s authority over task and delivery orders on DOD work? It is possible that this was simply an oversight, though no one is quite sure. The legislative history is devoid of any discussion on the issue. Whatever the reason, if passed, S. 498 would maintain the status quo for five more years. We will continue to track this bill and report on its progress.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/RKjehXekCOw/

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Possible Extension of GAO's Protest Authority in the Works

By: Edward T. DeLisle

As part of the National Defense Authorization Act of 2008 (the 2008 Act), Congress provided the General Accounting Office (GAO) with the authority to hear protests involving certain task and delivery order contracts emanating from both defense and civilian agencies. At the time, this authority was limited to a period of three years, meaning that it was set to expire later this year. A few months ago, President Obama signed the National Defense Authorization Act of 2011 (the 2011 Act). As part of that Act, Congress partially extended the GAO’s authority. It permitted the GAO to continue hearing task and delivery order protests for contracts in excess of $10 million, but only for those contracts issued by Department of Defense agencies. For a reason not readily apparent, Congress failed to extend the GAO’s authority over civilian agencies. A bill has emerged in the Senate to address this omission.

As reported by Law360, Senate Bill 498, entitled the “Independent Task and Delivery Order Review Extension Act of 2011,” was recently introduced by Senate Homeland Security and Governmental Affairs Committee Chairman Joseph Lieberman, I-Conn. If passed, it would extend the GAO’s jurisdiction over task and delivery order protests relating to civilian agencies for an additional five and a half years, equaling the extension provided on DOD protests under the 2011 Act. This is an important development for government contractors. Many questions arose following passage of the 2011 Act. Why would Congress only extend the GAO’s authority over task and delivery orders on DOD work? It is possible that this was simply an oversight, though no one is quite sure. The legislative history is devoid of any discussion on the issue. Whatever the reason, if passed, S. 498 would maintain the status quo for five more years. We will continue to track this bill and report on its progress.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/RKjehXekCOw/

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Commercial Warehouse Energy Retrofits

One type of building that does not often get mentioned in energy conservation discussion is commercial warehouses and storage facilities.  In order to conserve energy in these spaces it is important to identify defficiencies.  These buildings are unique in that the inhabitants do not desire typical interior temperatures, however, some products and materials held in warehouses require to be stored at a certain climate.  For this reason heating and cooling loads can still be a large contributor to a warehouse's energy consumption.  In most cases, however, lighting often leads to a large portion of energy consumption.

To correct these energy deficiencies in warehouses and cut back on energy consumption, several things can be done.  Michael Koploy, manager of Warehouse Management Systems Guide website, recently took some time to meet with a few professionals on the topic to compile a list of energy retrofits that can help warehouse managers have a more energy efficient facility and save more money.  The list of 9 Energy Retrofits to Reduce Energy Consumption provides cost effective solutions to acheive many benefits.

A few energy retrofit ideas from the article include:

Installing solar light tubes to help natural light effectively penetrate into spaces on the warehouse floor.

Replacing halogen and incandescent lighting with compact fluorescent and LED lighting.  These lights are cool buring, consume less energy and last longer, while offering superior light levels.

Controlling these lights with automatic occupancy sensor switches will help save more energy by automatically turning lights on and off by detecting motion or lack of motion on a certain area of the warehouse floor.

Using a white roof membrane to help reflect light that will otherwise be absorbed by a traditional dark roof and contribute to heating loads.

Deploy destratification fans to help keep warm air down in colder climates will help cut back on heating bills.

And of course, insulating a building with spray in foam or batt insulation is a common energy retrofit for any structure with conditioned spaces.

Source: http://www.sustainableconstructionblog.com/construction/commercial-warehouse-energy-retrofits

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Home Depot Kids Workshop ? Build #20 Racecar

Source: http://feedproxy.google.com/~r/feedburner/SETh/~3/XFPyfuq_Fp4/

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Developers Must Pay Prevailing Wages for Privately Financed Public Infrastructure

By Bram Hanono and Greg Woodard

California Labor Code sections 1720 et seq. (the Prevailing Wage Law) ("PWL") require employers (including developers and contractors) engaged in public works projects to pay the prevailing wage to their employees if the project is "paid for in whole or in part out of public funds." The Second Appellate District Court of Appeal recently ruled that private developers must pay prevailing wages for the construction of all public improvements in connection with a development project if public funds are used to finance any part of the public improvements, even if the remaining public improvements are paid for with private funds. The California Supreme Court declined to hear the developer's appeal. Therefore, developers and contractors could face increased project costs as a result of this case.
 

Background & Summary

In Azusa Land Partners v. Department of Industrial Relations, 191 Cal.App.4th 1 (2010), the developer proposed a master planned 500+ acre development that included up to 1,200 homes, 50,000 square feet of commercial, and public infrastructure and improvements. To obtain the City of Azusa's approval, the developer agreed to public infrastructure and improvement work, including construction of a public school and park, freight under-crossings, sanitation district facilities, and street, bridge, storm drain, sewer, water, utilities, park and landscaping improvements. The public improvements were to be funded by Mello-Roos bonds which were approved for indebtedness of up to $120 million to be incurred by the Community Facilities District ("CFD"). The developer was required to construct the public improvements even if the actual costs exceeded the amount of bond funds sold by the CFD for the improvements. The total cost of the public improvements was approximately $146 million but the CFD only sold $71 million in bonds, leaving the developer on the hook for the remaining $75 million.

A third party requested an inquiry into whether the entire project was a "public work" subject to the PWL. "Public works" is broadly defined by the PWL and includes work "paid for in whole or in part out of public funds." The Department of Industrial Relations (the "Department"), which was charged with the review, determined that even though the project was only partly funded with public funds, the entire project was nevertheless a public work and subject to the PWL. However, the Department also found prevailing wage did not have to be paid on the entire project because the project met an exemption in the PWL (Labor Code section 1720(c)(2)) that required prevailing wage only for those public infrastructure improvements in the project required as a condition of regulatory approval. Accordingly, the developer had to pay prevailing wage for all those public improvements even though some were in fact privately funded due to the shortfall in CFD funding. The developer appealed, but the Department upheld its initial determination, meaning prevailing wage had to be paid for all of the public improvements.

The developer filed a petition for writ of mandate in superior court and the trial court denied the petition. On appeal, the developer argued it should only be required to pay prevailing wage for the public improvements actually financed with the Mello-Roos bond proceeds and not for privately funded infrastructure improvements for which no bond proceeds were received – the developer was seeking a more narrow interpretation under section 1720(c)(2) of the PWL.

The Court of Appeal disagreed with the developer. First, the court held that under the PWL, the entire project was a "public work" because the project was funded in part through public funds. Second, the court held that under the PWL, the Mello-Roos bond proceeds constituted public funds. Finally, the court rejected the developer's argument that even if the project was subject to the PWL, it should only be required to pay prevailing wage for the public improvements that were built with Mello-Roos bonds, and not any public improvements constructed at private expense. Instead, the Court of Appeal agreed with the Department and the trial court, interpreting the PWL to apply to all public improvements, regardless of whether or not they were paid for with Mello-Roos bonds.

On March 2, 2011, the California Supreme Court declined to hear the developer's appeal. As a result, the developer will be required to pay prevailing wage on the entire $146 million cost for the project's public improvements, including the $75 million in public improvements which it privately financed.

Comment

Going forward, developers and contractors may be required to pay prevailing wage on the entire build-out of public improvements, even if the development is mostly privately financed and privately owned. This means each party should carefully determine in their development and construction contracts whether prevailing wage rules apply and which party will pay the increased costs.

