Construction Contract Claims Changes

and Dispute Resolution 3rd Edition Paul

Levin
Visit to download the full and correct content document:
https://textbookfull.com/product/construction-contract-claims-changes-and-dispute-res
olution-3rd-edition-paul-levin/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

International Dispute Resolution Vesna Lazi■

https://textbookfull.com/product/international-dispute-
resolution-vesna-lazic/

Civil Dispute Resolution Balancing Themes and Theory

Willis

https://textbookfull.com/product/civil-dispute-resolution-
balancing-themes-and-theory-willis/

The new regulatory framework for consumer dispute

resolution 1st Edition Cortes

https://textbookfull.com/product/the-new-regulatory-framework-
for-consumer-dispute-resolution-1st-edition-cortes/

Law Technology and Dispute Resolution The Privatisation

of Coercion 1st Edition Riika Koulu

https://textbookfull.com/product/law-technology-and-dispute-
resolution-the-privatisation-of-coercion-1st-edition-riika-koulu/
The NEC4 engineering and construction contract : a
commentary Third Edition Eggleston

https://textbookfull.com/product/the-nec4-engineering-and-
construction-contract-a-commentary-third-edition-eggleston/

Ombudsmen at the Crossroads: The Legal Services

Ombudsman, Dispute Resolution and Democratic
Accountability 1st Edition Nick O'Brien

https://textbookfull.com/product/ombudsmen-at-the-crossroads-the-
legal-services-ombudsman-dispute-resolution-and-democratic-
accountability-1st-edition-nick-obrien/

Recommended contract practices for underground

construction Second Edition Sarah H. Wilson (Editor)

https://textbookfull.com/product/recommended-contract-practices-
for-underground-construction-second-edition-sarah-h-wilson-
editor/

Educational Research Discourses of Change and Changes

of Discourse 1st Edition Paul Smeyers

https://textbookfull.com/product/educational-research-discourses-
of-change-and-changes-of-discourse-1st-edition-paul-smeyers/

Construction Financial Management 3rd Edition S. L.

Tang

https://textbookfull.com/product/construction-financial-
management-3rd-edition-s-l-tang/
Construction
Contract Claims,
Changes, and
Dispute Resolution
Third Edition
Edited by Paul Levin
Foreword by Islam H. El-adaway, Ph.D.
Construction Contract Claims, Changes,
and Dispute Resolution
 Other Titles of Interest

Interpreting Construction Contracts: Fundamental Principles for Contractors, Proj-

ect Managers, and Contract Administrators, by H. Randolph Thomas, Ph.D., P.E.;
and Ralph D. Ellis, Ph.D., P.E. (ASCE Press, 2008). Discusses the most troublesome
contract clauses and presents rules to construe them so as to avoid disputes that must
be resolved in court.

Managing Gigaprojects: Advice from Those Who’ve Been There, Done That, edited
by Patricia D. Galloway, Ph.D., P.E.; Kris R. Nielsen, Ph.D., J.D.; and Jack L.
Dignum. (ASCE Press, 2012). A stellar group of financial, legal, and construction
professionals share lessons learned and best practices developed from working on
the world’s biggest infrastructure construction projects.

Preparing for Design-Build Projects: A Primer for Owners, Engineers, and Contrac-
tors, by Douglas D. Gransberg, P.E.; James E. Koch, P.E.; and Keith R. Molenaar, P.E.
(ASCE Press, 2006). Covers the basics of developing design-build requests for
qualification and requests for proposals.

Productivity Improvement for Construction and Engineering: Implementing Pro-

grams that Save Money and Time, by J.K. Yates, Ph.D. (ASCE Press, 2014). Focuses
on investigation and analysis techniques that engineering and construction firms can
use to support the implementation of productivity improvement programs.

Project Administration for Design-Build Contracts: A Primer for Owners, Engi-

neers, and Contractors, by James E. Koch, Ph.D., P.E.; Douglas D. Gransberg,
Ph.D., P.E.; and Keith R. Molenaar, Ph.D. (ASCE Press, 2010). Explains the basics of
administering a design-build project after the contract has been awarded.

Public-Private Partnerships: Case Studies on Infrastructure Development, by

Sidney M. Levy. (ASCE Press, 2011). Demystifies public-private partnerships as
an innovative solution to the challenges of designing, financing, building, and
operating major infrastructure projects.
Construction
Contract
Claims,
Changes,
and Dispute
Resolution
Third Edition

EDITED BY

PAUL LEVIN, PSP

Library of Congress Cataloging-in-Publication Data
Names: Levin, Paul, 1946- editor.
Title: Construction contract claims, changes, and dispute resolution/edited by Paul Levin;
forword by Islam H. El-Adaway, PH.D.
Description: Third edition.|Reston, Virginia: American Society of Civil Engineers, 2016.
Identifiers: LCCN 2015039204 (print)|LCCN 2015040371 (ebook)|ISBN
9780784414293 (print : alk. paper)|ISBN 9780784479698 (ebook)|ISBN
9780784479704 (epub)|ISBN 9780784479698 (pdf)
Subjects: LCSH: Construction contracts—United States. | Dispute resolution
(Law)—United States.
Classification: LCC KF902.C65 2016 (print)|LCC KF902 (ebook)|DDC 692/.8—dc23
LC record available at http://lccn.loc.gov/2015039204

Published by American Society of Civil Engineers

1801 Alexander Bell Drive
Reston, Virginia 20191-4382
www.asce.org/bookstore | ascelibrary.org

Any statements expressed in these materials are those of the individual authors and do not
necessarily represent the views of ASCE, which takes no responsibility for any statement made
herein. No reference made in this publication to any specific method, product, process, or
service constitutes or implies an endorsement, recommendation, or warranty thereof by ASCE.
The materials are for general information only and do not represent a standard of ASCE, nor are
they intended as a reference in purchase specifications, contracts, regulations, statutes, or any
other legal document. ASCE makes no representation or warranty of any kind, whether express
or implied, concerning the accuracy, completeness, suitability, or utility of any information,
apparatus, product, or process discussed in this publication, and assumes no liability therefor.
The information contained in these materials should not be used without first securing
competent advice with respect to its suitability for any general or specific application. Anyone
utilizing such information assumes all liability arising from such use, including but not limited
to infringement of any patent or patents.

ASCE and American Society of Civil Engineers—Registered in U.S. Patent and Trademark
Office.

Photocopies and permissions. Permission to photocopy or reproduce material from ASCE pub-
lications can be requested by sending an e-mail to permissions@asce.org or by locating a title in
the ASCE Library (http://ascelibrary.org) and using the “Permissions” link.

Errata: Errata, if any, can be found at http://dx.doi.org/10.1061/9780784414293

Copyright © 2016 by the American Society of Civil Engineers.

All Rights Reserved.
ISBN 978-0-7844-1429-3 (print)
ISBN 978-0-7844-7969-8 (PDF)
ISBN 978-0-7844-7970-4 (EPUB)
Manufactured in the United States of America.

23 22 21 20 19 18 17 16 1 2 3 4 5
Contents

Foreword xiii
Preface xv
Acknowledgment xvii
Contributors xix

Chapter 1. Introduction ............................................................................1

Paul Levin
1.1. A More Rounded Approach to
Construction Disputes 1
1.2. Construction Claims—Background, Outlook, and
Approach 1
1.3. Definition of a Claim 3
1.4. The Purpose of This Book 3
1.5. Public Contracts 4
1.6. Private Contracts 4
1.7. Beyond the Contract—Principles
of Construction Law 5
1.8. Policies and Procedures for Administration 6
1.9. New Format for the Third Edition 8
1.10. Review of Chapters 8
1.11. Owners, Designers, and Their Representatives 11
Endnotes 11

Chapter 2. Claim Identification and Notification.............................. 13

Joseph A. McManus Jr. and Karlee Starr Blank
2.1. Definition of a Claim 13
2.2. Claims Consciousness 14
2.3. Two Elements of Every Claim 14
2.4. Identification and Entitlement 15

v
vi Contents

2.5. The Quantum Element of a Claim 21

2.6. Notification of Claims and Change Orders 22
2.7. Time Requirements 23
2.8. Late Notice 26
2.9. Notification—Factors Involving Contract
Owners 27
2.10. Federal Contracts and the Contract
Disputes Act 28
2.11. Appeal of a BCA or COFC Decision
to the United States Court of Appeals
for the Federal Circuit 39
2.12. Alternative Dispute Resolution and
Federal Construction Contracts 40
2.13. Conclusion 40
Appendix 2A: EJCDC C-700 Standard
General Conditions of the Construction Contract,
Articles 11 and 12 41
Appendix 2B: Appealing the CO’s Final Decision to the
Agency Board of Contract Appeals 48
Appendix 2C: Appealing the CO’s Final Decision to the
Court of Federal Claims 51
Appendix 2D: Appealing a BCA Decision or Court of
Federal Claims Judgment to the Federal Circuit 52
Appendix 2E: Alternative Dispute Resolution in the
Boards of Contract Appeals, Court of Federal
Claims, and Federal Circuit Court 54
Endnotes 61

