CHAPTER ONE PHASES OF THE CONSTRUCTION PROJECT By John Anderson, Michael Huhn, Diana M. Rivera, and Marianne Susong L Introduction Construction is an art, not a science. In delving into all of the steps that occur at each phase of construction — from the owner’s planning and budgeting phase, through the design stage when the drawings and plans are created, to the contractor selection stage, and through the physical construction phase of the project when the project is complete and turned over to the owner for use — it is clearly an art of coordination and management that must occur at every step to keep any construction project on schedule and on budget. Andrew Carnegie stated, “Teamwork is the ability to work together toward a common vision. The ability to direct individual accomplishments toward organizational objectives. It is the fuel that allows common people to attain uncommon results.” Indeed, taking mere ideas and turning them into end products of well- built, useful structures is a remarkable feat. It requires coordinated teamwork among all the players involved, throughout all the phases of the project, to attain the successful delivery of a completed construction project. This chapter describes and discusses the many steps that occur in each phase of the construction project. While the construction project phases are broken into three main sections, simply described as Pre-Construction, Construction, and Post-Construction, the activity that occurs during each phase of a construction project is anything but simple. We hope that this chapter’s overview of the construction project phases will provide the reader with a better understanding of the many processes and elements of teamwork that must be coordinated on every construction project in seeking a project’s successful completion.Chapter One 5 Recognizing the uniqueness of every construction project, this chapter describes the phases of a typical, general building project, focusing on state/local public works rather than private or federal projects. Where appropriate, the chapter adds comments related specifically to private or federal works. I. Pre-Construction Phase A. Planning, Budgeting, Permitting Every project starts with a conceptual plan and budget. The planning process for major development projects can often take years and be very complex, especially when public funds are involved. The process will often involve the preparation of a lengthy feasibility or development report. Thus, frequently a public agency will contract with planning firms to help with this process. For major projects, the process will typically start with a facility or needs analysis to forecast future demand against current supply. For example, a school district forecasts the need for a new grade school ina community based on enrollment projections and availability in existing surrounding schools. The planning process will typically involve many public agencies, including building officials, public utility engineers, planners, and elected officials, as well as community participation. In the planning process, the planner will also investigate site constraints, which may dramatically affect the usefulness or the cost of the project. For example, in selecting the site for a new school, the district determines that the school needs to be near multiple modes of transportation such as automobile, bicycle, and bus lanes but away from industrial or commercial zones. The planners also need to weigh the effect of the development on the local community such as noise, traffic, aesthetics, use of local utilities, cultural/historical impacts, and future growth. Budget constraints often limit the planning of a major development project. In the public arena, a governmental agency will often place major projects on a priority list, which will then involve legislative approval before funding. Governmental agencies will often set the budget before they arrange for the production of detailed designs. Therefore, to perform an accurate cost estimate, the planners need to include an adequate contingency fund in their preliminary budgets. Frequently, because of budget constraints, the governmental agency needs to completely redefine the basic conceptual plan. Therefore, it is uneconomical to proceed with6 Phases environmental permitting or architectural design until the agency sets the conceptual plan and budget. While the first stage of any project involves planning and budgeting, environmental constraints are becoming an increasingly limiting factor in development. For many projects, the environmental review process can take years, sometimes longer than the actual design and construction process. In addition, the environmental review process often will set the design constraints for the project, such that no detailed design can take place until after the process is completed. Typically, an environmental consultant performs the management of the environmental review process. That process could include studies on the impact on local endangered species, traffic studies, impact on cultural or archeological sites, erosion or sediment control, visual impacts, and tourist and local business impacts. The goal of the study is to prove that the project has little or no impact on each of the areas of concer, or, if it does have some impact, to offer offsetting mitigation factors. For example, if the study finds that the project will impact a cultural resource, the impact report may propose an offsetting benefit to the community in terms of environmental, visual, tax base, or other gain. In some cases, the study will recommend a mitigation of the impact. For example, if the report finds that the project will impact a certain habitat, the developer may offer mitigation by converting another site into one that will support the lost habitat. The proposed mitigation is typically at equal or greater size and at the developer’s expense. Typically, the developer/applicant prepares an Environmental Impact Review (EIR) or Environmental Impact Statement (EIS) for the local governing agency’s review. An EIR is, basically, a simplified version of an EIS. The jurisdiction for the governing agency is determined by legislation, and could include local review (such as a city or county environmental/planning board); state review (such as a state environmental review board); federal review, such as the Environmental Protection Agency (EPA) or U.S. Army Corps of Engineers (USACOE); or special jurisdictional review, such as a coastal commission or regional planning commission. The magnitude and anticipated impact of the project determines whether there needs to be an EIR or EIS. 1. Design Phase The selection of a designer is a major factor in a project’s success and takes place once the project’s design criteria are established. The owner creates the project design criteria once it knows its budget, environmental restrictions, and other needs. The project design criteria describes theChapter One 7 project’s purpose, architectural goals, applicable codes, and special requirements. See Exhibit 1 for an example of a project design criteria These project design criteria govern the architect and engineer in their project design and often determine the final project budget. Upon the owner’s approval of the design, the designers formalize the design into plans and specifications suitable for construction. Designers are typically engineers or architects, and they are often involved through final completion of the project. The quality of their design, preparation of contract documents, and assistance in the construction management process is critical to a project’s success. The decision as to whether to have an architect or engineer to lead the design effort is a function of the project’s needs. If the project is a building, an architect often takes the lead. If the project is service-based, such as a road, bridge, or treatment plant, typically an engineer takes the lead. Because of the increasing complexity of modern projects, a multi- discipline approach to design is required. Therefore, several specialty designers or sub-consultants will also be required to perfect the design. As illustrated in below chart, an architect will contract with engineers, including structural, mechanical, and electrical, as well as consultants to assist with interior design, landscaping, lighting, acoustics, and waterproofing. Owner Architect(s' Consultan’ - Interior design Structural Landscaping Mechanical ~ Lighting ~ Electrical Acoustics = Soil/Geotechnical - Waterproofing8 Phases In contrast, illustrated below is a typical organization chart for an engineering project such as a bridge. Owner Bridge Engineer (Structural) Consultants: Civil/Traffic Engineer Landscaping Lighting/Electrical Marine Corrosion Soils/Geotechnical The selection of a design firm is typically proceeds through a Request for Proposal (RFP) process. Interested firms will prepare proposals, which will include their proposed sub-designers, their experience, and an estimate of their costs and fees, The RFP may also request the perspective designers to include a write-up of their design approach to the project or request the designers to provide preliminary sketches. The selection process could also involve an interim step, known as a design charette. Ina design charette, the owner asks a short-listed group of designers to present their preliminary designs before a selection board. The selection board will then combine the best ideas from all groups and make a final selection for the designer. The selection of a designer is a time consuming and laborious process that can often take months to complete. However, it is an important process in determining the success of the project. The owner must