Authored By:

Bram Hanono & Gregory E. Woodard

Source: http://feeds.lexblog.com/~r/ConstructionInfrastructureLawBlog/~3/PO8gCqFoawE/

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5 questions with ZamRay.com

ZamRay.com is quickly becoming a popular name within the sustainable construction industry and for good reason.  ZamRay offers unique services in one convenient location that can effectively connect the construction industry.  While the main purpose of this internet start up is to allow its users to buy and sell surplus and reclaimed material, there are many other components of the website that make it a useful source to improve construction projects across the nation.

Earlier this week I had a chance to converse with the founder and managing director of ZamRay, Kurt Fisher.  The following Email interview with Kurt reveals a unique and in-depth outlook of what ZamRay has accomplished and their plans for the future.

Interview with Kurt Fisher, founder/managing director of Zamray.com

Since its soft launch earlier this year, many additions have been made to ZamRay.com.  What aspect of ?connecting the construction industry? do you pride yourself on the most?  In other words, which feature of the website do you feel is most powerful in connecting the industry?

The ability for contractors and distributors to finally have a reputable venue to buy and sell their surplus materials has and always be our cornerstone service.  It?s what makes us unique.

Our discussion forum and articles sections where you can choose to write or post something in over 30 industry-specific categories is going to be very popular.

Just the fact there is something on ZamRay for everyone on ZamRay, whether you are the CEO or a large General contractor or the smallest of tradesmen working with one truck.
Finally, I think our social media connectivity is proving to be very popular.

It is not hard to see how ZamRay offers services to the construction industry that can greatly contribute to sustainable construction projects.  In addition to the support of the Sustainable Construction Blog, have you made any connections to other affiliations in the sustainable construction industry?

Yes!  We are now members of the USGBC and we are in the process of getting heavily involved with the local USGBC chapter in our hometown of Denver, CO.   We are also working on trying to figure out a way for when building owners use ZamRay for buying or selling recycled materials in can count towards LEED certification points or credits.
 
ZamRay has been referred to as the Craigslist of the construction industry.  In what ways does ZamRay make it easier and more practical for contractors to buy and sell surplus material?

Well for one it says a lot when we are referred to as the Craig?s List of the industry!

1.  Simplicity ? Anything we put on our site has to be simple for people to use.  Our buy and sell functionality was designed with that in mind where it is extremely easy to place and view ads

2.  Search capabilities ? The key to our buy/sell process is how simple and granular you can get on searching for material.  Especially in the electrical industry, where there are over 10,000 parts & pieces and being able to search by a part#, size, location is absolutely huge.

3.  It?s practical because there is an obvious void in the buy/sell.  Having been on both the contracting side and distribution side of the industry I experienced first-hand all the left over material that goes to waste.  If you can buy or sell something for 40 to 60 cents on the dollar why wouldn?t you.


I see ZamRay.com is becoming very popular and has accumulated quite a few votes for the CONEXPO?s most innovative product/technology.  Are there any new updates to the website that will be revealed at the show in Las Vegas next week?

We were hoping to have our Mobile App on I-Pad and I-Phone ready to launch but we are not quite there yet.  We have a new fun & interactive section to our website that we just implemented.  Other than that we are just going to promote how successful ZamRay has been since its inception January 6th.   There aren?t many websites that can say they have had 70,000 page views in their first 9 weeks.

-----------------------------------

A big thanks to Kurt Fisher and our friends at ZamRay for taking the time to conduct this interview.  Their work is appreciated in the sustainable construction industry and we wish with them the best of luck in their continued endeavors.  Please support ZamRay.com by visiting their website and signing up as a registered user.

Source: http://www.sustainableconstructionblog.com/news/5-questions-with-zamray-com

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The Year 2010 In Review: Design And Construction Defects Litigation

This article is the first in a series summarizing construction law developments for 2010.

By Candace Matson, Harold Hamersmith & Helen Lauderdale

1. Centex Homes v. Financial Pacific Life Insurance Co., 2010 U.S. Dist. LEXIS 1995 (E.D. Cal. 2010)
 

After settling numerous homeowners' construction defect claims – and more than ten years after the homes were substantially completed – a home developer brought suit against one of the concrete fabrication subcontractors for the development seeking indemnity for amounts paid to the homeowners, as well as for damages for breach of the subcontractor's duties to procure specific insurance and to defend the developer against the homeowners' claims. The subcontractor brought a motion for summary adjudication on the ground the developer's claims were barred by the ten year statute of repose contained in Code of Civil Procedure Section 337.15.
 

The District Court agreed the developer's claim for indemnity was barred by Section 337.15. And it held that because the damages recoverable for breach of the subcontractor's duty to purchase insurance are identical to the damages recoverable through the developer's indemnity claim, the breach of duty to procure insurance claim also was time-barred. The District Court, however, allowed the claim for breach of the duty to defend to proceed. The categories of losses associated with such a claim (attorneys' fees and other defense costs) are distinct from the damages recoverable through claims governed by Section 337.15 (latent deficiency in the design and construction of the homes and injury to property arising out of the latent deficiencies).
 

2. UDC – Universal Development v. CH2M Hill, 181 Cal. App. 4th 10 (6th Dist. Jan. 2010)

Indemnification clauses in construction agreements often state that one party to the agreement – the "indemnitor" – will defend and indemnify the other party from particular types of claims. Of course, having a contract right to a defense is not the same as actually receiving a defense. Any indemnitor attempting to avoid paying for defense costs can simply deny the tender of defense with the hope that when the underlying claim is resolved the defense obligations will be forgotten. In the past, when parties entitled to a defense – the "indemnitees" – had long memories and pressed to recover defense costs, indemnitors attempted to justify denying the tender by claiming their defense obligations coincided with their indemnity obligations and neither arose until a final determination was made that the underlying claim was one for which indemnity was owed.

The California Supreme Court rejected this justification for denying an immediate defense obligation in Crawford v. Weather Shield, 44 Cal. 4th 541 (2008). And in UDC – Universal Development vs. CH2M Hill, 181 Cal. App. 4th 10 (2010), the Sixth District Court of Appeal followed the Supreme Court's lead, repeating that the right to a defense is separate and distinct from the right to indemnity under a typical indemnity clause, the right arises immediately upon assertion of a claim, and the right exists regardless of whether the claim is ultimately proven.

UDC was the developer of a condominium project. It contracted with CH2M Hill to provide engineering and environmental planning services for the project. Their agreement called for CH2M Hill to indemnify UDC for all claims "that arise out of or are in any way connected with any negligent act or omission" of CH2M Hill. It also required CH2M Hill to provide UDC with a defense to any action brought on any claim covered by the indemnity obligation. After the project was completed, the homeowners' association filed suit against UDC for defective conditions at the project due in part to negligent planning and design of open spaces and common areas. The complaint did not attribute negligence to any particular subcontractor but instead contained general allegations of deficient services by architects, engineers, and consultants.

UDC filed a cross-complaint for equitable, comparative, and express contractual indemnity against numerous subcontractors on the project, including CH2M Hill. It also tendered the defense of the homeowners' association's lawsuit to all cross-defendants. CH2M Hill declined the tender. UDC succeeded in settling all of the cross-claims except those asserted against CH2M Hill.