Chapter 3. Differing Site Conditions .................................................. 69

Marilyn Klinger
3.1. Introduction 69
3.2. Differing Site Conditions Clauses 70
3.3. Two Types of Differing Site Conditions 71
3.4. Type One Conditions—Examples 73
3.5. Type Two Conditions—Examples 76
3.6. Forces of Nature 77
3.7. Investigation of the Site and the Plans
and Specifications 77
3.8. Summary and Checklist 83
 Contents vii

Appendix 3A: Site Investigation Report Form 85

Endnotes 87

Chapter 4. Interpretation and Requirements of Contract

Specifications ........................................................................ 91
Brian W. Bennett and Jonathan M. Blocker
4.1. Introduction 91
4.2. Rules of Contract Interpretation 92
4.3. Defective Specifications 98
4.4. Duty to Seek Clarification 103
4.5. Duty to Inform 106
4.6. Duty to Proceed 107
4.7. Duty to Inspect 108
4.8. Conclusion 110
Endnotes 111

Chapter 5. Construction Project Delays and Time Extensions .... 117

Thomas D. Fertitta, Anthony L. Nedinsky,
and Jeffrey G. Gilmore
5.1. Introduction 117
5.2. The Critical Path and Float 117
5.3. Types of Delay 118
5.4. When Does a Delay Occur? 121
5.5. Causes of Delay 121
5.6. Suspension of Work 124
5.7. Disruption, Inefficiencies, Loss of Productivity,
and Loss of Learning Curve 124
5.8. Delays Due to Defective Work Leading
to Rework Delays 125
5.9. Typical Owner-Caused Delay 126
5.10. Typical Contractor-Caused Delay 126
5.11. Delays on Multiprime Contracts 127
5.12. Concurrent Delay 127
5.13. Pacing Delays 129
5.14. Delay Documentation, Measurement,
and Proof 129
5.15. Liquidated Damages 132
5.16. No Damages for Delay Clause 133
5.17. Remedies for Project Delay 134
viii Contents

5.18. Conclusion 134

Endnotes 135

Chapter 6. Acceleration and Mitigation of Project Delays .......... 139

Christopher M. Burke and Michael J. Harris
6.1. Introduction 139
6.2. Mitigation 139
6.3. Acceleration 142
6.4. Proving Delays, Time Extensions,
and Acceleration 146
6.5. Recovery Schedules and
Schedule Acceleration 147
6.6. Acceleration Costs 148
6.7. Conclusion 149
Appendix 6A: Overtime Statistics 150
Endnotes 152

Chapter 7. Records and Documentation .......................................... 153

Robert M. Freas and W. Wesley Grover III
7.1. Introduction 153
7.2. Types of Records 154
7.3. Bid, Estimate, and Budgets 154
7.4. Time Cards 155
7.5. Job Cost Accounting System 155
7.6. Production Reporting 157
7.7. Material and Delivery Receipts 158
7.8. Schedules and Progress Reporting 158
7.9. Cash Flows 159
7.10. Correspondence, Transmittal, and Submittal
Logs 159
7.11. Daily Reports 160
7.12. Photographs and Videos 162
7.13. Special Forms for Change Orders and Claims 163
7.14. Periodic Reviews 165
7.15. E-Mail and Social Media 166
7.16. Document Management 167
7.17. Conclusion 167
Appendix 7A: Daily Production Report
Form (Sample Form) 168
 Contents ix

Appendix 7B: Job Report Summary of Effect

of Disruptions and Interference (Sample Form) 169
Appendix 7C: Change Order Initiation Form 170
Appendix 7D: Change Order Status
Report (Sample Form) 172
Appendix 7E: Change Order Status Report
Cover Letter 173
Endnotes 174

Chapter 8. Use of Project Schedules and the Critical

Path Method in Claims .................................................... 175
John C. Livengood
8.1. Introduction 175
8.2. Use of CPM in Claims Analysis 179
8.3. Pitfalls to Avoid in CPM Claims Analysis 180
8.4. Development of the Baseline 182
8.5. Float 184
8.6. Float—Early Completion 184
8.7. Concurrent Delay 186
8.8. Three Types of Acceleration 188
8.9. Schedule Analysis Techniques for
Claims Support 189
8.10. Contemporaneous Understanding of
Criticality 194
8.11. Comparison Chart of CPM Analysis Methods 195
8.12. Other Methods 195
8.13. Expert Schedule Analysis 195
8.14. Conclusion 197
Endnotes 197

Chapter 9. Impact on Labor Productivity from

Claims and Change Orders ............................................ 201
William Ibbs and Paul L. Stynchcomb
9.1. Introduction 201
9.2. Productivity’s Nature and Importance 203
9.3. Change and Productivity Loss 204
9.4. Loss of Productivity Change Requests
and Claims 211
9.5. Ways to Improve Productivity 232
x Contents

9.6. Conclusion 233

References 233
Endnotes 238

Chapter 10. Subcontractors and Suppliers ........................................ 243

Christopher M. Anzidei
10.1. Introduction 243
10.2. General Contractor’s Duty of Performance 244
10.3. Contractor–Subcontractor Relationship 244
10.4. Subcontractor–Owner Claims 245
10.5. Suppliers 245
10.6. Documentation of General Contractor/
Subcontractor/Supplier Transactions:
Documenting Delays 248
10.7. Other Contractor–Subcontractor
Claim Issues 249
10.8. Subcontractor Licensing 254
10.9. Subcontractor-Specific Claims Publications 254
10.10. ConsensusDocs Standard Form Subcontracts 254
10.11. Conclusion 255
Endnotes 256

Chapter 11. Pricing Construction Claims and Change Orders ...... 259
Donald Harrington, R. Brent McSwain, Rex Snyder,
and James L. Giles
11.1. Introduction 259
11.2. Forward Pricing 261
11.3. Post Pricing 266
11.4. The Proposal—Request for Equitable
Adjustment 272
11.5. Impact and Inefficiency Costs 278
11.6. Material Costs 283
11.7. Equipment Costs 288
11.8. Overhead and Profit 296
11.9. Total Cost 304
11.10. Other Elements of Claim Pricing 306
11.11. Conclusion 314
Endnotes 314
 Contents xi

Chapter 12. Negotiations ........................................................................ 321

Kathleen O. Barnes
12.1. Introduction 321
12.2. The Need for Contract Negotiation 322
12.3. Determining Your Bottom Line 324
12.4. Preparation for Negotiations 333
12.5. Other Considerations 337
12.6. Bargaining-Table Tactics 339
12.7. Memorializing the Deal 340
12.8. Conclusion 343
Endnotes 343

Chapter 13. Dispute Avoidance and Alternative Dispute

Resolution............................................................................ 347
Adam K. Bult, David W. Halligan, Jonathan Pray, and
James G. Zack Jr.
13.1. Introduction 347
13.2. Predispute ADR Methods 348
13.3. Initial Claims and Dispute Phase 355
13.4. Alternatives during Litigation 376
13.5. Trial by Reference (Referee) 379
13.6. Administrative Dispute Resolution Act
and the Federal ADR Experience 379
13.7. Formal Administrative and Judicial Dispute
Resolution 380
13.8. Conclusion 382
Endnotes 383

Chapter 14. Termination of Construction Contracts ........................ 387

Dorothy E. Terrell and Nicholas J. Surace
14.1. Introduction 387
14.2. Termination for Default 387
14.3. Termination for Convenience 391
14.4. Termination by Contractor 394
14.5. Private Clauses 394
14.6. Conclusion 396
Endnotes 396
xii Contents

Chapter 15. Bonds and Liens ................................................................ 399

Rebecca Glos
15.1. Overview 399
15.2. Construction Bonds 400
15.3. Liens and Stop Notices 403
Endnotes 408

Chapter 16. Insurance Issues: Construction Claims of a

Different Nature ................................................................ 411
Scott C. Turner
16.1. Introduction 411
16.2. Greatest Potential Trap 412
16.3. Common Construction-Related Insurance
Policies 412
16.4. Insurance Basics 422
16.5. Conclusion 429
Endnotes 430

Chapter 17. Alternate Project Delivery: Claims in Design-Build,

Guaranteed Maximum Price, and Other Delivery
Methods .............................................................................. 431
Richard E. Burnham and Mark F. Nagata
17.1. Introduction to Changes in the Context
of Alternate Project Delivery Methods 431
17.2. Changes in the Context of a GMP Contract 432
17.3. Changes in the Context
of a Design-Build Contract 449
17.4. Conclusion 456
Endnotes 457