weigh the experience, creativity, as well as cost of the designers’ services, in making its final selection. Once the owner selects a designer, the owner enters into a contract for services with the designer. The most common, standard contract utilized between the designer and owner is the AIA (American Institute of Architects) contract documents. Typically, the determining factor for the type of contract is the method of payment for the designer. PaymentChapter One 9 methods include lump sum, time and material (T&M), or percentage of cost of construction. Because the owner does not typically know the ultimate project scope at the time of contracting with the design firm, it is often difficult to determine an accurate lump sum price. Asa result, most design contracts are either T&M or percentage of cost of construction. Ina T&M contract, the designer will bill the owner, pursuant to a pre-determined rate sheet, the actual staff hours spent on the project. In addition, the designer will also bill the cost of materials provided to the project. In some contracts, there is an established cap or not-to-exceed (NTE) amount. When the designer reaches its cap, it cannot continue to bill for services rendered under its contract. Alternately, on a percentage of cost of construction contract, the designer bases its fee on the ultimate cost of construction. However, because the owner does not know the ultimate cost until project completion, the parties estimate an amount based on the contract value and then add allowances for adjustment when they know the ultimate cost. For a designer to fully meet an owner’s needs, the design process will need to involve close interaction between the designer and the owner. It is important that the owner fully understand the proposed design as changes during the construction phase are orders of magnitude more expensive then changes during the design phase. As such, it is vital that the designer present the design in such a manner that the owner can visualize the designer’s intent. To facilitate this interaction and provide opportunities for focus on specific issues, the design process itself is often broken into phases. During each phase, the design team will develop more evolved drawings, which will then allow for the owner’s further review and modification. As phasing can vary by project, the design contract typically spells out the phasing specifics in the design contract. A common project approach involves three phases: 1. Schematic Design Phase 2. Design Development Phase 3. Construction Drawings Phase The purpose of a phased design approach is to clearly layout the procedure for which the designer will complete intermediate design presentations to allow for owner comment and interaction. 2, Schematic Design Phase The schematic design phase, also called the preliminary design phase or 20% design phase, as these drawings represent the project at 20% into the design effort. In this phase, the designer and owner will formalize and10 Phases document the program requirements, develop a site survey (or an as-built drawing set if the project is a remodel of an existing structure), complete the review of local building code restrictions, and conduct preliminary meetings with local planning commissions. The designer will develop drawings and/or sketches, which will include a preliminary site plan, a preliminary exterior elevation, a preliminary floor plan, and preliminary building sections. The sketches will include only approximate dimensions, usually detailed to the nearest foot. The designer typically develops these drawings toa level by which it can determine parameters, such as coverage, building height, floor area, and overall architectural concept. The designer may even present a physical model. The design contract should spell out the specific details of the expected work product of the designer. Upon completion of this phase, the owner will review and comment upon the work product produced. In order for the project design phase to stay on schedule, the design contract should set clear deadlines and milestones that outline when the designer will complete each design phase, and the allowable time for the owner to provide comments. 3. Design Development Phase In the Design Development phase, the designer will incorporate the comments from the owner received during the schematic design review. The designer will then develop detailed site plans, floor plans, and building sections. Incorporated into these drawings are the structural, electrical, and mechanical requirements, as well as interior design and lighting, as designed by various sub-consultants or designers. In addition, the designer will propose and incorporate preliminary material and color selections. Upon completion of the design development phase, the designer will have produced a more detailed drawing set, which should include floor plans, exterior elevations, a site plan, interior elevations, furniture layout plans and preliminary electrical, mechanical, foundation and structural framing plans. The designer develops these drawings to a stage to allow the preparation of a preliminary construction estimate. The design development phase will also include a draft specification. “Specifications” outline submittal requirements, allowable products and materials, installation constraints, allowable tolerances, inspection and testing requirements, and warrantee requirements. The specifications should cover every item of work that the contractor will encounter. The specifications will also reference applicable standards that a contractor must follow. Well-written specifications should divide the work into chapters or divisions in the same manner that trade subcontractors would logicallyChapter One i divide the work — a work breakdown structure. A good division of work defined in the specifications will allow for clear communication of issues between the design team, contractor, subcontractors, and suppliers. The Construction Specification Institute (CSI) has set standards for the construction industry of how to prepare specifications and the breakdown the work, For the past 40 years, CSI has set a standard in the United States, breaking down the work into 16 divisions. CSI has recently recommended a change to that system which will break down work on a construction site to 50 divisions. See Exhibit 2 for an example of a work breakdown structure for a building project that follows the 16-division system. In some cases, color renderings and/or three-dimensional computer graphic representations accompany the completion of the design development phase. These drawings are the 50% design drawings. As in the completion of the first design phase, the Schematic Design Phase, the owner will review and comment on the work produced during the Design Development Phase. Again, the design contract should define the work product that the designer will produce upon completion of the Design Development Phase. In addition, the design contract should specify the timeline for both completion and the owner’s review. 4. Construction Drawing Phase Upon inclusion of the owner’s comments, the designer will then develop the final construction drawings and final specifications. The construction drawings will include complete and accurate dimensioning on the site plan, floor plan, and elevations; complete and detailed selection of materials; and complete mechanical, electrical, lighting, foundation, and structural drawings. The final specification book will detail materials, inspections, and level of workmanship. The goal of the construction-drawing phase is to develop drawings and specifications that are thorough enough for a contractor to both accurately estimate the cost to construct and actually construct the project. These drawings are the 100% drawings. The designer typically first transmits these construction drawings in draft form — the final draft drawings. Upon the owner’s review and acceptance, the designer produces the final construction drawings. The completion of the final construction drawing is not the end of the designer’s involvement with the project. Ata minimum, the designer will need to be involved through the construction process to answer questions and provide interpretation. In addition, state or local statute often requires the designer to provide a final certification. In some projects, the owner12 Phases will also retain the designer to manage the project, approve monthly payment applications/requisitions, approve change orders, conduct claims review, and/or provide inspections. The design contract should detail the designer’s involvement or construction administration services during the construction phase. B. Engineering During the design process, the owner will often incorporate pre- construction consulting activities in an attempt to minimize future construction problems. These activities include preliminary cost estimating, constructability reviews, and value engineering. The owner sometimes adds these tasks to the designer’s scope; however, a separate design or construction professional should handle these tasks in order to provide for an impartial review of the designer’s work, Construction or cost engineering consultants often perform these reviews or, in some cases, another architectural or construction firm will perform them. 1. Preliminary Cost Estimating ‘The goal of performing a preliminary cost estimate is to determine the approximate project cost early in the process so that the owner can either make adjustments in the design or allow for budget changes. The owner or its design professional typically performs the preliminary cost estimate upon completion of the Design Development Phase, but they can perform the estimate upon the completion of the Schematic Design and Construction Drawing Phases. The advantage of performing a cost estimate upon completion of the Construction Drawing Phase is that the owner has at least one benchmark to determine if a bid is reasonable if it is the only one received. 