At trial, the parties agreed the jury would decide the factual issues of negligence and breach of contract and the court thereafter would apply the contract's indemnity provisions. The jury concluded CH2M Hill had not been negligent and had not breached its contract with UDC. With these favorable conclusions in hand, CH2M Hill argued to both the trial and appellate courts that it had no duty to defend UDC. According to CH2M Hill, such a duty could only arise after a finding that CH2M Hill had been negligent.

Both the trial and appellate courts rejected CH2M Hill's argument. Instead, they ruled that a duty to defend is separate from a duty to indemnify, and the duty to defend necessarily occurs before the duty to indemnify arises and before any negligence determination is made. CH2M Hill also unsuccessfully urged the courts that it owed no duty to defend the developer because the homeowners' association's complaint did not specifically allege that CH2M Hill was negligent. The appellate court concluded that the developer's right to a defense did not turn on whether the plaintiff named a particular subcontractor in its complaint. The plaintiff's general allegations of deficient design services by engineers for the project, together with the developer's cross-complaint for indemnity attributing responsibility to CH2M Hill for the plaintiff's damages, were sufficient to trigger CH2M Hill's duty to defend.

The UDC and Crawford decisions eliminate any lingering uncertainty about when the obligation to provide a defense arises: under a typically worded indemnity clause, the duty to defend requires immediate action by an indemnitor after the defense of a claim is tendered. But whether these decisions will alter real world conduct by indemnitors and result in their taking an active responsibility for the defense of claims from the outset is far less certain.
 

3. Great Lakes Construction, Inc. v. Jim Burman, et al., 186 Cal. App. 4th 1347 (3d Dist. July 2010)
 

After a homeowner posted unfavorable comments about two contractors on the internet, the contractors sued the homeowner for libel. The contractors' complaint prompted a predictable series of pleadings, starting with the homeowner's cross-complaint for breach of contract and negligence against the contractors and designers for substandard work, followed by the contractors' cross-complaint against one of its subcontractors for breach of contract and indemnity. In the ensuing litigation, the homeowner and subcontractor were represented by the same attorney. The contractors successfully moved to disqualify the lawyer for the homeowner and subcontractor based on the conflict that existed in the lawyer's joint representation of them. The Court of Appeal reversed. No legally protected interest of the contractors was violated by the joint representation of their opponents by a single lawyer; the lawyer owed the contractors no duty of loyalty. Therefore the contractors did not have standing to seek the lawyer's disqualification.

Authored By:

Candace L. Matson is a partner in Sheppard Mullin's Los Angeles office where she specializes in construction law.  Harold E. Hamersmith is a partner in the firm's Los Angeles office specializing in design and construction contracts, claims, and defects litigation, and public contract law.  Helen J. Lauderdale is a special counsel specializing in construction litigation in Sheppard Mullin's Los Angeles office.

Source: http://feeds.lexblog.com/~r/ConstructionInfrastructureLawBlog/~3/dR4jSnA0bCA/

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Understanding Contractor Bonds

Guest Post By: Kristen Bradley

The U.S. boasts a huge contract bond market as federal, state and local government agencies all utilize contract bond law to regulate professionals who work in the construction industry. Inevitably, some contracting firms find themselves unable to qualify for these bonds because they do not have the financial stability needed to back them up. This denies them access to working on publicly funded construction projects.

Contractors who cannot find a surety provider that's willing to issue them necessary bonds might complain that contract bond requirements are too strict and difficult to fulfill. Their purpose, however, is to deter unqualified and financially unstable contractors from working on projects for which they might not be qualified. Contractor bonding helps stabilize the industry in a number of legally enforceable ways.

Contract Bond Protection

Contract bonds work to protect the best interests of the project owners and government agencies that fund construction projects, as well as the best interests of the public.

The Surety Information Office explains how crucial surety bonds are to the financial success of the construction industry:

"The use of corporate surety bonds makes it possible for the government to use private contractors for public construction projects under a competitive sealed bid, open competition system where the work is awarded to the lowest responsive bidder. Political influence is not a factor, the government is protected against financial loss if the contractor defaults, and certain laborers, material suppliers and subcontractors have a remedy if they are not paid, all without consequence to the taxpayer."

Bid bonds specifically work to keep the bidding process honest. When a contracting firm submits a bid bond along with a project bid, it makes a legal promise that it won't increase the bid after being selected to work on the project. For example, the city of Philadelphia frequently requires contracting firms to provide a bid bond that's 10% of the total bid amount. If the winning contractor raises the bid after being awarded the project, the city could collect on the bond to gain financial reparation.

Contract Bonds and the Surety Bond Process

Contract bonds function as do other surety bond types. Contractors and contracting firms purchase surety bonds to financially guarantee some aspect of their work. When a surety provider issues a bid bond to a contractor, the bond essentially acts as a legally binding contract among three entities:

1. the principal: the contractor or contracting firm that purchases the bond as a promise that the bid will not be increased
2. the obligee: the project owner that requires the bond to protect itself from potential financial loss
3. the surety: the agency that executes the bond, thus providing a financial guarantee that the contractor won't increase the bid

Although bid bonds are often used for publicly funded projects managed by the government, private project owners can also choose to take advantage of their protective benefits.

How Surety Bonds Affect the Bidding Process

When government agencies or other project owners require bid bonds, the contracting firm must purchase a bid bond and submit it along with its original bid. Bid bonds may not be purchased after a bid has been submitted, and surety providers will not execute a bid bond after a contracting firm has already submitted its formal bid to a project owner.

Contracting firms that want to bid on high scale public construction projects must have a high bonding capacity. Contracting firms can take a few approaches to increase their bonding capacities, such as

• making more investments
• taking their net cash position down to zero
• excluding net pension liabilities and construction credits in residential development co-ops

Although the effort required to secure bid bonds for high scale projects might seem unnecessary to some contractors, the stability they give the construction industry is irreplaceable. 

This article was provided by SuretyBonds.com, a nationwide surety bond producer.
SuretyBonds.com offers surety bond education to contractors who need to purchase contract bonds. The agency believes that contractors should understand the bonding market so they are prepared for the surety bond application process. 

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/riUh0b-Qyps/

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SBA Offers Federal Contract Program for Women-Owned Small Businesses

By: Edward T. DeLisle

As of Friday, February 4, 2011, women-owned small businesses could begin taking steps to participate in a new federal contracting program just for them. The new Women-Owned Small Business ("WOSB") Federal Contract Program (the "Program") will be fully implemented over the next several months, with the first contracts expected to be let during the fourth quarter of this year.

The Program will provide greater access to federal contracting opportunities for WOSBs and economically-disadvantaged women-owned small businesses (EDWOSBs).  It allows contracting officers, for the first time, to set aside specific contracts for certified WOSBs and EDWOSBs, which will assist federal agencies in achieving the existing five percent statutory goal of federal contracting dollars for WOSBs.

Complete information and eligibility requirements of the Program are listed on the SBA website.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/4xLqLQ_sk-0/

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Low E Residential Window Films

The sun's energy is one of the most overlooked contributors to the high energy costs that homeowner's face every month. Solar heat gain is used to refer to heat from the sun that enters your home through windows and skylights even when they are closed.  This heat must be removed by your air conditioning making it work harder and costing you more money.  A very cost effective way to control this heat and help keep your energy bills down is to use residential low E window films. 

These easy, sustainable, DIY protective coatings use the same spectrally selective glass technologies that are used in some of the most energy efficient skyscrapers and commercial buildings.  Spectrally selective window films help to manage the sun's energy all year round; keeping 55% of winter heating in your home and reflecting 70% of solar heat gain in the summer.  At a negligible investment compared to new windows, you can see the return on your investment through lowered utility costs in as little as a few months!