Case Law Index 459

Subject Index 465
Foreword

The construction industry has always been an indicator of the health of

national and global economies. Today’s construction industry is charac-
terized by complex and large-scale construction projects; involvement of
diverse, and potentially multicultural, associated stakeholders; poorly
prepared and/or executed contract documents; tight financial con-
straints; unfair allocation of risks; and communication problems.
Thus, changes after the work starts are not unusual and are some-
times the standard. This environment provides fertile ground for devel-
opment of construction claims. If not amicably settled, construction
claims escalate to conflicts and disputes. In all cases, construction claims,
conflicts, and disputes negatively affect the construction industry, its
people, and the world economy. For these reasons, providing the
construction industry with an easy-to-use resource that collectively
addresses the aforementioned challenges is crucial. This third edition
of Construction Contract Claims, Changes, and Dispute Resolution fills this
knowledge gap.
Contributing experts with a diverse skillset in construction law,
construction consulting, and academia provide the reader with best
practices for identification, notification, documentation, delay and cost
analysis, pricing, negotiation, resolution of claims, and changes under
construction contracts. In doing so, the book addresses conventional and
innovative project delivery methods and covers the broad range of
stakeholders, including owners, designers, contractors, subcontractors,
suppliers, manufacturers, and surety. Accordingly, this book provides a
comprehensive guide that should help alleviate and mitigate matters of
paramount importance to the construction industry.
As an academician, researcher, and industry consultant, I have used
and benefited from the previous two editions of Paul Levin’s book. This
third edition also does an outstanding job of addressing the new,
evolving characteristics of contracting in the 21st century as related to

xiii
xiv Foreword

claims, changes, and dispute resolution. Accordingly, I invite you to read

this book trusting that you will agree with me on its value.

Islam H. El-Adaway, Ph.D., F.ICE, M.ASCE

Associate Professor of Civil Engineering
Construction Engineering and Management Program Coordinator
The University of Tennessee–Knoxville
Preface

This work is intended to serve as a handbook for those who are engaged
in construction contracting and involved with or in a position to influence
the prevention, preparation, management, and resolution of construction
claims and change orders. Shaped by the outcomes of federal and public
construction cases, the general guidelines and legal principles covered in
this book should be of value and apply to those involved in private-sector
commercial and public-private partnership (PPP) construction projects.
Interpretations of the law contained in this handbook are solely those of
the writers and are not intended to serve as legal advice.
Originally published in 1978 and last updated in 1998, this book merges
principles of construction law with practical advice to aid those involved in
the construction claims process. Originally directed to contractors, many
engineers, owners, and construction managers also purchased the publica-
tion as a project guidebook, reference, and training manual.
In the past 35 years, the principles of construction law have changed
very little. The major focus is for all parties involved—engineers, archi-
tects, owners, and contractors—to be aware of these principles, strive to
reduce or eliminate factors that give rise to disputes, and establish
procedures for expeditious and fair resolution of inevitable claims. As
in the first two editions, this revamped third edition of Construction
Contract Claims, Changes, and Dispute Resolution attempts to continue the
tradition of straightforward, simple approaches.
For more information on claims, documentation tools, recent cases,
and links to construction/claims-related resources, please visit the
ConstructionProNet.com website.

xv
This page intentionally left blank
Acknowledgment

I am grateful to the individual authors who set aside time from their
busy law and consulting practices to provide the benefit of their expertise
in their respective chapters. As our society grows in complexity, so do
the intricacies of our day-to-day work lives, which call for more special-
ized knowledge to solve specific problems. For that reason, in this
edition I chose to rely on subject matter experts to provide the reader
with knowledgeable, authoritative, and up-to-date content.
In addition, I am grateful to my employer and my family, who
allowed me to spend the many hours needed to produce the book and
prepare the manuscript for submission to ASCE Press.
Paul Levin, PSP

xvii
This page intentionally left blank
Contributors

Chapter 1—Introduction
Paul Levin, PSP, has more than 25 years of contract
administration, project management, scheduling, and
claims consulting experience involving a wide variety
of projects, including nuclear and hydroelectric power
plants, transit systems, railroads, convention centers,
warehouses, recycling plants, office buildings, and
aquariums. He has devoted an equal amount of time
to writing and publishing editorial content on con-
struction topics, including claims, project controls,
green building, scheduling, building information modeling (BIM), and
most recently the use of drones in construction.

Chapter 2—Claim Identification and Notification

Joseph A. McManus Jr. is a partner in the construc-
tion law firm of McManus & Felsen LLP. He is a
graduate of the College of the Holy Cross and
obtained his JD from Duke University School of Law
in 1972. He is a past president of the American College
of Construction Lawyers, a fellowship of the 170 lead-
ing construction lawyers. He frequently serves as an
arbitrator on local, national, and international cases. He
is a member of the Large Complex Case Panel of
Arbitrators, a mediator (American Arbitration Association), and a mem-
ber of the Chartered Institute of Arbitrators. He has appeared as an expert
witness in cases involving construction documents, specifically American
Institute of Architects documents, in the United States and the Caribbean.

xix
xx Contributors

He advises clients on construction and commercial issues and disputes.

He gained this experience in construction and public-contracts law as a
lawyer in the U.S. Air Force Judge Advocate General’s Corps, as general
counsel to Clark Enterprises, Inc., and as a member of his own firm. He
has represented many public owners, including the Metropolitan
Washington Airports Authority, the District of Columbia Council, the
government of Barbados, and the government of Greece.

Karlee Starr Blank is an associate with the construc-

tion law firm of McManus & Felsen LLP. She gradu-
ated cum laude from Columbia University with a
Bachelor of Arts in 2012, and she obtained her JD
from Duke University School of Law in 2015. Prior to
law school, she worked in India, Turkey, and the
United States as an instructor and program develop-
ment manager for In-V-Ent-Ed, a global entrepreneur-
ship education program. In 2009, she received a grant
to design and bring solar heating and lighting technology to a remote
school in Qinghai Province, China. At Duke Law School, she was named
in 2013 the Inaugural Jeroll R. Silverberg Scholar. In recognition of her
pro bono work, Ms. Blank was named the recipient of the 2015 Duke
Law Clinics Advocacy Award. In her third year of study, she completed
a Capstone Project titled American Law Firms: How to Mitigate the Risk of
Legal Malpractice Liability When Collaborating with Overseas Legal Counsel.
She previously worked as a law clerk at McManus & Felsen LLP,
assisting the firm’s attorneys with client matters and collaborating on
publications such as the 2014, 2015, and 2016 revisions to the “When and
How to File a Federal Contract Claim” chapter of the Aspen Construction
Law Handbook.

Chapter 3—Differing Site Conditions

Marilyn Klinger is located in the Los Angeles office of
Sedgwick LLP and is involved in all aspects of con-
struction law on state and national levels. She is 2014-
Chambers-ranked in construction law. She represents
the full spectrum of the construction industry, includ-
ing owners, contractors, subcontractors, and sureties.
Her practice includes time-related claims and liti-
gation (delay and impact), legal advice and counsel
regarding the contracting process (bidding and
 Contributors xxi

contract disputes and performance bond claims), payment enforcement

and defense (payment bonds, mechanic’s liens, and stop payment notices),
administrative and scope claims and litigation (differing site conditions,
change and extra work orders and inadequate plans and specifications,
and subcontractor substitutions), and counseling and transactional ser-
vices to the construction industry (general advice and counsel, including
contract preparation, evaluation, and negotiation).

Chapter 4—Interpretation and Requirements of

Contract Specifications
Brian W. Bennett is the founding partner and owner
of Bennett Legal Group, P.A., in Orlando, Florida.
He is Florida Bar Board Certified in Construction
Law and has represented various participants in the
construction process, including owners, general con-
tractors, design professionals, and major subcontrac-
tors. He has several years of practical experience in
civil engineering and general construction prior to
attending law school. His civil engineering experience
includes the design of sanitary sewer, water distribution, and storm
drainage systems for various residential and commercial developments.
His general construction experience involved project management of
commercial projects including a $10 million dormitory for the College of
Charleston and a $7 million alumni center for the University of North
Carolina at Chapel Hill.