2. Constructability Review A constructability review addresses the practicality of building the project as designed. When performed early in the design process, a constructability review can help identify trade coordination issues, potential logistical challenges, or material use problems. For example, the project may include in its preliminary design, the use of pre-fabricated large span beams. However, a constructability review may reveal that the site may be constrained such that erection of such large beams is impossible or economically unfeasible. In that the parties discovered the problem early in the process, the designer can then research alternative solutions, such as a cast-in-place concrete beam, field welding, or adding a column.Chapter One 13 3. Value Engineering The purpose of value engineering is to evaluate the design on a cost- benefit basis. When executed properly during the pre-construction phase, the value engineering process can yield the greatest savings to the owner in terms of both time and money. In the value engineering process, a third-party is called upon to evaluate the design and determine whether certain items may be designed differently to achieve the same or similar goals, but in a more cost efficient manner. For example, the designer may have specified a poured-in-place concrete retaining wall; however, a more cost-effective solution may be concrete block, given the local market. The use of value engineering in construction has proven so effective to achieve cost savings for owners, that some have provided incentives to contractors who achieve value engineering. An example is the United States government, which on some contracts will allow the contractor to keep 50% of the cost savings on approved value engineering proposals they propose. Both the designer and the owner need to review the acceptability of a value engineering proposal. As the designer is still typically responsible for the overall design, it needs to assure that the proposed change will not have an adverse effect. C. Contractor Selection After the selection of the designer, contractor selection is the next most important step for an owner to assure a successful project. The contractor selection process can vary greatly depending upon the project and legislative constraints. 1. Contracting Method First, the owner will need to decide on which method of contracting to use. This decision is best made early in the design process, as the method will often alter the design process itself. For example, if the owner decides to use a design-build approach for some elements of the project, then the designer can stop work on those elements at the design development phase. Ata minimum, a public owner must finalize the form of contract and make it a part of the bidding documents prior to bid date. Contracting options are as follows: e Lump Sum Contract14 Phases Unit Price Contract ° e Cost Plus (T&M — time and material) e¢ = Multi-Prime e Design Build 2, Potential Contracting Constraints In addition to the selection of the contracting method and form of contract, the owner will need to decide on several other contracting constraints prior to selection of the contractor. These include: e Time for Completion Liquidated Damages Insurance Requirements Bonding Requirements and Bond Form Union vs. Open Shop Prevailing Wage Restrictions e Minority and Women Owned Contracting Incentives or Requirements (MBE/WBE) © Minimum Experience and/or Qualifications e Subcontracting Requirements e Green Building Rating Program (The LEED--Leadership in Energy and Environmental Design--is a voluntary, consensus-based national standard for developing high-performance, sustainable buildings. Members of the U.S. Green Building Council representing all segments of the building industry developed LEED and continue to contribute to its evolution.) The General or Special Provisions section of the Specifications should clearly address these contracting constraints. Several of these constraints are requirements of local, state, or federal statutes, such as prevailing wage and minority- or women-owned contracting requirements. The owner should clearly indicate in the bidding documents the statutes that apply to the project. In that way, prospective bidders can accurately evaluate and estimate the project. D. Bid Phase Bidding procedures vary greatly on projects, especially between private and public projects. In the private sector, for which bid collusion statues do not apply, owners have greater flexibility in selecting a contractor and often will simply negotiate with one or several entities. For public agencies, the selection process must follow guidelines and laws developed to prevent favoritism and allow for fair competition.Chapter One 15 In either case, the goal of the bid phase is to select the lowest qualified bidder to allow for project completion to the owner’s satisfaction at the most competitive price. The bid phase typically involves the following stages: 1, Advertisements By law, public agencies must advertise a project to ensure equal and fair competition, but increasingly, private developers are using project advertisements to attract qualified contractors. Typical advertisement publications include local public newspapers or trade journals like Engineering News and Record, Reed Construction Data, and Mc Graw Hill. In addition, there are many online services such as www.bidclerk.com and www.construction.com offering project-listing services. Large agencies, which procure many projects, frequently have their own publications, such as the United States government’s Commerce Business Daily. Contractors will subscribe to these publications and review them weekly, if not daily. A project advertisement or solicitation will typically describe the project, provide a rough order-of-magnitude estimate or cost range (such as $1-5 million), describe where to obtain plans and specifications, detail the bid time and location and the pre-bid meeting time and location, and explain any unique aspects of the contracting process, such as MBE/WBE requirements. The advertisements will typically run up until bid date. The time allowed for bidding a project will vary on the project size, complexity, and scheduling constraints, though a period of 30 days for projects under $1 million is normal. For a large project, suchas a bridge or airport expansion, the bid time may be several months. See Exhibit 3 for an example of an advertisement for bids. One of the benefits to listing with an agency is that the agency will provide for review of the plan and/or specifications in plan rooms and will maintain the plans/specifications up until bid time. The use of plan rooms saves both the owner and contractors’ time and money. Of course, owners may also mail or deliver the plans and specifications to contractors upon request. An agency may charge the contractor for this service, but the fee sometimes is refundable if the contractor returns the plans in good condition.16 Phases 2. Pre-Bid Meeting On most public projects, to facilitate a better understanding of the nuances of the project, the owner will conduct a pre-bid meeting. Attendance is often mandatory; however, this is at the discretion of the owner. Typically, the contractor’s estimator attends these meetings as the contractor’s representative. The meeting, typically held at the project site, allows the owner to introduce the project, discuss the bidding documents, and often conduct a site walk. At the conclusion of the meeting, there is usually a short question-and-answer period. Most owners require the attendees to sign-in and then send answers to any questions asked at the meeting to all bidders by way of a written addendum so that all bidders are working with the same information in preparing their bids. 3. Addendums Changes made to the bidding documents between the time the documents are issued and the bid date are performed in writing through addendums. The owner generates addendums and then issues them to all bidders. They, henceforth, become part of the bid package and, ultimately, part of the contract. Typically, for an owner to consider a contractor’s bid responsive, the contractor must acknowledge receipt of all addendums. As an owner, it is important when reviewing bids to confirm that the contractor has acknowledged receipt so that the owner can judge all of the bids on equal footing. See Exhibit 4 for an example of a bid addendum. 4. Bid Bonds With most public bids, the bidder is required to include a bid bond or other form of security to ensure that, as the lowest responsible bidder, the bidder/contractor will enter into a contract with the owner. The value of the bond is typically equal to 10% of the bid amount. See Exhibit 5 for an example of a bid bond. Alternately, in lieu of a bid bond, the owner may allow the bidders to provide for a cashiers check or irrevocable letter of credit as bidder’s security. Ifa bidder fails to provide adequate bid security, the bid is non- responsive. 5. Preparation of the Bid The contractor’s estimator or cost engineer prepares the contractor’s bid. The process of developing a bid varies greatly between contractors and contractors often guard the process as proprietary. In general, the processChapter One - involves determining the quantities and types of the various building components by studying the plans and specifications. Based on these quantities, the cost engineer will then estimate the cost of the materials, labor, and equipment needed to construct that particular component. The cost engineer will need to evaluate means and methods, site, schedule, safety, and environmental constraints. Finally, the cost engineer will need to determine profit and overhead, which involves a complex evaluation of risk, market conditions, and past experience. 