One of the best and most affordable window films is the Gila LES361 Platinum window films.  In addition to energy savings, this low E residential window film can offer several other priceless benefits.  By reflecting 99% of harmful UV rays you are protecting your interior furnishings from fading.  The Gila window film also rejects 67 percent of glare, filling your interior spaces with more pleasant natural light that does not heat up your home and drive up energy costs.

Remember to be smart when installing your low E window films!  It is possible that protective coatings are not necessary for every window in your home to see results.  In the northern hemisphere the south facing sides of homes are responsible for most of the solar heat gain.  Coating these windows will allow effective natural light in, while rejecting unwanted heat gain.  North facing windows will not see much if any direct sunlight and therefore may not need to be coated.  Realizing this will help cut down the initial investment without reducing savings in energy costs!

The Gila window film is a great product for your next sustainable DIY renovation project. This product is manufactured and packaged in the USA to ensure that it is produced to the highest standards in sustainablility and quality.

Source: http://www.sustainableconstructionblog.com/renovations/low-e-residential-window-films

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Court Reverses Termination for Default and Criticizes the Army Corps of Engineers for Failing to Acknowledge Its Defective Design

By: Michael H. Payne

A decision was issued by the United States Court of Federal Claims on December 20, 2011, in Martin Construction Co. v. United States, a case involving a Corps of Engineers construction project in North Dakota. Martin was represented by Michael Payne and Joseph Hackenbracht, of Cohen Seglias Pallas Greenhall & Furman, and the case involved a termination for default by the Omaha District of the Corps on a multi-million dollar project involving the construction of a marina. The termination occurred because the Contracting Officer concluded that Martin was at fault for failing to complete the project by the required contract completion date. Martin had argued that the Corps’ design of the cofferdam (temporary dam), which was critical to the construction of the marina, was defective and that the contractor was effectively prevented from completing the marina according to the original schedule. The Court agreed that there was a defective design and found that the Corps’ designer had grossly underestimated the amount of water that would flow through the cofferdam.

The decision is extremely critical of the Corps of Engineers and amounts to a complete vindication of Martin. The Court ruled that the termination for default was wrongful and ordered a conversion to a termination for convenience. This, of course, now exposes the Corps to the payment of damages amounting to millions of dollars to compensate Martin for the costs incurred in attempting to deal with the defective design. The Court aptly noted that “The most troubling aspect of this case is the Corps’ adamant refusal to accept any responsibility for the defective design, even while Martin made every effort to comply with it.” The Court was also very critical of the Contracting Officer and stated that “Competent procurement officials would have acknowledged the agency’s obvious design mistake, made the necessary corrections, and afforded the contractor the contractor the additional time and money to complete performance.”

The Court concluded that the “evidence is overwhelming” that Martin was entitled to a time extension and that the termination for default was improper. Judge Thomas Wheeler quoted Martin’s geotechnical and scheduling experts, and he also quoted the Plaintiff’s brief by stating that “As Plaintiff’s counsel aptly pointed out, the Defendant ‘ignored the elephant standing amongst the teacups in the living room.” The decision is an important verification to the federal contracting community that a termination for default is a “drastic action” that will not be sustained unless the government can meet its burden of proof that the termination was justified. It was unfortunate, however, that Martin was forced to suffer the consequences of the “black mark” associated with a default termination until, as in this case, justice was ultimately served.

Michael H. Payne is the Chairman of the firm's Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters, including teaming arrangements, negotiated procurements, bid protests, claims, and appeals.

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/dltvYJTgLS8/

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VA's Ambiguous Solicitation Leads to Successful Protest

By: Edward T. DeLisle

Over the last several years, the scrutiny over federal small business programs has grown. That scrutiny has led to changes in policy and legislation designed to curb potential fraud in the procurement process. Because these changes have been implemented in such a short period of time, however, it is not unusual for the government to issue solicitations for small business set-aside contracts that are confusing, or even contradictory. In Commandeer Construction Company, Inc., B-405771, December 29, 2011, that is precisely what occurred resulting in a successful protest.

Commandeer Construction involved a solicitation that was set aside for Service-Disabled, Veteran-Owned Small Businesses (SDVOSBs), a program that has experienced much change in recent years. In 2006, the VA was given the authority to restrict competition to SDVOSBs as part of the Veterans Benefits, Health Care, and Information Act (the "Act"). 38 U.S.C. 8127(d). As the GAO explained in Commandeer Construction, pursuant to the Act, an SDVOSB set-aside contract may only be issued to entities listed in a database of veteran-owned small businesses maintained by the VA. The VA has chosen to use what it has termed its "Vendor Information Pages" ("VIP"), which can be found at www.vetbiz.gov, as its official listing of veteran-owned and service-disabled, veteran-owned concerns.

Subsequent to issuance of the Act, the VA issued VAAR 804.1102, which states that all VOSB and SDVOSB entities must be listed in its VIP database by January 1, 2012 in order to be eligible for set-aside contracts for such entities. By December 31, 2011, all VOSB and SDVOSB entities must not only be listed, but must also be "verified," in order to receive new contract awards under the Veteran's First program, a program operated exclusively by the VA. While firms were once permitted to self-certify their status as VOSBs and SDVOSBs, as part of Veterans Benefits Act of 2010, the VA instituted a more rigorous qualification process. Consistent with this new review procedure, which was designed to weed out fraud, the VA's "Center for Veterans Enterprise" ("CVE") was given the authority to render eligibility determinations for these programs. If a firm wished to obtain a set-aside contract as a VOSB or a SDVOSB entity, it would have to be verified by CVE.

In an effort to assist in the transition from a self-certifying system to one requiring government approval, the VA issued what it called its "Memorandum from VA Acting Associate Deputy Assistant Secretary for Procurement Policy, Systems Oversight and Accompanying Class Deviation from VA Acquisition Regulation" (the "Memorandum"). The Memorandum referenced what the VA described as a "class deviation." Based upon this class deviation, any "apparently successful offeror" that had not already been verified by CVE, could become verified on an expedited basis, and obtain an award of a VOSB or SDVOSB set-aside contract, provided CVE approved its status. Later, the VA clarified its position regarding who may qualify for a “class deviation,” taking the position that a company was not eligible for “either award or Fast Track Verification," unless it was visible in the VA’s VIP database. Commandeer Construction addressed the interplay between the class deviation identified in the Memorandum and the VA’s attempt to subsequently clarify what it meant.

In Commandeer Construction, the VA issued an IFB for a construction contract that was set aside for eligible SDVOSB firms. The solicitation stated that the award would be made to an SDVOSB firm that had “been verified for ownership and control and [was] so listed in the [VIP] database.” The IFB also included the “class deviation” language referenced above. What was not included as part of the IFB, however, was the Memorandum (and accompanying deviation), or the clarification made to the deviation, which was issued after the fact.

On August 8, 2011, the protesting party, Commandeer Construction, submitted an application to the CVE for approval as an SDVOSB. Thereafter, on August 30, 2011, Commandeer submitted its bid. As its bid was the lowest of those submitted, Commandeer was in line for an award. As it was not listed in the VIP database, however, the contract specialist for the VA intended to contact Commandeer for purposes of explaining the process of obtaining expedited verification.