Jonathan M. Blocker is an associate with the firm of

Christian & Small LLP, in Birmingham, Alabama,
where he practices professional liability defense, con-
struction, and aviation law. Prior to joining the firm,
he practiced construction law in Florida. Mr. Blocker
also served three years as an assistant state attorney
for the Office of the State Attorney, Ninth Judicial
Circuit of Florida. Working in both Orange and
Osceola counties, he prosecuted hundreds of criminal
cases and more than 25 jury trials to verdict for crimes of violence,
burglary, and drug trafficking. He is licensed to practice law in Alabama
and Florida.
xxii Contributors

Chapter 5—Construction Project Delays and Time

Extensions
Thomas D. Fertitta, PSP, founded TDF, LLC, in April
2001 as a construction consulting services company.
Since 1981, his construction experience has included
project management, cost estimating, and fieldwork
coordination of shell and tenant improvements on
various facilities such as high-rise office buildings,
warehouses, and research and development build-
ings. He has held leadership positions with a general
contractor, a real estate developer, and an internation-
al professional services firm. He has prepared construction claims and
schedules for owners and contractors on private and municipal projects
such as schools, office buildings, cogeneration plants, industrial facilities,
condominiums, wastewater treatment plants, prisons, and courthouses.
He has performed schedule analyses, demonstrating delay, disruption,
acceleration and performing damage and loss of productivity calcula-
tions, as-built construction schedules, issue and entitlement identifica-
tion and analysis, and document control and organization. He has
provided expert witness services for negotiation, mediation, arbitration,
and state and federal court regarding scheduling matters.

Anthony L. Nedinsky, PSP, has amassed experience

over his career in several roles, including project
management, cost estimating, scheduling, field coor-
dination and leadership, negotiation with owners,
and community outreach for heavy civil projects. His
experience includes constructing several types of
bridges (concrete girders, steel girders and box beams,
integral and semi-integral abutments, and simple
spans), foundations (H-pile, drilled shaft from micro-
piles up to 72-inch diameter caissons), post and panel retaining walls
(with and without tiebacks), mechanically stabilized earth (MSE) retain-
ing walls, crib walls, combination walls, soundwalls (concrete post, steel
post, and lightweight soundwall), and support of excavation (chance
anchor, pile and lagging, pile and lagging with tiebacks, pile and lagging
with rakers, and tiebacks with shotcrete). His experience also includes
earthwork and roadway construction, reinforced concrete pavement,
large concrete underground structure construction including architec-
tural concrete and finishing, storm drainage, water line (up to 54-in.
 Contributors xxiii

diameter), sanitary sewer (gravity and force main), gas line, ductbanks,
and overhead electrical lines. He also has performed tenant fit-out work,
including HVAC, electrical, plumbing fire protection, and interior
finishes. He most recently worked in the project engineer role in a large
segment of a $1.5 billion design-build project to construct new general-
purpose lanes, toll lanes, and multiple bridges. He has taken leadership
roles in preparation of schedule analyses and claims for delay, disrup-
tion, and acceleration as well as assisting contractors and owners with
specific scheduling assignments to develop, enhance, and update base-
line schedules.

Jeffrey G. Gilmore is the chairperson of Akerman's

Construction Practice. His practice emphasizes do-
mestic and international construction law involving
a broad range of public and private matters, including
engineering-procurement-construction (EPC)/design-
build projects, health care, multifamily housing,
power generation, and petrochemical and infrastruc-
ture projects (transportation, water, and public
safety). In addition, he has been recognized for his
experience in construction matters in Chambers USA; recommended in
the Southeast in the Legal 500 for construction; noted as one of the Best
Lawyers in America for construction law; and listed in the Virginia
Business Legal Elite in the construction category.

Chapter 6—Acceleration and Mitigation of Project

Delays
Christopher M. Burke is a partner with Varela, Lee,
Metz & Guarino, LLP, a law firm representing clients
spanning the breadth of the construction and engi-
neering industry, including owners, developers, con-
tractors, subcontractors, design professionals, sure-
ties, and public agencies. He has spent his entire legal
career focusing on the construction industry and has
litigated dozens of disputes in the public and private
sectors, both in the United States and abroad. He is
well versed in the crucial elements of construction disputes, including
schedule analysis, lost productivity studies, and issues of design inter-
pretation. He is particularly knowledgeable regarding claim pricing and
xxiv Contributors

damages. He graduated cum laude from Yale University and later from
the University of Virginia School of Law, where he served as a Dillard
Fellow Legal Research and Writing Instructor.

Michael J. Harris is a vice president at Warner Con-

struction Consultants, Inc., and is the leader of War-
ner’s Disputes Resolution Group. He is a licensed civil
engineer and attorney with 35 years of construction
experience, including 20 years as an expert witness
specializing in construction delay, acceleration, dis-
ruption, loss of efficiency, and termination disputes.
He is skilled in construction claims analysis and liti-
gation support, having served as a testifying expert in
mediations, arbitrations, and litigation. His expertise includes analysis of
impacts caused by various issues, including loss of production, weather,
design errors and omissions, contractor errors, change orders, manpow-
er shortages, differing site conditions, management issues, and material
shortages. His deep understanding of the construction process is
founded in his background as an inspector, scheduler, construction
engineer, project manager, and scheduling/estimating department man-
ager, where he prepared detailed schedules, master schedules, and
recovery schedules and reviewed technical submittals, performed
constructability reviews, developed cost studies, and managed the
construction of large projects.

Chapter 7—Records and Documentation

Robert M. Freas advises clients on many topics,
including risk management, project controls, change
management, project scheduling, process improve-
ment, change order negotiations, dispute avoidance,
and the preparation or defense of construction claims.
He has participated in the preparation and presenta-
tion of several major construction and contract claims
and disputes. His experience with construction dis-
putes includes the development, analysis, and defense
of construction claims related to delays, inefficiencies, and cost overruns.
Specifically, he has prepared as-planned schedules, updates, and time
 Contributors xxv

impact analyses; prepared and analyzed as-built schedules; and prepared

delay- and performance-related analyses, productivity-impact and accel-
eration analyses, and cost and damages claims. He has provided risk
analysis services to large construction owners and contractors, including
contract risk assessments, probabilistic scheduling, Monte Carlo simula-
tions, and schedule and cost assessments. He also has provided project-
management oversight and construction-management services, devel-
oped project control systems, and prepared project status reviews.

W. Wesley Grover III, P.E., MBA, has more than

29 years of experience in analyzing and preparing
claims relating to construction matters (e.g., identifica-
tion and quantification of impact events; effect of
change orders, design changes, and out-of-sequence
work; and impact of quantity changes and unit price
changes), government contracts, business interrup-
tion, lost profits, valuation and environmental mat-
ters, and management consulting services. He also has
testified as an expert witness concerning economic damages related to
construction, operating and maintenance costs, business interruption,
business valuation, lost profits, repair and restoration costs, betterment,
employment wage and discrimination costs, and trade-secret-related
matters. He has also presented analyses to various parties including
the U.S. Department of Justice, the U.S. Attorney’s Office, Office of the
Inspector General, and States Attorneys General.

Chapter 8—Use of Project Schedules and the Critical

Path Method in Claims
John C. Livengood, AIA, Esq., FAACE, is a managing
director with Navigant’s Global Construction Practice
and has 40 years of experience in construction, design,
delay analysis, and litigation support. His areas of
expertise include construction, construction manage-
ment, government contracts, litigation support, medi-
ation, arbitration, construction litigation, cost analysis,
change order analysis, delay and disruption claims,
acceleration claims, and loss of productivity claims.
xxvi Contributors

As an expert witness, he has testified in court and arbitration proceed-

ings throughout the world on delay and productivity issues and
damages and causation issues.
He is active in several professional organizations, including AACE
International (AACE), the American Bar Association, Construction Man-
agement Association of America, and the American Society of Civil
Engineers. He is President of AACE in 2016–2017. He has published
numerous articles on construction claims and delay analysis and
speaks regularly on these topics. He also is one of the principal
authors of AACE’s “Recommended Practice on Forensic Schedule Anal-
ysis” (RP29R-03, 2011). He holds a Bachelor of Architecture from
Syracuse University and a Juris Doctor from Catholic University of
America.

Chapter 9—Impact on Labor Productivity from

Claims and Change Orders
William Ibbs, Ph.D., is professor and group leader of
the construction management program in the civil
engineering department at the University of Califor-
nia, Berkeley (U.C. Berkeley). He teaches both under-
graduate and graduate courses in construction man-
agement, including scheduling, labor productivity
analysis, cost management and accounting, and proj-
ect management. He is a leading thinker, active re-
searcher, and writer on construction management
subjects.
In addition to his academic career, Professor Ibbs is a very active
consultant. He has served as an expert witness and project neutral,
testifying in federal and state courts and in international arbitration. His
work includes the impact project change has on labor productivity (both
design and construction labor), schedule, and cost. He is probably best
known for his work on cumulative impact claims, but he also has
testified on matters involving professional standards of care and dis-
putes involving cumulative impact, schedule delay, construction ac-
counting, false claims, and loss of economic value.
He has worked on some of the biggest, most complex projects in the
world, including Boston’s Big Dig, reconstruction of the Panama Canal,
refineries, chemical plants, hospitals, process plants, transit systems, and
 Contributors xxvii

nuclear and conventionally fueled power plants. Clients include con-

tractors, construction management (CM) firms, designers, and owner
organizations throughout the United States, Africa, Asia, Europe, the
Middle East, and South America. Prior to his academic career, he worked
in the private sector for design, owner, and contractor organizations.
He earned his Bachelor of Science and Master of Science degrees
from Carnegie Mellon University and a Doctor of Philosophy degree
from U.C. Berkeley, all in civil engineering with a construction manage-
ment emphasis. He has minors in accounting and finance.