6. Selection of the Lowest Responsible Bidder The collection of bids for most public projects is at a set time and place with submission of bids in sealed envelopes. Contractor’s bid envelopes are typically time-stamped and late bids are non-responsive. The process is often frenzied, with the contractors having a bid runner arrive at the location prior to the bid opening. The bid runner will then wait on a cell phone up to a few minutes before bid time before entering the final bid amount. The reason for the last minute frenzy is that subcontractors or suppliers, who are often quoting several contractors, will wait until a few minutes before bid time to announce their firm fixed subcontract price, which the contractor needs to determine its price. The owner will often publicly open and read all bids having invited contractors, subcontractors and the general public to attend the opening. However, the awarding agency does not select the lowest responsive bidder until it determines that the contractor has provided all required bid documentation, that the contractor is properly licensed, that the contractor has met the bonding and insurance requirements, that the contractor has met or exceed qualification and experience minimums, and that the contractor has met the project's special requirements, such as MBE/WBE participation. The period for the bid evaluation process may be as long as 30 to 60 days and, during that period, the contractors’ bids remain irrevocable and the bidders cannot withdraw them, with limited exception (ie., clerical error or error in calculation/compiling figures). Once the public agency confirms all of these elements, it must, by law, award the project to the lowest responsive and responsible bidder. Once the lowest responsive and responsible bidder is determined, the awarding agency will then publicly announce and/or publish the results. Award will typically follow the announcement, allowing for a short period for which another bidder may protest the results. See Exhibit 6 for an example of a notice of award.18 Phases After notice of award, the contractor and owner formally execute the contract, and the contractor will need to provide its surety bonds (performance and payment) and insurance as required by the bid documents. The failure or refusal to enter into the contract after notice of award could result in forfeiture of the contractor’s bid bond or other bid security. E, The “Pre-Con” Meeting Once the parties have executed the awarded contract, a pre-construction meeting (commonly referred to as the “Pre-Con”) is scheduled. The purpose of the Pre-Con is to discuss the administration and communication methods for the project to ensure effective coordination and cooperation among the many parties involved in the construction process. The Pre-Con meeting may be at the owner’s offices, at hotel meeting space near the job site, or at the site itself. The Pre-Con meeting participants include the owner, the construction manager (referred to as the CM) if one is being utilized by the owner, the inspector of record, the project manager and superintendent for each contractor, and the project manager and superintendent for each subcontractor. Depending on the scope and size of the construction project and the form of contract, there may be a large number of attendees and participants at the Pre-Con. At the meeting, the owner introduces the various parties and reviews the project systems that the owner will utilize to maintain project control. The control systems provide the means and methods for effective administration of all of the project’s paperwork and allows a communication flow between the owner, contractor, and all the parties involved in the construction process. These project control systems typically involve document control, schedule control, meetings schedules, and include the processes involving certified payroll, daily reports, and submittals. If the owner’s project control systems are effective, they can help to control the time and cost of performance of the construction work for the all the parties. Ii. Construction Phase A. Managing the Process There are many different methods to manage the construction delivery system process. The most common is to contract with a general contractor, also known asa prime contractor, who will then enter into subcontracts withChapter One 19 trade contractors to perform certain parts and then perform the remainder with its own forces. Other forms of delivery include multi-prime, in which multiple trade subcontractors enter into contracts directly with the owner. The owner hires a construction management firm to manage the multiple “prime” contractors. Another form of delivery is a CM at Risk, in whicha CM is hired, who then enters into competitive bid subcontracts, but provides either no guarantee, or a limited guarantee, of the total construction cost. This chapter discusses the management of a typical general contractor delivery process. For efficient and productive management of the construction process, the contractor, owner (or owner’s representative), and designer must establish a communication and decision-making process (i.e., the project control system.) In addition, the contractor, the subcontractors, the suppliers, and the field workers must establish this communication and decision-making process down the chain. The processes established provides the means and methods for design questions to be answered and resolved, progress payments to be processed, unforeseen conditions or changes documented and resolved, schedules managed, quality of work controlled, delays and disruptions documented, and extra or additional work to be added to the contract. 1. RFIs (Requests for Information) In order to document questions and the responses to informational inquiries, the parties use requests for information (RFs). The appropriate decision-maker may not be onsite at the time a question arises and the matter may impact more than one trade. Accordingly, the parties use the RFI form to document and log the communication to permit all effected parties to have knowledge of the inquiry and response. It is not unusual for RFIs to be the genesis of ASIs (architect supplemental instructions), PCOs (proposed change orders), or COs (change orders), but most often they represent clarification of workflow procedures or timing. 2, ASI (Architect Supplemental Instruction) Supplemental instructions from the architect often document clarification of ambiguities, provide detail that the contractor cannot readily ascertain from the drawings, or make minor changes based upon field conditions. The instructions may represent a change that is not significant enough to warrant a change order and does not change the contract sum or contract time. Supplemental instructions may also provide a detailed20 Phases description of the work or particular construction methods that the contractor is to perform or specifications of materials or equipment that the contractor is to use. The contractor typically indicates its acceptance of the instructions by signing the ASI form and returning a copy to the architect. 3. Notice of Delay The contractor documents an act or disruption that the contractor perceives as the cause for a delay or potential delay as a formal notice of delay. A subcontractor that does not arrive on the site to accomplish a task that is on the critical path on a given day may become the subject ofa delay notice. Sanctions for causing a delay are typically included in the general conditions or specifications. However, most often the notice serves to document the party that may eventually be held responsible for the economic costs associated with the delay. 4. Notice of Changed Conditions Although the owner quite often conducts site inspections and test bores in the early preconstruction stage, it is nearly impossible to predict the exact nature of all site conditions that a contractor might possibly encounter, especially when excavating or driving piles. Therefore, when the contractor encounters differing site conditions, such as impenetrable bedrock at a shallow depth, a notice of changed conditions is prepared to document the obstacle encountered. The notice initiates the study of the unanticipated conditions to allow for alternative construction methods or, at least, documents the cause of potential increased costs associated with additional time or material modifications necessitated by the conditions. 5. Notice of Potential Claim If a contractor is unable to obtain satisfaction via the change order process for additional compensation, it may initiate the claims process by filing a notice of potential claim to document the event, changed conditions, or the owner’s actions that may impact the contractor. The notice serves the purpose of notifying the owner and design professionals that that contractor is contemplating making an affirmative claim against the project, yet allows the contractor to continue working on the project to avoid disruption. 