Prior to contacting Commandeer, the VA contract specialist apparently learned of the clarification for the first time and discussed its meaning and significance with other VA officials. Based upon these discussions, the VA contract specialist decided that Commandeer was ineligible for award and informed it of such by letter dated August 31, 2011. At the time, CVE had not rendered a final decision on Commandeer’s SDVOSB eligibility.

Commandeer protested VA’s decision, taking the position that rejecting its bid was improper based upon the expedited review procedures outlined in the solicitation. The VA countered that the deviation clause, upon which Commandeer relied for potential eligibility, was never meant to apply to entities that were absent from the VIP database. According to the VA, the deviation clause was merely an effort to provide assistance to those firms that had already self-certified, but had not yet been CVE verified under the new review procedures. Commandeer Construction at 4.

The GAO based its decision on a strict reading of the solicitation. The deviation clause in the solicitation specifically stated that “the apparent successful offeror” would be given an opportunity to have its SDVOSB status reviewed on an expedited basis, if it was not “currently listed as verified” in the VIP database. While the VA may not have intended for the deviation to apply to firms not already listed in its VIP database, the GAO concluded that the solicitation itself did not provide that qualification. As such, Commandeer’s understanding that it could qualify for award pursuant to the expedited review procedure was reasonable. Based upon this finding, the GAO recommended that the VA complete its review of Commandeer’s verification documents and, if found to be eligible for SDVOSB status, award it the contract.

As the government continues to alter its approach in exercising control over small business programs, mistakes, such as those in Commandeer Contracting, will happen. Contractors must exercise care in reviewing and responding to any solicitation. If, during the course of the review process, an ambiguity is discovered, bring it to the attention of the contract specialist, contracting officer, or source selection authority immediately. Doing so will benefit all bidders and quite possibly prevent a pre-bid protest. For those ambiguities that are not readily detectible, and are only revealed at the time of contract award, be prepared to discuss your concerns with an attorney familiar with such issues right away, as a protest is likely your only source of recourse. For those participating in the government’s various small business programs, the fast-paced nature of regulatory change has opened these programs up to issues such as those presented in Commandeer Contracting. Bid and beware.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.
 

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/xUVsTlENcKc/

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Recycled Aggregate for Carbon Neutral Concrete

    With the development of environmentally conscious construction projects across the world, there are still many demands of building materials that today?s technologies have not yet satisfied.  Looking at the two main structural building materials, steel and concrete, one in particular lacks characteristics of carbon neutrality.  While steel is nearing full recycled production, concrete remains a very carbon intensive process.  The main contributor to this trait is portland cement.  Portland cement exhausts sulfates, soot and nitrogen oxides when it is created (Chandra 518).  In addition, natural aggregate from raw mined material contributes to concrete?s carbon consumption.  These two aspects of concrete are in need of sustainable remediation in order for carbon neutral projects to allow its use in generous quantities. 

    With increased industrial activity and improvements in society, exists the ironic counteraction that these industrial buildings produce waste and consume natural resources during construction and the lifetime of their production.  Advancements in concrete technology have been oriented to correct this deficiency in several ways.  Through developments in alternative aggregates from recycled material and recycled admixtures that address the usage of portland cement, ready-mix concrete can be composed to be used in commercial and industrial infrastructure projects.  First, this new technology must undergo substantial empirical testing and analysis before it can be qualified by building codes.

    Construction and demolition waste programs have been established throughout the world to allow the use of recycled concrete as an alternative aggregate and 40% of all construction demolition is concrete (Ridzuan).  Other recovered concrete can come from sources such as site waste and old slump tests, as well as prefabricated concrete factory waste.  The Netherlands is the most responsible nation in this practice with nearly all of its concrete recovered.  Sadly, Europe in total only manages to recover 30% of concrete.   The United States recovers 82% of concrete in construction and demolition waste (CSI 9).  A common misconception is that recycled concrete can have cement extracted out of it but the process in which the clunker is formed is irreversible (Chandra 518).  The remaining use for recycled concrete is replacement of natural coarse aggregate in concrete mixes. 

    Because recycled concrete does not relieve the use of Portland cement in concrete mix it does not necessarily produce many carbon credits in its function. However, research shows that concrete does carbonate over time, and in particular, crushed concrete does so more efficiently because it has more surface area exposed to air.  An article in the Journal of Life Cycle Assessment shares that during its secondary life, all particles of crushed concrete can achieve full carbonation (Collins 552).  As a common application indicated by many sources it is most effective when used as a road sub base as 1.5-2 inch aggregate (PCA).  While others say it is best used as road sub base because its structural properties are undetermined, Frank Collins?s research indicates that recycled concrete in road sub base application can carbonate up to 41% compared to the carbon emissions produced when the Portland cement used is created (Collins 556).  In this respect, it is understood that depending on application of the recycled concrete, the carbon neutral credits could be assigned.  Nevertheless, crushed recycled concrete does carbonate to some extent when recovered and stored and thus consumes CO2. 

    In addition to road construction, structural concrete applications of recycled concrete pertain to aggregate substitution in various proportions.  As mentioned before, cutting back on raw mined material used as aggregate in concrete is beneficial to the environment.  However, this mostly pertains to reductions in green-house gas emissions, not carbon emissions.  In one study, the use of recycled concrete aggregate matched the structural properties attained using natural concrete aggregate.  The recycled concrete aggregate even produced concrete that was capable of exceeding standard compressive strengths by 2-20%.  This data alone is not enough to consider its value as structural concrete.  The recycled aggregate size used in the study was slightly smaller and lighter than natural aggregate.  The 20 mm nominal aggregate diameter had a loose bulk density of 1255 kg/m3 while the natural aggregate attained a loose bulk density of 1390 kg/m3.  This difference allows almost 30% more water to infiltrate between the aggregate and increase workability of the recycled aggregate concrete; however this leaves the shrinkage of the mix when cured to suspect.  The common trend in most recycled concrete aggregate studies was that 3000 psi concrete could be developed for structural purposes.  The most common succeeding proportion of mix included 50% of 20mm recycled coarse aggregate, 30% fine granite aggregate (10mm) and 20% coarse granite aggregate (Ridzuan).

    In a further study on the qualities of recycled concrete aggregate, the pore size and distribution of pores is analyzed.  Variations in water absorption of previous studies discussed were due to variation in pore sizes.  Pore sizes are contingent on what type of cement was used in its primary application.  As discussed before different admixtures are being used to achieve carbon cutting ready-mix cement.  These chemicals range from by-products of industrial production such as fly ash, silica fume, or slag (Ngab).  These chemicals, among others, will affect the porous properties of the aggregate and thus the water absorption ratio.  Results of this study revealed that the pore volume of concrete with silica fume was reduced by 30% compared to a 50 nanometer to 2 micrometer standard Portland cement pore volume due to the dense properties of the adhered mortar (Moon).  In order to make a consistently accurate mix, it is important to know what the primary concrete mix was composed of and thus the porous volume in the aggregate. 

    With water absorption ratios and compressive strengths confirmed viable by several experiments, one must consider the resultant concrete?s seismic performance.  In one study in China, researchers built three types of portal frames to perform seismic tests on.  One was constructed using concrete comprising of natural aggregate while the other was 50/50 recycled aggregate to natural aggregate and the final mix was 100% recycled concrete aggregate.  The results of the study revealed no evident difference in the cyclic lateral loading and the bearing strength of the recycled concrete aggregate compared to normal coarse aggregate.  Further conclusions of the study reported that additional studies needed to be performed in order to test the durability and serviceability of using recycled aggregate (Sun).  Through research studies it seems feasible to replace natural aggregate with recycled concrete aggregate, but a major factor to its use in construction is practicality. 