Paul L. Stynchcomb, CCM, PSP, CFCC, is a consul-

tant with the Ibbs Consulting Group. Formerly, he
served as a senior managing director in the Forensic
and Litigation Consulting practice of FTI Consulting.
He has worked in the construction industry since 1984
as an expert in critical path method (CPM) scheduling,
construction management, contract administration,
and labor productivity. Prior to 1984, he held con-
struction management positions in several major U.S.
construction firms. He has been qualified as an expert in CPM schedul-
ing, construction management, contract and subcontract administration,
delay and cost impact analysis, and loss of labor productivity in federal
and state courts, boards of contract appeals, and the Court of Federal
Claims and before tribunals of the American Arbitration Association and
International Court of Arbitration (ICC).

Chapter 10—Subcontractors and Suppliers

Christopher M. Anzidei, Esq., is an attorney with
extensive experience in drafting construction con-
tracts and resolving commercial disputes. Mr. Anzidei
is currently an in-house attorney for the Catholic
Archdiocese of Washington, DC, where he handles
primarily construction and real estate matters, and he
was formerly the principal of a boutique law firm that
specialized in construction, surety, and government
contracts law. Mr. Anzidei received a Bachelor of Arts,
with high honors, from Rutgers University and a Juris Doctor from
Georgetown University Law Center.
xxviii Contributors

Prior to opening his own firm, he clerked for the Honorable Robert J.
Yock, United States Court of Federal Claims, and later rose to partner at a
large, national construction law firm. He is a frequent lecturer and author
for many national trade organizations, and he is an adjunct professor at
Georgetown Law.

Chapter 11—Pricing Construction Claims and

Change Orders
Donald Harrington is vice president of Sage Consult-
ing Group, a national consulting firm based in Den-
ver, Colorado, specializing in the analysis and prepa-
ration of construction claims and contract surety
defaults. He has more than 30 years of experience in
construction claims with expertise including schedule
analysis, cost estimating, damage calculations and
allocations, impact and inefficiency analyses, and
means and methods reviews and contract interpreta-
tion. He has testified in various state and federal courts throughout the
United States and in front of numerous arbitration panels and dispute
review boards. He is a Certified Professional Constructor and a member
of the American Institute of Constructors. He is a Certified Construction
Supervisor in several Colorado jurisdictions. He received a Bachelor of
Science in Civil Engineering from the University of Colorado.

R. Brent McSwain is a senior consultant at Sage

Consulting Group. He has worked as an owner rep-
resentative, responsible for developing multimillion-
dollar acute-care hospital facilities, offices, ware-
houses, correctional and probation facilities, and rec-
reational facilities and for administering disaster re-
covery services. He also was a project manager for a
major general contractor responsible for executing
multimillion-dollar projects, including the National
Water Quality Laboratory for the federal government, a regional correc-
tional facility for a county agency, a precast parking garage for a hotel,
and an office building, and he managed disaster recovery work. He has
been with Sage since 2003. He has extensive experience in preparing and
Another random document with
no related content on Scribd:
Possibly the environmental feature of greatest value to cultural
progress in Middle America was its diversity. Mountain and coast,
temperate highland and hot lowland, humid and arid tracts, tropical
jungle and open country, were only a few hours apart. In each
locality the population worked out its necessary adaptations, and yet
it was near enough others of a different adaptation for them to trade,
to depend on one another, to learn. Custom therefore came in
contact with custom, invention with invention. The discrepancies, the
very competitions, would lead to reconciliations, readaptations, new
combinations. Cultural movement and stimulus would normally be
greater than in a culturally uniform area.
Be that as it may, Middle America took the lead. It is in the region
of southern Mexico that a wild maize grows—teocentli, “divine
maize,”[25] the Aztecs called it. From this, in a remote archaic period,
the cultivated plant was derived. At least, such seems to be the
probability in a somewhat tangled mass of botanical evidence. Here
then the dominant plant of American agriculture was evolved: with it,
very likely, the cultivated beans and squashes that are generally
associated in native farming even in parts remote from Mexico.
Pottery has so nearly the same distribution as maize agriculture,
as to suggest a substantially contemporaneous origin, probably at
the same center. This is the more likely because the art is of chief
value to a sessile people, and farming operates more strongly than
any other mode of life to bring about a sedentary condition.
Agriculture almost certainly increased the population. The food
supply was greater and more regular; people got used to living near
each other where before they had unconsciously drifted apart
through distrust; and the proximity in turn, as well as the new
stability, would lessen many of the local famines, hostilities, and
other hardships to which the smaller and less settled communities
had been exposed. As the death rate went down and numbers
mounted, specialization of labor would be first made possible, and
then almost forced. A self-contained community of a hundred cannot
permit much specialization of accomplishment and none of
occupation. Every man must be first of all an immediate food getter.
On the other hand a community of a million inevitably segregates
somewhat into classes, trades, guilds, or castes. The individual with
decided tastes and gifts in a particular direction finds his products in
enough demand to devote himself largely or wholly to their
manufacture. The very size of the community as it were forces him to
specialization, and thus diversity, with its train of effects leading to
further stimulation, is attained independently of environment.

184. Tobacco
For some culture elements, the evidence of early origin in Middle
America is less direct. The use of tobacco, for instance, is as widely
spread as agriculture, but is not necessarily as ancient. Its diffusion
in the eastern hemisphere has been so rapid (§ 98) as to make
necessary the admission that it might have spread rapidly in the New
World also—faster, at any rate, than maize. Moreover, a distinction
must be made between the smoking or chewing or snuffing of
tobacco and its cultivation. There are some modern tribes—mostly
near the margins of the tobacco area—that gather the plant as it
grows wild. It is extremely probable that wild tobacco was used for
some time before cultivation was attempted. Nevertheless tobacco
growing, whenever it may have originated, evidently had its
beginning in the northern part of Middle America, either in Mexico or
the adjacent Antillean province. It is here that Nicotiana tabacum
was raised. The tribes to the north contented themselves with allied
species, mostly so inferior from the consumer’s point of view that
they have not been taken up by western civilization. These varieties
look like peripheral substitutes for the central and original Nicotiana
tabacum.
The Colombian and Andean culture-areas used little or no
tobacco, but chewed the stimulating coca leaf. This is a case of one
of two competing culture traits preventing or perhaps superseding
the other, not of tobacco never having reached the Andes. Most of
the remainder of South America used tobacco.