6. Changes Changes are modifications of an original contract that effectively change the provisions of the contract, including changes in specifications orChapter One 21 design, method or manner of performance, facilities, equipment, materials, site, and completion of work. Change orders are typically in writing and signed by the owner and construction manager, engineer or architect. Changes may award additional compensation and additional time to complete. ‘An owner may also issue deductive change orders, reflecting the elimination of a scope of work from the project or the incorporation of an alternative material or construction method into the project at a lesser cost. 7. CORs (Change Order Requests/Proposed Change Order) Contractors may communicate a desire for a contract change via a change order request (COR) or proposed change order (PCO) that they submit to the owner, construction manager, or general contractor, depending on which party is originating the request. 8 Change Order Process The construction manger or owner’s representatives evaluate change order requests merit appropriateness. If the construction manager or owner’s representative determines that the referenced work is outside of the scope of the original contract, a change order may be appropriate. Typically, the owner’s representative, architect, project engineer, construction manager, and contractor all approve and sign change orders. 9. Unilateral Changes Unilateral changes are changes that the owner initiates, which require the contractor to perform modified or additional work that the contractor did not request. 10. Unbilled Change Orders/Unfunded Directives Often times, the parties initiate change order work and the contractor completes the work based upon a written directive to proceed or a verbal approval from an owner’s representative. The parties use this method of achieving changes to the work for scheduling and efficiency reasons as it would often be more disruptive to the workflow to stop work and wait for the signing of a formal change order. Unfortunately, absent an executed change order, the contract does not permit the contractor to invoice for the work. The term, therefore, has evolved to recognize the cost incurred to complete change order work that undisputed and that the parties fully22 Phases anticipate will receive approval. For accounting purposes, the revenue for unbilled changes is recognized to match the cost of that work on the contractor’s income statement in the category underbillings. 11. Claims Claims are amounts in excess of the agreed contract price that a contractor seeks to collect from customers for customer-caused delays, errors in specifications and designs, unapproved change orders, or other causes of unanticipated costs. Sometimes called affirmative claims, they typically arise when the owner denies the contractor’s CORs and the contractor is unable to obtain compensation or relief to which it believes it is entitled from the owner. 12. Dispute Resolution Process In addition to contract provisions mandating mediation and arbitration, alternatives to traditional litigation have become more prevalent over the past few years. It is not uncommon on large projects to utilize a dispute resolution panel, entitled DRBs (dispute resolution boards), comprised of owner representatives and independent construction professionals to mitigate the potential harmful effects of contract disputes and resolve the matters quickly at the job site rather than in the court system. 13. Partnering In recent years, contractors and owners have entered into partnering agreements in which the parties agree to communicate throughout the construction project and attempt to resolve differences amicably. Some public agencies have instituted annual excellence in partnering awards in an effort to promote the concept and adherence to minimally disruptive cooperative working relationships. 14, Quality Control Inspection Public officials, owner’s representatives, and design professionals inspect construction work to ensure adherence to contract plans and specifications and appropriate local building codes. Inspectors typically issue notices of defect or non-compliance shortly after inspection, if not on the spot. In rare instances, inspectors have determined the project site to be hazardous or unsafe and have actually ordered a work stoppage.Chapter One 23 Another form of inspection that the owner and project lender conducts focuses on the construction progress and the percentage of completion to determine compliance with periodic payment applications/requisition. 15. Correction of Defects Ifnotified ofa defect revealed during an inspection, the owner typically allows the contractor a reasonable amount of time to cure or correct the defect and proceed with the remainder of the construction. 16. CPM Scheduling for Schedule Control Contractors utilize Critical Path Method network scheduling to show the sequences and interdependences of activities. The critical path is the sequence of activities that indicates the shortest time path for completion of the project and determines the optimum sequence and duration of operations. Activities that the contractor does not need to complete prior to the next critical activity are “off the critical path.” Scheduling has also been referred to by the acronym PERT (Project Evaluation and Review Technique.) Contractors will typically use commercially available computer-based programs such as Primavera P3, Suretrak, and Microsoft Project to prepare their CPM schedules. 17. Updated Schedules Throughout the construction project, as the contractor completes activities at times different from the originally anticipated schedule, the parties may amend the original schedule to reflect the actual timing and status of activities. 18. Delay/Impacted Schedules (Fragnets) Delays to a construction project result from occurrences that impact the schedule or critical path. Delays can result from weather, material delivery delays, labor inefficiencies, and owner influences including unilateral changes. 19. Recovery Schedule A revised schedule may be prepared, which includes overtime or other streamlined procedures, and that represents the contractor’s best effort to24 Phases recover from the delay and still complete the project on time within the originally anticipated completion date. 20. Budget Control Construction cost accounting is critical to contractors’ financial success. Not only should the parties account for the actual costs by project, but they should also provide a comparison to original budget to facilitate tracking of potential cost savings and recognition of cost overruns — preferably in time to react and apply corrective measures. The contractor should reflect change orders, changed conditions, and changed circumstances such as material price variances that cause fluctuations in anticipated contract costs, updated cost estimates, and budgets throughout the course of the project. Using available scheduling and contractor accounting software programs, which include budgeting modules, contractors can easily compare actual cost accumulation and time consumption to their original estimates. Proper cost recognition and projected completing cost estimates are critical to the contract revenue recognition under the percentage of completion cost-to-cost. method of accounting. | Adequate and comprehensive cost accounting can also provide contractors with a historical cost perspective when estimating new projects. 21. Payment Process Because of the long-term nature of most construction projects, contractors would suffer undue financial and cash flow hardship if the owner withheld payment until completion of the work. Contractors typically must pay for labor weekly and compensate vendors for materials delivered to the site. Accordingly, the parties use progress payments to compensate contractors for work completed within incremental, often monthly, periods of the project. This practice typically provides sufficient cash flow to the contractor to cover direct costs and overhead incurred throughout the course of the project. 22, Monthly Payment Applications/Requisitions/Estimates Also referred to as payment estimates, monthly construction invoicing is typically on a percentage-of-completion basis by contract line item. Contractors estimate the cumulative progress to date on each line item and then submit estimates to the owner’s representative for review. After modification, if appropriate, and approval, the owner issues payment for theChapter One 25 current portion of the contract amount as determined by the total completed to date, less prior payments. 23, Releases As a condition precedent to receipt of progress payments, contractors are often required to provide releases that constitute signed statements that the contractor has completed all work and has paid all subcontractors, suppliers, and laborers for costs incurred during that pay period. The intent is to bar future claims for additional compensation for the work during the period. Partial releases coincide with progress payments and, upon final payment of contract funds, it is common to obtain full and final release. 