    In fact, due to several aspects of the necessary process, recycled concrete aggregate may not be very practical on large scale construction projects or as a component of ready-mix concrete.  In addition, at this time, the economic disadvantages are enough to outweigh any environmental contributions that recycled concrete may add to any project.  Sorting through construction demolition and waste is not an easy process (Chandra 514).  Not to mention, once the steel, glass, wood and concrete is separated there is still various granulated material mixed in to each batch.  These unknown constituent materials can cause impurities in the aggregate that could affect how the concrete cures (Limbachiya 129).  Once the concrete is separated it must be crushed into 10mm- 20mm pieces for fine and coarse aggregate.  This process is often cost deficient and could be considered more harm than good as units of recovered concrete are relocated several times from the demolition site to its secondary use as recycled aggregate.  This is not to say that this applies to all measures of use of recycled concrete aggregate.  An example of proficient recycled aggregate recovery is demolition of bridges and highways as well as airport pavement.  In these instances, the aggregate needs only to be separated from steel reinforcement and has no unknown constituent material (Limbachiya).

    While the concrete industry has made advances to develop mixes using recycled concrete as aggregate, it has made no tremendous gains in replacing carbon intensive Portland cement with an environmentally friendly alternative.  Through research of recent studies, it can be concluded that recycled concrete aggregate is an acceptable replacement to natural coarse aggregate in bearing and compressive strength.  The variation in pore size has led coarse aggregate to have a lower bulk density and thus higher water absorption, but the increased slump and workability does not affect its strength after it cures for 28 days (Ridzuan).  The practicality of using recycled concrete aggregate on large scale projects seems to be its limiting factor.  Nevertheless, structural properties achieved in a mix using recycled concrete aggregate are sufficient in complying to specifications and could be used.
 

Works Cited

Chandra, Satish. Waste Materials Used in Concrete Manufacturing. 3rd ed. pg 513-537. Noyes Publications, 1996. Print.
   
Collins, Frank. "Inclusion of carbonation during the life cycle of built and recycled concrete: influence on their carbon         footprint." International Journal of Life Cycle Assessment 15 (2010): 549-556. Print.

"Concrete Technology: Recycled Aggregate." The Portland Cement Association. PCA, 9 Sept. 2010. Web. 10 Dec.           2010. <http://www.cement.org/tech/cct_aggregates_recycled.asp>.

"CSI: Recycling Concrete." Cement Sustainibility Initiative. The World Business Council for Sustainable Development,         Web. 6 Dec. 2010. <http://www.wbcsdcement.org/pdf/CSI-RecyclingConcrete-FullReport.pdf>.

Limbachiya, M.C., et al. Performance of Recycled Aggregate Concrete. RILEM Publications, 2004. Print.

Moon, Joong Dae. "Effect of Pore Size Distribution on the Qualities of Recycled Aggregate Concrete." KSCE Journal of     Civil Engineering 6.3 (2002): 289-295. Print.

Ngab, Ali S. "Structural Engineering and Concrete Technologies in Developing Countries: An Overview." Structural             Engineering, Mechanics and Computation 2 (2001): Print.

Ridzuan, A.R.M, A.B.M Diah, R Hamir, and K.B. Kamarulzaman. " Influence of Recycled Aggregate on the Early                 Compressive Strength and Drying Shrinkage in Concrete." (2003): Print.

Sun, Yuedong. "Experimental research on seismic behavior of recycled concrete frame under vary cyclic loading." Tóngjì     dàxué xuébào 35.8 (2007): 1013. Print.

Source: http://www.sustainableconstructionblog.com/construction/recycled-aggregate-for-carbon-neutral-concrete

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Practical Marketing Considerations for Construction Brands FREE Webcast

Practical Marketing Considerations for Construction Brands Free Webcast – Tuesday, May 15, 2012 A webcast from the Construction Marketing Association (CMA) will address the three very important aspects of marketing in the construction industry:  hiring marketing talent, selecting marketing partners, and improving teamwork between marketing and sales departments. The free webcast for members and non-members [...]

Source: http://constructionmarketingblog.org/practical-marketing-considerations-for-construction-brands-free-webcast/

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Six New Bills Emerge to Assist Small Businesses

By: Edward T. DeLisle & Maria L. Panichelli

On March 7, 2012, a package comprised of six bills, (H.R. 3850--112th Congress: Government Efficiency through Small Business Contracting Act of 2012 (2012); H.R. 3851--112th Congress: Small Business Advocate Act of 2012 (2012); H.R. 3893--112th Congress: Subcontracting Transparency and Reliability Act of 2012 (2012); H.R. 3980--112th Congress: Small Business Opportunity Act of 2012 (2012); H.R. 4121--112th Congress: Early Stage Small Business Contracting Act of 2012 (2012); H.R. 4118--112th Congress: Small Business Procurement Improvement Act of 2012 (2012)), each designed to increase the number of federal contract opportunities for small businesses, cleared the House of Representatives’ Small Business Committee.

The most notable of the bills is the Government Efficiency Through Small Business Contracting Act (H.R. 3850). It would raise the government’s business goals for procurement contracts awarded to small business concerns, codified at section 15 (g) of the Small Business Act, from 23% to 25% of all prime contract awards per fiscal year. In addition, the bill proposes to increase the current goal of subcontracting to small business from 35.9% to 40% percent. Government-wide goals for procurement contracts awarded to small business concerns owned and controlled by service-disabled veterans (3%), qualified HUBZone small business concerns (3%), small business concerns owned and controlled by socially and economically disadvantaged individuals (5%), and small business concerns owned and controlled by women (5%) will remain the same. An amendment proposed by Rep. Gary Peters, D-Mich., would have raised the set-aside for economically and socially disadvantaged businesses from 5% to 7.5%, but it was withdrawn.

The Small Business Advocate Act (H.R. 3851) elevates agency Small and Disadvantaged Business Utilization offices both in terms of salary and duties. Specifically, it amends the Small Business Act to require the Director of Small and Disadvantaged Business Utilization (established in each federal agency having procurement powers) to be compensated at least at the GS-15 rate and allows such a position to be compensated up to a Senior Executive Service level. It also adds, as additional duties of each Director, the following:

(1) reviewing and advising on decisions to convert an activity performed by a small business to an activity performed by a federal employee;

(2) providing advice and comments on acquisition strategies, market research, and justifications related to small business;

(3) providing training to small businesses and contract specialists;

(4) carrying out exclusively the duties enumerated under the Act and, while Director, not holding any other title, position, or responsibility, except as necessary to carry out such duties; and

(5) reporting annually to the congressional small business committees on the provision of small business and contract specialist training.

Lastly, it amends the Federal Acquisition Streamlining Act of 1994 to require the Small Business Procurement Advisory Council to: (1) conduct reviews of each Office of Small and Disadvantaged Business Utilization to determine compliance with Small Business Administration (SBA) requirements, (2) identify best practices for maximizing small business utilization in federal contracting, and (3) report annually to the small business committees on such reviews and best practices.