185. The Sequence of Social Institutions

 The most peripheral and backward peoples of both North and
South America even to-day remain without clans, moieties,
hereditary totems, or exogamic groupings (§ 110). Some of these,
like the Eskimo and Fuegians, live at the extreme ends of the
continents, under conditions of hardships which might be imagined
to have directed all their energies toward the material sides of life
and thus left over little interest for the development of institutions.
But this argument will not apply to the many clanless tribes of the
California, Plains, and Tropical Forest areas. It must accordingly be
concluded that those American nations that show no formal
organization of society on a hereditary basis—or at least the more
primitive ones who possess no equivalent or substitute—do without
this organization because they never acquired it. This negative
condition may then be inferred as the original one of the whole
American race.
Somewhat more advanced culturally, on the whole, and less
definitely marginal, at any rate in North America, are several series
of tribes that do possess exogamic groups—either sibs or moieties—
in which descent goes in the male line and is generally associated
with totemic beliefs or practices. These comprise the tribes of one
segment of the Northwest Coast area; those of one end of the
Southwest with some extension into California; and those of most of
the Northern Woodland, with some extension into the Plains.
Another series of tribes live under the same sort of organization
but with descent reckoned in the female instead of the male line.
These comprise the peoples of one end of the Northwest Coast;
those of one portion of the Southwest; and those of the Southeast,
with some extensions into the Northeast and Plains.
These exogamic-totemic series of tribes average higher in their
general culture than the clanless and totemless ones. On the whole,
too, they are situated nearer the focus of civilization in Middle
America. As between the two exogamic-totemic series the
matrilinear tribes must be accredited with a more complex and better
organized culture than the patrilinear ones. The finest carving in
North America, for instance, is that of the Northwest—totem poles,
masks, and the like. Within the Northwest, the Tlingit, Haida, and
Tsimshian—matrilinear tribes—excel in the quality of this work. They
far surpass the patrilinear Kwakiutl and Salish. So in the Southwest:
the matrilinear Pueblos build stone towns, obey a priestly hierarchy,
and possess an elaborate series of cult societies. The patrilinear
Pimas and southern Californians live in villages of brush or earth-
covered houses, are priestless, and know at most a single religious
society. Again, the matrilineal Southern Woodlanders had made
some approach to a system of town life and political institutions, the
patrilineal Northern Woodlanders did without any serious institutions
in these directions. The one Northeastern group that established a
successful political organization, the Iroquois with their League of the
Five Nations, were matrilinear among patrilinear neighbors and
possessed positive affiliations with the Southeast.
It would be extravagant to maintain that throughout the North
American continent every matrilineal tribe was culturally more
advanced than every patrilineal one. But it is clear that within each
area or type of culture the matrilineal tribes manifest superiority over
the patrilineal tribes in a preponderance of cultural aspects. The
matrilineal clan organization thus represents a higher and
presumably later stage in North America than patrilineal clan
organization, as this in turn ranks and temporally follows the clanless
condition.
With one exception, the distribution of the same tribes with
reference to the South Mexican center agrees with their
advancement. The Northeast is distinctly peripheral, the Southeast a
half-way tract connected with Mexico by way both of the Southwest
and the Antilles. The matrilineal Pueblo portion of the Southwest
occupies part of the plateau backbone near the southern end of
which the Mexican culture developed. It was along this backbone
that civilization flowed up through northern Mexico. The coasts
lagged behind. They were marginal in Mexico, more marginal still in
the Southwest, where the patrilineal tribes lived on or near the
Pacific.
The one exception is in the Northwest Coast, where the more
remote northerly tribes are matrilinear, the nearer southerly ones
patrilinear. This reversed distribution raises the suspicion that the
Northwestern social organization may have had nothing to do with
Mexico, but may be a purely local product. This suspicion is
hardened by the fact that the Northwest shows a number of other
culture traits—some peculiar to itself, others recurring in well
separated areas—which it seems impossible to connect with Mexico.
Several of these traits will be discussed farther on. For the present it
is enough to note their existence as an indication favorable to the
interpretation of the Northwest social organization as unrelated to
Mexico. Thus the abnormal matrilineal-patrilineal distribution in the
Northwest is no bar to the generic finding for North America that
clanless, patrilinear, and matrilinear organizations of society rank in
this order both as regards developmental sequence and distance
from Middle America.
For South America the data are too scattering to discuss profitably
without rather detailed consideration.
The distributional facts outside Middle America thus point to this
reconstruction of events. The original Americans were non-
exogamous, non-totemic, without sibs or unilateral reckoning of
descent. The first institution of exogamic groups was on the basis of
descent in the male line, occurred in or near Middle America, and
flowed outwards, though not to the very peripheries and remotest
tracts of the continents. Somewhat later, perhaps also in Middle
America, possibly at the same center, the institution was altered:
descent became matrilinear. This new type of organization diffused,
but in its briefer history traveled less far and remained confined to
the tribes that were in most active cultural connection with Middle
America.
Now, however, a seeming difficulty arises. Middle America, which
appears to have evolved patrilinear and then matrilinear clans, was
itself clanless at the time of European discovery.[26] The solution is
that Middle America indeed evolved these institutions and then went
a step beyond by abandoning or transforming them. Obviously this
explanation will be validated in the degree that it can be shown that
probable causes or products of the transformation existed.
 186. Rise of Political Institutions:
Confederacy and Empire
In general, the transformation would seem to have been along the
line of a substitution of political for social organization. Struggling
villages confederated, with a fixed meeting place and established
council; the authority of elected or hereditary chiefs grew, until these
gave the larger part of their time to communal affairs; towns
consolidated. Public works could thus be undertaken. Not only
irrigating ditches and defenses, but pyramid temples were
constructed. In Middle America this condition must have been
attained several thousand years ago. The Mayas had passed
beyond it early in the Christian era. They were then ruled by a
governing class and priesthood, and were erecting dated
monuments that testify to a settled existence of the more successful
of their communities.
In the area of the United States, which may be reckoned as
perhaps two thousand years more belated than southern Mexico,
political organization was still in the incipient stage at the time of
discovery. The Pueblos of the Southwest had achieved town life and
considerable priestly control. They had not taken the further step of
welding groups of towns into larger coherent units. In the Southeast,
however, while the towns were less compact physically, and
probably less populous, political integration on a democratic basis
had made some headway. The institution evolved was essentially a
confederacy of the members of a language group, with civil and
military chiefs, council houses, and representation by “tribes” or
towns and clans. From the Southeast the idea of the confederacy
was carried into the Northeast by the Iroquois, whose famous
league, founded perhaps before Columbus reached America,
attained its culmination after the French and English settlement and
the introduction of firearms. The Iroquois league was an astounding
accomplishment for a culturally backward people. Its success was
due to the high degree of political integration achieved. Yet it did not
destroy the older clan system, in fact made skilful use of it for its own
purposes of political, almost imperialistic, organization.[27]
 Some stage of this sort the Mexican peoples may have passed
through. The Maya form of political organization was evidently
similar to that of the Pueblos, the Aztec development more like that
of the Muskogeans and Iroquois. A thousand years before Columbus
the Maya cities were contending for hegemony like the Greek city-
states a millenium earlier. Then the Nahua peoples forged to the
front; and about two centuries before the invasion of Cortez,
Tenochtitlan, to-day the city of Mexico, began a series of conquests
that ended in some sort of empire. It was a straggling domain of
subjected and reconquered towns and tribes, interspersed with
others that maintained their independence, extending from middle
Mexico to Central America, containing probably several million
inhabitants paying regular tribute, held together by well-directed
military force, and governed by a hereditary line of half-elected or
confirmed rulers of great state and considerable power. The
exogamic clan organization as such had disappeared. Groups called
calpulli were important in Aztec society, but they were local, or based
on true kinship, and non-totemic. They may have been the made-
over survivals of clans; they were not clans like those of the
Southwest, Southeast, or Northwest.
Five successive stages, then, were probably gone through in the
evolution of south Mexican society. First there was the pre-clan
condition, without notable organization either social or political; next,
a patrilinear clan system; third, a matrilinear clan system, with more
important functions attaching to the clans, especially on the side of
ceremonial; fourth, the beginnings of the state, as embodied in the
confederacy, the clans continuing but being made use of chiefly as
instruments of political machinery; fifth, the empire, loose and simple
indeed, judged by Old World standards, but nevertheless an
organized political achievement, in which the clans had disappeared
or had been transformed into units of a different nature.

187. Developments in Weaving

In the textile arts, since the successive stages rank one another
rather obviously, and the distributions coincide well with them, the
course of development is indicated plainly.
The first phase was that of hand-woven basketry, which has
already been accredited to the period of immigration, and is beyond
doubt ancient. All Americans made baskets at one time or another.
The few tribes that were not making them at the time of discovery
had evidently shelved the art because their environment provided
them with birch bark, or their food habits with buffalo rawhide, with
exceptional ease, and because their wants of receptacles and
cooking utensils were of the simplest. That basket making goes back
to a rudimentary as well as early stage of civilization is further
suggested by the fact that perhaps the finest ware is made in the
distinctly backward areas, such as the Plateau and California.
A second and a third phase, which are sometimes difficult to
distinguish, are those of loose suspended warps and of a simple
frame or incomplete loom. Pliable cords of some sort, or coarse bast
threads, are employed. The objects manufactured are chiefly wallets
or bags, blankets of strips of fur or feathers, hammocks, and the like.
These two processes are widely spread, but not quite as far as
basketry; the northern and southern extremes of the double
continent do not know them. Occasionally, very fine work is done by
one or the other of these two methods. The most striking example is
the so-called Chilkat blanket of the Northwest Coast, a cloth-like
cape, woven, without a complete loom, of mountain goat wool on
cedar bark warps to a complicated pattern—a high development of a
low type process.
The fourth stage is that of the true or complete loom. In America
the loom is intimately associated with the cultivation of cotton. The
two have the same distribution, except for some use of the plant for
the twining of hammocks on a half-loom in portions of the Tropical
Forest area. Disregarding this case as a probable part adaptation of
a higher culture trait to a lower culture, we may define the distribution
of both loom and cotton as restricted to the Middle American areas,
the adjacent Southwest, and perhaps the adjacent Antilles. This is
certainly central.
 The fifth stage is the loom with a handle or mechanical shedding
device, obviating tedious hand picking of the weft in and out of the
warps. The heddle is proved only for Peru. It was probably used in
Mexico. It may therefore be tentatively assumed to have been known
also in the intervening Chibcha area. It is used to-day in the
Southwest, but may have been introduced there by the Spaniards.
This stage accordingly is limited even more strictly to the vicinity of
Middle America.
The sixth stage, that of the loom whose heddles are operated by
treadles, and what may be considered a seventh, the use of multiple
heddles to work patterns mechanically, were never attained by any
American people.
The best and finest fabrics were made in Peru, in part probably as
consequence of the addition of wool to the previous repertory of
cotton. This addition in turn probably followed the domestication of
the llama by the Peruvians. The Mexicans had no corresponding
animal to tame, and their textiles lagged behind in quality.