24, Retainage/Retention In addition to releases, another form of protection to the owner is the withholding of retainage, also called retention. Typically, retainage is S— 10% of the amount of the contract. The owner withholds retainage in accordance with the contract provisions until the owner accepts the work. B. Activities Before Construction Starts 1. Submittals Before the contractor performs any actual building, the contractor complies with the contract-specified submittal process. The submittal process outlined in the specifications will require the contractor to submit detailed information about the means, methods, and materials proposed by the contractor for use on the project. The designer and owner review the submittals to determine whether the selected materials or methods meet with the contract’s intent. Because the contractor’s submittals provide important details to the owner, requiring owner’s approval, the submittal process should occur very early during the construction phase of the project so as not to delay construction. For example, a contractor installing cabinets and countertops would submit a sample of the intended countertop material, as well as a shop drawing indicating how the hardware will attach to the cabinetry. The owner reviews the quality, texture, color, size, and finish of the submittal and will approve or reject the submittal based on the criteria of the contract specifications and the plans. If the designer or owner’s representative rejects any submittal, the contractor must find different materials or revise methods of installation to meet the contract’s specifications.26 Phases Typical contractor submittals include: ‘¢ Shop Drawings (detailed fabrication or construction drawings of specific items of a project) e Catalog Cut Sheets (detailed product information copied from the manufacture’s catalog) e Samples (small pieces of the actual proposed material, for example a single 4 inch x 4inch tile) e Mock Ups (typically, a full size sample to demonstrate what the final installed product will look like; i.e. a 2 feet x 2 feet board, with tiles and grout installed, or, if required, a full-size demonstration of the exterior finishes, (See photo example.) A contractor must also submit many other documents to outline the contractor’s overall plan, most of which must receive owner approval. These submittals typically include: e Baseline Schedule (the contractor’s original intended schedule for performance, usually presented in a chart form) e Schedule of Values (the contractor’s total contract value broken down per the schedule or divisions of work) * Safety Plan (the contractor's methods for complying with safety laws and regulations, such as OSHA (Occupational Safety and HealthChapter One 27 Administration) regulations, along with any special safety requirements of the owner) e Quality Control Plan (a written plan that outlines the contractor’s method of inspection and assuring the work installed meets the contract requirements). Depending on the type of project, submittals may also include special plans for items such as a storm water erosion protection, demolition, erection, or traffic control. 2, The Notice to Proceed After the parties execute the contract, hold the Pre-Con meeting, establish the project control systems, and start, if not complete, the submittal process, the owner provides a written notice to proceed to the contractor. This notice to proceed, which places the contractor on notice to commence its scope of the construction work, generally requires the contractor to mobilize to the project site within a set amount of time, such as within ten days from the date of the notice, and to commence performance. The notice to proceed is the trigger that starts the clock on the contractor’s time for completion as specified in its contract. For example, if the contract time for completion is 450 calendar days, the contractor has 450 calendar days to complete its scope of work from the date stated in the notice to proceed. Subject to excusable delay and extensions of contract time, if the contractor fails to complete within the contract's specified time, the owner may assess liquidated damages or actual delay damages, depending upon the terms of the contract.28 Phases 3. Ground Breaking Ceremonies Customarily, public works construction projects commence with a ceremonial first turn of the spade by appropriate politicians such as the mayor, congressperson, or governor. Owner, architect, and contractor executives, and, of course, the press attend. Politicians often utilize the groundbreaking ceremony to promote awareness of a_ particular redevelopment effort or the results of a successful public works funding bond measure. Quite often, the “golden shovel” never actually digs dirt, but is merely utilized as a photographic prop and retained by one of the parties as a memento of the occasion. Historically, in Pacific Island societies, a blessing by the local kahuna, or priest, occurred at groundbreaking. The blessing, based upon the religious belief that construction accidents will be minimized and a structure is unlikely to fail if the land upon which it is built is blessed, is still popular in Hawaii today. Similar to the golden shovel ceremony, officials from the project owner, architect, and contractor pose for the press with o’o (digging sticks) to mark the site of the new construction. C. Key Construction Milestones There are certain milestones that apply to general building construction to identify key stages of the construction process, from mobilization through the finish stage. The key building milestones are below. (Note:Chapter One 29 Roadways, canals, hydroelectric dams, and bridges have their own unique measurements of partial completion.) 1. Mobilization After receiving a notice to proceed, but prior to actual construction, a contractor and its subcontractors mobilize resources and physically occupy the construction site. Depending upon the nature of the project, the contractor may need to transport heavy equipment onto the site. The contractor relocates its labor forces, establishes temporary housing for them, secures job site trailers and sanitary facilities, and connects temporary utilities. | Mobilization can represent a significant investment that contractors often itemize as a line item in the bid to provide compensation for costs incurred that may otherwise be perceived as not contributing to the completion percentages. 2. Out of Ground With few exceptions, construction occurs from the ground up. Site clearing and grubbing occurs first, followed by site excavation that may involve cutting and filling to move dirt from high elevations to lower elevations. After final grading is achieved and the project layout and staking occurs, piles are drilled (if appropriate), underground utilities are installed, and forms are constructed and the project is made ready for the concrete foundation pour. The work may use masonry in the construction of foundation walls, particularly on sloped sites and in the construction of underground parking or basements. After the contractor constructs the foundations, it pours the concrete slabs—referred to as “flat work.” Quite often, plumbing and utility conduit is embedded within the concrete slab. Layout of these items is critical, because relocation after the pour is difficult and expensive, at best. Also embedded in the concrete are reinforcing steel bars, or screen, and anchoring devices such as j-bolts to tie the walls to the foundation. Afier the foundation is in place, the project is “out of ground” and construction of structural members begins. These may range from simple wood or lightweight steel studs in homes or small buildings to heavy steel I- beams for larger structures. Structural members are the “skeleton” of the building, upon which all other pieces are supported or hung.30 Phases 3. Topping Out The placement of the highest structural member, roof truss, or rafter is “topping out.” At that point, the building’s structural framing is complete and the exterior enclosure, window installation, roofing, interior framing, rough plumbing, and rough electrical may begin. Topping out may be signified by the placement of a Christmas tree on the apex of the structure during holiday periods. The evergreen may symbolize that the job went up without the loss of life, or it may be a good luck charm for future occupants. Another popular adomment, especially at union labor projects, is the United States flag. The flag may signal the use of federal funds or it may merely suggest patriotism. Similar to ground breaking, responsible public officials, and finance, architectural, and construction executives may gather at the site with the press for a “topping out” photographic session and party. Urban office or residential high-rise projects may include a topping out party for all persons involved in the project, with food, beverages, and entertainment on the penthouse floor of the structure after curtain wall enclosure and elevator installation, but prior to interior finishes. The event also has a marketing purpose, and as the guest list often includes real estate agents and brokers to whom the owner wishes to expose the property.Chapter One 31 4. Weather Tight A structure is “weather tight” upon the installation of the roof and exterior siding or curtain wall and all doors and windows. Most likely, exterior trim, lighting, finish masonry, painting, and perhaps even roof shingles are not yet complete. However, the structure is weather or water tight sufficiently to allow interior work to commence on electrical and HVAC (heating, ventilation, and air-conditioning) systems without posing a threat to safety of the workers or interior surfaces, such as drywall, cabinetry, and wood trim that may be subject to damage by water, wind, and direct sun, 5. Ready to Close-In This stage is often referred to as completion of rough-in. All framing is completed and inspected, rough electrical such as conduit, boxes, and buried fixtures is installed; rough plumbing such as water and waste are installed; communication systems such as telephone, computer, and cable are installed, and HVAC ducting inside the walls and ceiling are installed. Often owners require a rough-in inspection and sign-off at this time. ‘These tasks typically represent a relatively large amount of work that may translate into significant time and cost depending upon the complexity of the project. A hospital or high-technology manufacturing facility will generally contain more systems and represent a greater percentage of the total project cost in this area than a tilt-up warehouse, for example. Upon completion of this stage, the contractor can close in the interior walls, which typically involves the installation of insulation and or drywall. Coordination is most critical at this time. With numerous trades working on the site at the same time, it is not uncommon, for example, to have plumbers interfering with electricians and mechanical subcontractors, or vice versa, This phenomenon is known as “stacking of trades” and is often included in a subcontractor claim for additional compensation due to delay damages. 