The Subcontracting Transparency and Reliability Act (H.R. 3893) would amend the Small Business Act to prohibit a small business receiving a guaranteed loan through the Small Business Administration from expending more on subcontractors than: (1) 50% of the loan amount received, in case of a contract for services other than construction; (2) 85%, in the case of a contract for general construction; (3) 75%, in case of a contract for construction by a special trade contractor; and (4) 50%, in the case of a contract for supplies (other than from a regular dealer in such supplies). This bill would require the small business, in case of a contract for supplies from a regular dealer, to supply the product of a domestic small business manufacturer or processor, unless the SBA grants a waiver. The Bill authorizes the SBA Administrator to: (1) modify the above percentage limits when necessary to reflect conventional industry practices; and (2) establish a subcontractor percentage limit for contracts not covered by (1) through (4), above, and provides penalties for violations of such limits.

Under the bill, each subcontracting plan submitted to federal agencies is required to contain assurances that the offeror or bidder will: (1) report on subcontracting activities throughout the life of the contract, and (2) cooperate with any study or survey required by the federal agency or the SBA to determine the extent of compliance with the subcontracting plan. The bill directs the Administrator to ensure that the federal subcontracting reporting system to which such reports are submitted is modified to notify the Administrator, the appropriate contracting officer, and the appropriate Director of Small and Disadvantaged Business Utilization if an entity fails to submit a required report. It also provides that a contractor’s failure to submit such a report constitutes a breach of contract for which appropriate action may be taken. If an agency procurement center or commercial market representative determines that a subcontracting plan fails to provide the maximum practicable opportunity for small businesses to participate, under the bill, such representative may delay acceptance of the plan for a 30-day period for plan alteration.

The bill also allows a federal agency to convert a function from performance by a small business to performance by a federal employee only if: (1) the agency has made publicly available the procedures for such a decision, and (2) the procedures require such decisions to be reviewed by the appropriate Office of Small and Disadvantaged Business Utilization and procurement representative. (H.R. 3893--112th Congress: Subcontracting Transparency and Reliability Act of 2012. (2012).

The Small Business Opportunity Act (H.R. 3980), amends the Small Business Act to replace the position of “breakout procurement representative” within the Small Business Administration with the position of “procurement center representative.” Pursuant to the bill, such representatives must review any acquisition plan for a procurement requirement and make recommendations regarding procurement method determinations and acquisition plans. The bill would remove the requirement that these representatives review restrictions on competition, instead requiring them to review barriers to small business participation in federal contracting, as well as any bundled or consolidated solicitation or contract. The representatives must: (1) have electronic access to any acquisition plan developed or in development with respect to a procurement activity, (2) be an advocate for the maximum practicable utilization of small businesses in federal contracting, and (3) be notified of and included in all applicable acquisition planning processes.

The bill directs the Defense Acquisition University and the Federal Acquisition Institute to each provide a course on contracting requirements under the Small Business Act, and requires each federal department or agency having contracting authority to: (1) enumerate opportunities for participation by small businesses during all acquisition planning processes and in all acquisition plans, and (2) invite the participation of the appropriate Director of Small and Disadvantaged Business Utilization and procurement representatives in such planning processes and provide Director and representative access to all acquisition plans in development.

The Early Stage Small Business Contracting Act (H.R. 4121) would amend the Small Business Act to direct the Administrator of the Small Business to establish and carry out a program to provide increased access to federal contract opportunities for early stage small businesses (a business with no more than 15 employees and average annual receipts of no more than $1 million). The bill requires the Administrator to identify appropriate federal procurement contracts for award under the program and allows a contracting officer to award: (1) a sole source contract under the program if an entity is determined to be a responsible contractor and the officer does not reasonably expect that two or more early stage businesses will submit offers, and (2) contracts on the basis of competition restricted to early stage businesses if the officer reasonably expects that at least two early stage businesses will submit offers and that the award can be made at a fair market price. It requires all program contract awards to be counted toward goals for small business participation in federal procurement contracts.

Small Business Procurement Improvement Act (H.R. 4118) would amend the Small Business Act to provide for increased small business participation in multiple award contracts, and for other purposes. Specifically, the bill would add to section 15(g) of the Small Business Act a requirement that the President shall establish “government-wide goals for the total dollar value of all task orders and delivery orders placed against multiple award contracts, blanket purchase agreements, and basic ordering agreements awarded to small business concerns, small business concerns owned and controlled by service disabled veterans, qualified HUB-Zone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women.”

What does all this mean? Based upon the bi-partisan nature of the support for these bills, it means that there is agreement across the aisle that small businesses are deemed an important factor in the country’s economic recovery. Expanding the government’s goals for small, and small disadvantaged, businesses, for example, will assist in steering federal dollars to those who may not have otherwise had access to those dollars. Small companies benefitting from the receipt of federal contracts will hire employees and buy goods and services to support those contracts. Large businesses will, and certainly should, play a role in the legislative process as the bills wind their way out of committee. We will follow the progress of each bill and report back with any findings.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.  Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

 

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/StvKcj2sUi4/

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Vinyl Window Seal Failure ? How To Repair

Source: http://feedproxy.google.com/~r/feedburner/SETh/~3/VIT6W3u4zZE/

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A Sustainable Construction Outlook for 2011

2011 buzzwords: net-zero energy, passive house, and photovoltaic.

As we bring in the New Year, there are several trends that will define the construction industry in 2011.  As in recent years, the industry is undoubtedly headed in a sustainable direction focusing on environmentally friendly materials, energy efficiency, and alternative energy sources.  The outlook for the industry in 2011 considers these same principles, but we will see a stronger more informed focus in several areas.

Achieving net-zero energy has become the driving force behind many sustainable projects both commercially and residentially.  Net-zero energy is a term that defines the outcome of a buildings performance due to its energy efficiency based on super-insulation properties combined with alternative energy sources. 

Sustainable construction developments over the past few years have brought us new innovations and technologies that have prepared the industry to take a more feasible approach to redefining building standards.  While the USGBC?s LEED certification standards have been a strong notion to spark the green building revolution, they have also faced a fair share of adversity in 2010.  Adopting energy efficiency and alternative energy guidelines from the LEED standards, and then taking these standards one step higher, leaves us with a new industry wide focus that becomes more budget friendly in an otherwise economically suffering industry.
 
Since net-zero energy is merely a concept; it fundamentally defines an achievable goal that allows architects and engineers to decide how this goal will be reached without being bound by a scorecard of standards.  One set of standards that can be used as a general guideline for super insulation is Passive House.  The Passive House standards are not as complex or demanding as LEED but provide a more beneficial result; one which is crucial in achieving net-zero energy.  Its main goal is to decrease energy loads in the building and meet the new alternative energy technologies halfway for a net-zero energy building performance. 

Looking back on 2010, this outlook can be justified by recalling what the majority of investment and research activity focused on.  The U.S. government, under the American Recovery and Reinvestment Act (ARRA projects), invested in energy reducing electrical and mechanical systems, window and wall insulation research and development, and many photovoltaic products and projects.  As ARRA funding runs out this year, the construction of new bridges and highways will slow down; however, residential and commercial projects are expected to increase.  It will be an exciting year for the construction industry to see these new technologies implemented into state of the art, net-zero projects that will set a new precedent for years to come.

Source: http://www.sustainableconstructionblog.com/construction/a-sustainable-construction-outlook-for-2011

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Google Plus Business Pages ? Do I Need One?

Since there are still mixed reviews across the web, we decided to dig through all the jabber about this high-profile social network. We found some helpful resources to look into that will hopefully clear up the social clutter. To start with, it does not hurt to claim your Google+ business page. Why? At the very least, [...]