188. Progress in Spinning: Cotton

Spinning and weaving are interdependent. Baskets are made of
woody rods, cane splints, root fibers, or straws, all untwisted, but it is
probable that the ability to twist cordage is about equally old as
basketry. At any rate there is no American people ignorant of cord
making. The materials are occasionally sinews, more frequently bast
—that is, bark fibers. These are rolled together, almost invariably two
at a time, between the palm and the naked thigh. Cordage is used
for the second and third stages of weaving. The cotton employed in
loom weaving does not spin well by this rolling method. It was
therefore spun by being twisted between the fingers, the completed
thread being wound on a spindle. This spindle served primarily as a
spool or bobbin. In the Old World the distaff has been used for
thousands of years. This is a spindle with a whorl or flywheel. It is
dropped with a twirl, giving both twist and tension to the loose roving
of linen or wool and thus converting it into yarn by a mechanical
means. The New World never fully utilized this device. The
Southwest to-day uses the wheeled spindle, but evidently as the
result of European introduction. Old Mexican pictures and modern
Maya photographs show the spindle stood in a bowl, not dropped.
The whorl which it possessed was therefore little more than a button
to keep the thread from slipping off the slender spindle. For Peru this
is established. Thousands of spindles have been found there,
normally with whorls too small and light to serve as an effective
flywheel. It may then be concluded that all American spinning was
essentially by hand; which is in accord with the absence from all
America of any form of the wheel. The Indian spinning methods were
only two: thigh rolling for bast, finger twisting for cotton.
The origin of the higher forms of spinning and weaving in Middle
America is confirmed by the tropical origin of cotton, on which these
developments depend. The cotton of the Southwest, for instance,
was introduced from Mexico as a cultivated plant. It is derived by
some botanists from a Guatemalan wild species. This may well have
been the first variety to be cultivated in the hemisphere.

189. Textile Clothing

Clothing in general is too much an adaptation to climate to render
satisfactory its consideration wholly by the method here followed. But
clothing of textiles shows a distribution that is culturally significant.
The distribution is that of loom-woven cotton; the salient
characteristic is rectangular shape: the blanket shawl, the poncho,
the square shirt and skirt. In the Northwest Coast region hand and
half-loom woven capes and skirts of bast were worn more or less.
But these were flaring—trapezoidal, not rectangular—and thus
evidently represent a separate development.
In all the cloth weaving areas, and in them only, sandals were
worn. The spatial correlation is so close that there must be a
connection. It may be suggested that the sandal originated, or at
least owed its spread, to textile progress. Again the Northwest Coast
corroborates by being unique; it is essentially a barefoot area.
 To summarize. The original textile arts of the race were probably
first advanced to the stages intermediate between basket and cloth
making in Middle America. Thence they spread north and south, but
not quite to the limits of the hemisphere, being retained in special
usage chiefly in the Northwest. With the cultivation of cotton in
Middle America, spinning and the loom came into use, and were
ultimately carried to the Southwest, but not beyond. Cloth garments
and sandals promptly followed. The heddle was evidently devised
last, and did not diffuse beyond Middle America.

190. Cults: Shamanism

In the matter of religious cults, seven entries have been included
in Figure 35: (1h) shamanism, and (1i) crisis ceremonies, especially
for girls at puberty and the whipping of adolescent boys, two more or
less synchronous traits; (6a) initiating societies, and (6b) masks—
also about contemporaneous; (16) priesthood; and (22) human
sacrifice and (23) temples.
The shaman is an individual without official authority but often of
great personal influence. His supposed power comes to him directly
from the spirits as a gift or grant. He himself, as a personality, has
been able to enter into a special relationship, denied to normal
persons, with the supernatural world or some member thereof. The
community recognizes his power after it is his: the community does
not elect him to his special position, nor accept him in it by
inheritance. His communion with spirits enables the shaman to
foretell the future, change the weather, blast the crops or multiply
game, avert catastrophes or precipitate them on foes; above all, to
inflict and cure disease. He is therefore the medicine-man; a word
which in American ethnology is synonymous with shaman. The
terms doctor, wizard, juggler, which have established themselves in
usage in certain regions, are also more or less appropriate: they all
denote shamans. When he wishes to kill his private or public enemy,
the shaman by his preternatural faculties injects some foreign object
or destructive substance into his victim, or abstracts his soul. To cure
his friends or clients, he extracts the disease object, sometimes by
singing, dancing, blowing, stroking, or kneading, most often by
sucking; or he finds, recaptures, and restores the soul. Of the two
concepts, that of the concrete disease object is more widely spread;
that of the soul theft is apparently characteristic of the more
advanced tribes; but the exact distribution remains to be worked out.
The territorial extent of shamanistic ideas and practices is from the
Arctic to Cape Horn. The method of acquiring power from spirits, the
nature of the disease object and its process of extraction, the
conviction that sickness must be caused by malevolent shamanistic
power, there being no such thing as natural death; these and other
specific features of the institution are sometimes surprisingly similar
in North and South America. In fact, they recur in peripheral parts of
the eastern hemisphere—Siberia, Australia, Africa—with such close
resemblance as strongly to suggest their being the remnants of a
once world-wide rudimentary form of religion or religious magic.

191. Crisis Rites and Initiations

Crisis rites are of equally broad diffusion and apparent antiquity.
They concern the critical points of human life: birth, death,
sometimes marriage and childbirth; but most frequently, or at least
most sacredly, they are wont to concern themselves with maturity.
They are thus often puberty ceremonials, made for the welfare both
of the individual and of the community, and fitting him or her for
reproductive functions as well as for a career as a useful and
successful community member. The girls’ adolescence rites have
been described (§ 154) in some detail for California. With but minor
variations, the account there given applies to the customs of many
American and in fact Old World peoples. The boys’ rites come at the
corresponding period of life, but their reference to sex and marriage
is generally less definite. Fortitude, manliness, understanding are the
qualities they are chiefly intended to test and fix. Privations like
fasting, ordeals of pain, admonitions by the elders, are therefore
characteristic elements of these rites. It is thus not as surprising as it
might seem at first acquaintance that identical practices, such as
having the boys stung by vicious ants, are occasionally found in
regions as remote as California and Brazil: even the particular
method may be a local survival of a wide ancient diffusion. Perhaps
most common of all specific ingredients of the rite in America is a
whipping of the boys. Possibly this commended itself as combining a
test of fortitude and an emotional memento of the counsel imparted.
At any rate it evidently became an established part of the puberty
rites thousands of years ago, and thus acquired the added social
momentum of an immemorial custom in many parts of both North
and South America.

192. Secret Societies and Masks

Out of the puberty crisis rite for boys there grew gradually a
society of initiates who recruited their ranks by new initiations. As
emphasis shifted from the individual to the community as
represented by those already initiated, the ceremony came to be
performed less for the benefit of the individual than for the
maintenance of the group, the society as such, with its rites, secrets,
and privileges. Very often, no one was excluded but immature boys
and females; yet, if the act of admittance was to have any psychic
significance, the exclusion of these elements of the community had
to be made much of. Thus secrecy toward women and children was
emphasized, although often the secrets simmered down largely to
the fact that there were secrets.
The girls’ adolescence ceremony does not seem to have taken
this course of growth, because of its more personal and bodily
character, puberty in women being so much more definite a
physiological event. There are women’s societies among some
American tribes. But they seem to be generally a weaker imitation of
the men’s societies after these were fully developed, not a direct
outgrowth of the original girls’ rite.
Shamanism entered as another strain into the formation of the
secret society. Medicine-men often would come to act for the public
good, the occasion would be repeated regularly, and a communal
ceremony with an esoteric nucleus resulted. Also, the shamans at
times helped the novice shamans train and consolidate their spiritual
powers. The extension of this habit perhaps sometimes led, or
contributed, to the establishment of a secret society (§ 158).
Masks are closely associated with secret societies. They disguise
the members to the women and boys, who are told, and often
believe, that the masked personages are not human beings at all. Of
course this adds to the mystery and impressiveness of the initiations,
especially when the masks are fantastic or terrifying. Masks and
societies thus are two related aspects of one thing. But they are by
no means inseparable. There are tribes, like some of the Eskimo,
who use masks but can scarcely be said to possess societies, while
in the Plains and elsewhere there are definite societies that initiate
without masks. Physical and economic conditions in the Arctic
operating against large-scale community life or social elaboration,
the masks of the Eskimo may represent merely that part of a mask-
society “complex” which these people could conveniently take over
when the complex reached them.
In the Southwest, among the Pueblos, there are two types of
societies. There is a communal society, embracing all adult males,
who are initiated at puberty by whipping and who later wear masks
to impersonate spirits and dance thus for the public good. There are
several smaller societies, also with secret rites, which cure sickness,
recruit their membership from the cured, and use masks little or not
at all. It is clear here how the two component strains, namely crisis
rites and shamanistic practices, have flowed into the common mold
of the society idea and become patterned by it without quite
amalgamating.