6. Finish Stage After close-in and drywall fastening to the interior studs, the contractor typically tapes and textures the walls and prepares them for painting. Following painting of the interior wall surfaces, next comes the installation of finish carpentry, cabinets, wood trim, electrical fixtures, outlets, switches, HVAC registers, and plumbing fixtures. Typically, the contractor32. Phases installs the interior finish flooring last to avoid damage from construction traffic. Iv. Post-Construction Phase A. Completion of the Project At the finish stage milestone, the project moves into the post- construction phase, where the project moves towards its end completion. The completion of the project will not occur at a single point in time. Rather, it is a process unto itself, with the completion of numerous project management and contract administration processes, along with performance of any remaining physical work items. This completion stage is often called the closeout process, consisting of its own key milestones. The first completion milestone is “substantial completion,” which is concurrent or followed by “certificate of occupancy.” The final milestone is “final completion.” The stage between substantial completion and final completion is the punch-list stage. The time following final completion is the “warranty period.” Each milestone has specific contractual significance in the construction process and, as such, a formal certification process usually accompanies each milestone. The details of these key completion milestones and their interim phases are below. B. Substantial Completion The contract usually defines “substantial completion,” but some state statutes governing works of improvement also defined it. The AIA documents define substantial completion as occurring when construction is sufficiently complete in accordance with the contract documents so that the owner can occupy or utilize the work or designated portion thereof for its intended use. (See AIA Document A201 — Exhibit 7.) Under the AIA documents, the architect determines the date of substantial completion by issuing a certificate of substantial completion. At the point of substantial completion, the contractor, owner, and/or architect conduct an inspection to determine a list of items, the punch list, for completion or correction before final completion. Upon completion of the punch-list items, the contractor then requests final inspection. The owner performs the final inspection to determine if the contractor has completed all of the punch-list work to the owner’s satisfaction.Chapter One 33 C. Certificate of Occupancy A certificate of beneficial occupancy or certificate of occupancy is a document issued by a governmental authority certifying that all or a designated portion of a building complies with the provisions of applicable statutes and regulations, and permitting occupancy for its designated use. Although receipt of the certificate of beneficial occupancy is a separate milestone from substantial or final completion, the contract sometimes ties it to achieving either substantial or final completion. D. Submission of Closeout Documents The contractor submits its final project closeout documents either concurrently with final completion or soon after. The contract documents define the project closeout documents and typically include the following: 1. As-Built Drawings Drawings prepared by the contractor that incorporate all change orders and modifications to make a final set of plans, depicting dimensions, locations, and materials as actually installed by the contractor. These are often call “red-lines” because the method often used to document changes and dimensions on an as-built is to physically write over the contract documents with a red pencil. 2, Operation and Maintenance Manuals (O&Ms) These are manuals supplied by the manufacturers of all equipment installed and are assembled into a single binder by the contractor to be provided to the owner. 3. Product Warranties Product warranties depend on the manufacturer of the product. The contractor sometimes submits these warranties with submittals at the beginning of the project or at the close-out phase. 4, Labor Warranties Contractors provide labor warranties and generally state that they have performed the work in a good and workmanlike manner according to the plans and specifications. The owner and general contractor should obtain a34 Phases warranty/guarantee from subcontractors and suppliers warranting that all materials and equipment furnished under the subcontract, field work orders, and/or change orders will be new, unless otherwise specified, and that all work will be of quality, free from defects of any kind and in strict conformance with the requirements of the project documents, subcontract agreement, and all building codes. The subcontractor/supplier warrants to the owner and general contractor that, for a period, usually one year following the date of punch list completion, the subcontractor/supplier agrees to repair or replace any or all work together with any work or property that it damages in so doing, which is defective in materials or workmanship. The subcontractor/supplier warranty is in addition to any other warranties that may be available to the owner and general contractor froma manufacturer or otherwise. It usually does not modify nor limit the rights or actions that the owner or general contractor may otherwise have against the subcontractor/supplier by law, statute, or in equity. 5. Special Instructions and Trainings The contractor is required to conduct training for the owner’s operation staff as to the operation and maintenance of mechanical, electrical, fire alarm, security, and other building systems. 6. System Start-Up and Testing The contractor also does system start-up and testing as part of the project closeout. This system start-up and testing includes all activities needed in order to ensure that systems are operating as specified. E. Attaining Final Completion The “final completion” of a project constitutes occupation of a work of improvement by the owner accompanied by a cessation of labor; the acceptance of the work of improvement by the owner; or the completion of all work called for by the contract documents, including the punch list. Remaining corrective or repair work does not prevent the “final completion” of the project; however, if the project lacks any items of significance called for by the contract documents, suchas painting, fixtures, or landscaping, then the project has not reached “final completion” until those items have been furnished. In many states, the owner files or records a notice of completion. In California, the owner records the notice of completion in the office of the county recorder of the county in which the site is located. If recordedChapter One 35 properly, the notice of completion serves to shorten the time deadlines for contractors to serve stop notices, record mechanic’s liens, serve notices to sureties, and file suit on the stop notices, mechanic’s liens, and payment bonds, Other jurisdictions have similar provisions and notice requirements, or provide alternative methods for defining the time of project completion, such as through a notice of cessation, such as is provided for under California law. Once the contractor achieves all of the completion milestones and final completion, whether determined through the issuance of an architect’s certificate or by statutory definition, the responsibility for security, maintenance, utilities, insurance, and similar items shifts from the contractor to the owner. The owner’s payment of retainage to the contractor is also linked to either achieving substantial or final completion. Additionally, the warranty periods and, in some instances, job rights’ periods, such as stop notices and claims on payment bonds, begin to run based on achieving either substantial or final completion, or receipt of certificate of occupancy. The well-written construction contract will outline the conditions for meeting the completion milestones, and will define the rights or obligations that each milestone triggers. 1. Retainage/Retention Payment and Contract Reconciliation Retainage is an amount the owner or general contractor withholds from each of the payments due. The owner or general contractor does not pay the contractor or subcontractor until a specified time, usually upon achieving either substantial or final completion of the project. Almost all construction contracts provide for retainage and the purpose of retainage is to preserve a fund of money to be available to assure final completion and to correct defects in work. Retainage is an added incentive to complete the work on a timely basis. The owner can use this fund of money to satisfy unexpected claims that may arise or it may apply it against contractor default. Generally, an owner withholds an amount of retainage, typically S-10%, from the amount owed to a contractor on each progress payment in order to guarantee the contractor’s completion of the work. The time for the owner or contractor to pay retainage to a contractor or subcontractor is determined by contract and in accordance with applicable statutes. When the owner releases the retainage upon achieving substantial completion, it will nonetheless retain a portion of the retainage to cover any incomplete or defective items described on the punch list.36 Phases 2, Final Contract Reconciliation The owner or contractor performs the final contract reconciliation to calculate the final contract price. It includes a final determination as to change orders, final adjustment for unit price items or allowances, and final adjustments for backcharges from the owner for liquidated damages, defective work, or other credits. 