Source: http://constructionmarketingblog.org/do-i-need-a-google-plus-business-page/

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Construction Marketing Advisors Recognized Again as Top Agency

BtoB Magazine announced in April of 2012, that the Construction Marketing Advisors were recognized as a top agency for 2011. This is the second year in a row that the Construction Marketing Advisors received this recognition. In 2011, Construction Marketing Advisors worked with several clients in the construction and building products industry including Weather Guard®, [...]

Source: http://constructionmarketingblog.org/construction-marketing-advisors-recognized-again-as-top-agency-by-btob-magazine/

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London provides the first sustainable Olympics ...and more

Being the host of the Summer Olympic Games is a privilege and an opportunity for a city and a nation to spark economic growth.  London, the host of the 2012 Olympic Games, plans to do more than just that.  The London Organizing Committee of the Olympic Games is a company that is in charge of handling private sector investments and public sector funding.  The public funding is provided by the Department for Culture, Media and Sport.  They are using this opportunity to develop a struggling part of London into a sustainable community that will thrive off of the new infrastructure developed around Olympic Park for many years to come.  Accordingly, the focus of all planning and construction is on the ?legacy? of the Olympic Games in East London.

Based on England?s grasp of sustainability, I expect the new Olympic venues to harness some of the most sustainable qualities and innovations available.  Further than using new ?green? materials and technologies, the concepts behind the planning and future of the Olympic sites make it a wholesome sustainable project.  The underlying sustainable mentality was based on reusing existing venues when possible, creating permanent structures only where they will be kept for long-term use, and using temporary structures for anything that will be taken down after the games. 

In general, the sustainability plan focuses on climate change, biodiversity, waste, inclusion of local community, and healthy living.  All of these aspects are considered when designing and planning.  It is exciting to learn about all of the new projects and the sustainable development of such a large area and population.  The Sustainable Construction Blog will share many posts including details of the construction project and analysis of how London is implementing the sustainability plan into these projects.

The results of this project should provide inspiration to the rest of the world as a model of sustainability. 

Source: http://www.sustainableconstructionblog.com/news/london-provides-the-first-sustainable-olympics-and-more

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Possible Extension of GAO's Protest Authority in the Works

By: Edward T. DeLisle

As part of the National Defense Authorization Act of 2008 (the 2008 Act), Congress provided the General Accounting Office (GAO) with the authority to hear protests involving certain task and delivery order contracts emanating from both defense and civilian agencies. At the time, this authority was limited to a period of three years, meaning that it was set to expire later this year. A few months ago, President Obama signed the National Defense Authorization Act of 2011 (the 2011 Act). As part of that Act, Congress partially extended the GAO’s authority. It permitted the GAO to continue hearing task and delivery order protests for contracts in excess of $10 million, but only for those contracts issued by Department of Defense agencies. For a reason not readily apparent, Congress failed to extend the GAO’s authority over civilian agencies. A bill has emerged in the Senate to address this omission.

As reported by Law360, Senate Bill 498, entitled the “Independent Task and Delivery Order Review Extension Act of 2011,” was recently introduced by Senate Homeland Security and Governmental Affairs Committee Chairman Joseph Lieberman, I-Conn. If passed, it would extend the GAO’s jurisdiction over task and delivery order protests relating to civilian agencies for an additional five and a half years, equaling the extension provided on DOD protests under the 2011 Act. This is an important development for government contractors. Many questions arose following passage of the 2011 Act. Why would Congress only extend the GAO’s authority over task and delivery orders on DOD work? It is possible that this was simply an oversight, though no one is quite sure. The legislative history is devoid of any discussion on the issue. Whatever the reason, if passed, S. 498 would maintain the status quo for five more years. We will continue to track this bill and report on its progress.

Edward T. DeLisle is a Partner in the firm and a member of the Federal Contracting Practice Group.

Source: http://feeds.lexblog.com/~r/FederalConstructionContractingBlog/~3/RKjehXekCOw/

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The Year 2010 In Review: Prevailing Wage & Employment Law

This article is the sixth in a series summarizing construction law developments for 2010.

By Candace Matson, Harold Hamersmith & Helen Lauderdale

1. Alameda County Joint Apprenticeship and Training Committee v. Roadway Electrical Works Inc., 186 Cal. App. 4th 185 (1st Dist. June 2010)

A general contractor and its electrical subcontractor working on the project to rebuild the Bay Bridge were sued by various electrical unions, electrical contractors, and electrical contractors' associations. The plaintiffs asserted claims for unfair and unlawful competition under Business and Professions Code Section 17200 claiming that that defendants were using unauthorized workers to perform work that called for certified electricians under Labor Code Section 3099. The defendants succeeded in obtaining the dismissal of the lawsuit by arguing that the plaintiffs' claims raised issues with respect to the proper classification of workers, that it was up to the Department of Industrial Relations ("DIR") in the first instance to determine the scope of work that must be performed by certified electricians, and that plaintiffs had failed to exhaust their administrative remedies with the DIR before filing suit.
 

The Court of Appeal reversed. Labor Code Section 3099 was enacted in 1999 to establish and validate minimum standards for training and competency for electricians. It requires all persons who perform work for electrical contractors with class C-10 licenses to be certified. Section 3099 was not enacted as part of prevailing wage legislation, but rather as public safety legislation to ensure that electrical work be performed safely by properly trained electricians. When the general contractor bid for and secured electrical work requiring a C-10 license, it was on notice that it was obligated to use certified electricians to perform the work. Because the requirement for C-10 licensees to employ certified electricians was not the result of any DIR determination, but rather was a statutory requirement, the plaintiffs' claims that alleged violation of the statute did not require that any type of administrative proceeding be exhausted before the claims could be presented in court.

2. Azusa Land Partners v. Department of Industrial Relations, 191 Cal. App. 4th 1 (2d Dist. Dec. 2010)

The private developer of a planned residential community reached an agreement with the City of Azusa regarding the public infrastructure that would be required as a condition of approval of the proposed planned community. The infrastructure included a school, park, streets, storm drains, sewers, utilities, and other improvements, all of which were estimated to cost $147 million to construct. Roughly one-half of the cost would be financed through Mello-Roos bonds; the other half was to be paid from private funds.

The developer unsuccessfully sought a determination from the DIR that the portion of the public improvements paid for through private funds need not be subject to the prevailing wage requirements of Labor Code Section 1720, et seq. The DIR's determination was upheld by the trial court, which in turn was affirmed by the Court of Appeal. The Court held that Mello-Roos bond proceeds are public funds under Section 1720 and that the obligation to pay prevailing wages applied to all of the public improvements required for approval of the development, even though some of the specific improvements might be entirely financed with private funds. The Court of Appeal rejected the developer's argument that each piece of infrastructure should be analyzed individually to determine if its construction was paid for with public funds. Instead, the Court held the public infrastructure works that were a condition of the development's approval must be analyzed as a whole; if public funds are used to pay a portion of the overall infrastructure costs, then prevailing wages must be paid in connection with the infrastructure costs, regardless of whether individual aspects of the infrastructure were privately funded.

Authored By:

Candace L. Matson is a partner in Sheppard Mullin's Los Angeles office where she specializes in construction law.  Harold E. Hamersmith is a partner in the firm's Los Angeles office specializing in design and construction contracts, claims, and defects litigation, and public contract law.  Helen J. Lauderdale is a special counsel specializing in construction litigation in Sheppard Mullin's Los Angeles office.

Source: http://feeds.lexblog.com/~r/ConstructionInfrastructureLawBlog/~3/rkGk3zSfvJc/

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