3. Unit Price Adjustments For unit price contracts, the contractor has agreed to specified unit prices for specific items of material and labor. Parties use these contracts for construction projects for the construction or installation of one or a few specified materials, such as laying pipelines or the construction of sidewalks. The parties make a final quantity adjustment at the end of the project so that the final total contract price becomes the sum total of the number of “units” of that material and labor used on the project. 4, Allowances Many contracts provide “allowances” as part of the contract price. An allowance is an amount that the contractor has allocated to a particular item, or portion of the work, for which it did not provide a detailed bid or estimate. The amount specified is the maximum that the contractor commits to spend for the item. If the item costs more, the owner must pay more. In other words, if the actual cost of providing or performing that work exceeds the allowance, the parties will increase the lump sum or guaranteed maximum price of the contract by the overage. 5. Liguidated Damages These are time-related charges for failure of the contractor to achieve certain predetermined milestone dates as defined in the contract. 6. Defective Work Backcharges Most contracts give the owner the option to accept a credit for unacceptable or defective work in lieu of having the contractor repair the work. This option is usually implemented where it is determined that repair of the defect will cause more harm then if it is left alone or if it is simply economically unreasonable to perform the repair.Chapter One 37 F, Final Payment and Final Releases Before the owner will issue the final certificate for payment, the owner typically requires the contractor to provide proof that it has paid all invoices owed. The contractor must submit its payment applications/requisitions to the owner ona timely basis and include all the work performed through the date of the invoice. Many subcontractors and suppliers are thinly capitalized and depend upon a timely and steady stream of payments in order to meet payroll and procure materials. Therefore, any disruption to this income could lead to a work stoppage, payment bond claims, stop notices, mechanic’s liens, and, in some cases, bankruptcy or project abandonment. The contractor must promptly disperse payments received from the owner. When the contractor pays subcontractors and suppliers for their work, the prudent contractor obtains releases/waivers of the subcontractors and suppliers’ job rights, including bond claims, in exchange for payment. Generally, subcontractors and suppliers execute a conditional final release and send to the contractor with the final billing. Subcontractors and suppliers execute unconditional final releases once the contractor makes final payment and the subcontractor or supplier receives that payment. The release forms are often statutory. G. Rights of Unpaid Parties 1. Stop Notices Some jurisdictions may provide unpaid contractors, subcontractors or suppliers with “stop notice” rights to stop or “freeze” construction funds before they are disbursed by giving a notice of claim to the person holding the funds, typically the project owner or lender who is financing the project. Contractors need to obtain stop notice releases from any subcontractor or supplier who served a stop notice in order to obtain final payment from the owner. 2, Mechanic’s Liens Virtually all states provide protection for contractors, subcontractors, suppliers, and laborers on private works projects in the form of mechanic’s liens. An unpaid contractor, among others, can record a mechanic’s lien against the project’s real property. Thereafter, the mechanic’s lien claimant can file an action to foreclose the mechanic’s lien if not paid.38 Phases 3. Claims on Payment Bonds Publicly owned property is not subject to mechanic’s liens. Accordingly, the law gives protection to those who furnish labor and materials for public construction projects either through stop notices or public works payment bonds, either under the Federal Miller Act, 40 U.S.C. § 3131 et seq. (previously § 270 et seq.), on federal projects or under state “Little Miller Acts” or public works payment bond statutes on state- or local-owned projects. a. State “Little Miller Acts” State “Little Miller Acts” often mirror the Federal Miller Act in providing protection to subcontractors, suppliers, and laborers on state and local public work projects. Because of the similarity of terms and provisions, this discussion will focus primarily on the Federal Miller Act. However, in practice, a particular state’s Little Miller act may contain specific prerequisites for asserting a claim on a payment bond in that state. b. The Federal Miller Act The Federal Miller Act, 40 U.S.C. § 3131, et seq., requires the general contractor on a federal construction project to furnish a payment bond guaranteeing payment to subcontractors, suppliers, and laborers if the general contractor defaults. The amount of the payment bond furnished by the general contractor is equal to the contract price unless the contracting officer awarding the contract determines, in writing, that a payment bond in that amount is impractical upon which the contracting officer can set an alternative amount. A Miller Act payment bond only covers the following parties: (1) material suppliers who contract with the general contractor; (2) first-tier subcontractors who contract with the general contractor; and (3) second-tier subcontractors and material suppliers who contract with first-tier subcontractors. 40 U.S.C. § 3131(a)(2); see also Clifford F. MacEvoy Co. v. United States, 322 U.S. 102 (1944).) Miller Act payment bonds do not cover material suppliers who contract with other material suppliers. A claimant need not prove actual incorporation of materials. United States ex rel. Lanahan Lumber Co. v. Spearin, Preston & Burrows, Inc., 496 F.Supp. 816 (M.D. Fla. 1980). A claimant may recover for all materials it supplied when it has a good-faith belief that the contractor used the materials on the project or that the contractor intended to use the materials on the project. United States ex rel. Balzer Pacific Equipment Co. v. Fidelity & Deposit Co., 895 F.2d 546 (9th Cir. 1990).Chapter One 39 The Miller Act provides that a claimant not in privity with the general contractor must give written notice by registered mail to the general contractor of any non-payment, including the amount claimed and the name of the party to whom the claimant furnished the materials. The claimant must give this notice within 90 days from the date on which it last furnished the labor and materials. 40 U.S.C. § 3133(b)(1). A claimant must institute legal action against the Miller Act payment bond within one year from the date it last performed labor or supplied materials. 40 U.S.C. § 3133(b)(4). Failure to comply strictly with statutory deadlines can result in the loss of bond rights. Jurisdiction and venue for actions on Miller Act payment bonds lay exclusively in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere, 40 U.S.C. § 3133(b)(3)(B). H. Dispute Resolution By the time the project reaches final completion, disputes may exist between the owner and contractor as to the amount of final payment due to the contractor. To resolve these post-construction disputes, the parties often turn to, or the contract requires that they use, a form of alternative dispute resolution prior to, or in lieu of, litigation. Many forms of alternative dispute resolution are available and are finding favor in the construction industry. These include arbitration, mediation, and partnering. 1. Arbitration Binding arbitration is a method of settling claims or disputes between parties to a contract, outside of the litigation process, where an arbitrator or panel of arbitrators hears the evidence and renders a decision. When the parties arbitrate their disputes, typically it is because the contract requires arbitration. Arbitration tends to utilize decision-makers who are involved in and familiar with the construction process and construction law. Its goal is to move more quickly than the judicial system and to be less costly than litigation. Sometimes it achieves its goal; sometimes it does not. Because arbitration is binding, the parties waive their right to appeal. The parties to arbitration also waive their right to a jury trial. In addition, the arbitration provision in the subcontract sometimes forces subcontractors with small claims into lengthy multi-party arbitration.40 Phases 2. Mediation Mediation is a method of dispute resolution involving a neutral third party who tries to assist the disputing parties in reaching a mutually agreeable solution. However, the mediator’s decision is not binding on the parties and one party may reject the mediator’s input and assistance and decide to utilize an alternative dispute resolution method. 3. Partnering Partnering involves the parties to the construction project agreeing to be involved in a process that starts before the work begins. Generally, a neutral third party leads the process with a goal of avoiding problems or minimizing the number and severity of problems