193. Priesthood
This, then, was the second general stage of American religion.
The third is marked by the development of the priesthood. The priest
is an official recognized by the community. He has duties and
powers. He may inherit, be elected, or succeed by virtue of lineage
subject to confirmation. But he steps into a specific office which
existed before him and continues after his death. His power is the
result of his induction into the office and the knowledge and authority
that go with it. He thus contrasts sharply with the shaman—logically
at least. The shaman makes his position. Any person possessed of
the necessary mediumistic faculty, or able to convince a part of the
community of his ability to operate supernaturally, is thereby a
shaman. His influence is essentially personal. In actuality, the
demarcation cannot always be made so sharply. There are peoples
whose religious leaders are borderline shaman-priests. Yet there are
other tribes that align clearly. The Eskimo have pure shamans and
nothing like priests. The Pueblos have true priests but no real
shamans. Even the heads of their curing societies, the men who do
the doctoring for the community, are officials, and do not go into
trances or converse with spirits.
Obviously a priesthood is possible only in a well constructed
society. Specialization of function is presupposed. People so
unorganized as to remain in a pre-clan condition could hardly be
expected to have developed permanent officials for religion. As a
matter of fact they have not. There are not even clear instances of a
full fledged priesthood among patrilinear sib tribes. The first
indubitable priests are found among the matrilinear Southwesterners
and a few of their neighbors. Thence they extend throughout the
region of more or less accomplished political development in Middle
America. Beyond that, they disappear.
Here once more, then, we encounter a trait substantially confined
to the area of intensive culture and evidently superimposed upon the
preceding stages. This makes it likely that the second stage, that of
societies and masks, originated in the same center, but so long ago
as to have been mostly obliterated by later developments, while
continuing to flourish half way to the peripheries.
Even the priesthood is old in Middle America. This seems
reasonably demonstrable. We do not know its actual beginnings
there. But its surviving conditions at the edge of its area of
occurrence may be taken as roughly indicative of its origin. Among
the Pueblos, each priest, with his assistants, is the curator of a
sacred object or fetish, carefully bundled and preserved. The fetish
serves the public good, but he is its keeper. In fact he might well be
said to be priest in virtue of his custodianship thereof. Associated is
the concept of an altar, a painting which he makes of colored earth
or meal. In the Plains area, some tribes may be somewhat
hesitatingly described as having a priest or group of old men as
priests. Wherever such is the case, these half-priests are the
keepers of fetish-bundles; usually they make something like an altar
of a space of painted earth. Areas as advanced as the Northwest
Coast, where distinctive priests are wanting, lack also the bundles
and altars. It looks, therefore, as if the American priesthood had
originated in association with these two ceremonial traits of the fetish
bundle and painted altar—both of which are conspicuously unknown
in the eastern hemisphere.

194. Temples and Sacrifice

In Middle America the fetish bundle and picture altar do not
appear, apparently through supersedence by elements characteristic
of the next or fourth cult stage, characterized by the temple and the
stone altar used in sacrifice. Temples, however, were already in
luxuriant bloom among the Maya in their Great Period of 400 to 600
A. D. The beginnings of their remarkable architecture and sculpture
must of course lie much farther back; certainly toward the opening of
the Christian era, very likely earlier. Before this came the
presumptive initial stage of priesthood, with bundles and altar
paintings or some local equivalent. If a thousand years be allowed
for this phase, the commencement of the priesthood would fall in
southern Mexico or Guatemala at least three thousand years ago;
possibly much longer. Peru, perhaps, did not lag far behind.
Temples mark the last phase of native American religion, but the
most purely religious characteristic of the period, independent of
mechanical or æsthetic developments, is human sacrifice. This had
long been practised by the Mayas and in Peru, but reached its
culmination in the New World and probably on the planet, at least as
regards frequency and routine-like character, among the Aztecs.
These were a late people, by their own traditions, to rise to culture
and power, attaining to little consequence before the fourteenth
century. It looks therefore as if human sacrifice had been a
comparatively recent practice, perhaps only one or two thousand
years old when America was discovered, and still moving toward its
peak.
Outside Middle America, human sacrifice was virtually
nonexistent. There was considerable cannibalism in the Tropical
Forest and Antilles, but no taking of life as a purely ceremonial act.
For the Pueblos of the Southwest, there are some slight and doubtful
suggestions, but it appears that such deaths as were inflicted were
rather punishments than offerings. The one North American people
admittedly sacrificing human life were the Pawnee, a Plains tribe,
who once a year shot to death a girl captive amid a ritual reminiscent
of that of Mexico. This has always been interpreted as suggestive of
a historical connection with Mexico. In fact, the Pawnee appear to
have moved northward rather recently, and most of their Caddoan
relatives had remained not far from the Gulf of Mexico when
discovered.
The precise origin of sacrifice is obscure, although it is significant
that it was restricted to the area of concentrated population and
towns. In Mexico at least there were no domesticated mammals
available. The ultimate foundation of human sacrifice is no doubt the
widespread and very ancient custom of offerings. It is, however, a
long leap from the offering of a pinch of tobacco, a strew of meal, an
arrowpoint or some feathers, or even a few bits of turquoise, to the
deliberate taking of a life. Possibly the idea of self-inflicted torture
served as a connection. The Plains tribes sometimes hacked off
finger joints as offerings, and in their Sun Dance tore skewers out of
their skins. In the northern part of the Tropical Forest knotted cords
were drawn through the nose and out of the mouth—a sufficiently
painful process—in magico-religious preparation. In Mexico it was
common for worshipers to pierce their own ears or tongues, the idea
of a blood offering combining with that of penance and mortification.
It may seem strange that so shocking a custom as human sacrifice
represented the climax of American religious development. Yet in a
few thousand years more of undisturbed growth, it would probably
have been superseded. This is precisely what happened in the Old
World, which may be reckoned as about four to five thousand years
ahead of the New. In the Old World also the really lowly and
backward peoples did not sacrifice men. The practice is a symptom
of incipient civilization.

195. Architecture, Sculpture, Towns

To construct stone-walled buildings seems a simple
accomplishment, especially in an environment of stratified rocks that
break into natural slabs. Such flat pieces pile up into a stable wall of
room height without mortar, and a few log beams suffice to support a
roof. Yet the greater area of the two continents seems never to have
had such structures. Stone buildings are confined to Middle America
and the Southwest. Outside these regions only the wholly timberless
divisions of the Eskimo make huts of stone, and for their winter
dwellings they are limited to choice of this material or blocks of snow.
The Eskimo hut is tiny, not more than eight or ten feet across, and
the weather is kept out not by any skill in masonry or plastering, but
by the rude device of stuffing all crevices with sod. The Eskimo style
of “building” in stone would be inapplicable in a structure of
pretension. Made larger, the edifice would collapse.
The art of masonry, like agriculture, pottery, and loom weaving,
may therefore be set down as having had its origin in Mexico or
Peru, or possibly in both. It shows, however, this peculiarity of
distribution: at both ends of the area, among the Pueblos of the
Southwest in North America and among the Calchaqui of northwest
Argentina in South America, living houses were stone-walled. In the
intervening regions, most dwellings were of thatch or mud, public
buildings of stone. The Aztec, Maya, and Inca areas have therefore
left stone temples, pyramids, palaces, forts, and the like, but few
towns; the Pueblo and Calchaqui, only towns.[28] How the Middle
Americans were first brought to use stone is not known; but a temple
built as such being a more specialized, decorative, organized edifice
than a dwelling, as well as involving some degree of communal
coöperation, it can safely be regarded as a later type than private
dwellings. The occurrence of the stone living houses at the
peripheries confirms their priority. Evidently masonry was first
employed in Middle America for simple public structures: chiefs’
tombs, water works, platforms for worship. In its diffusion the art
reached peoples like the Pueblos, who lived in small communities,
interred their leaders without great rites, and offered no sacrifices in
sight of multitudes. These marginal nations therefore took over the
new accomplishment but applied it only to their homes. Meanwhile,
however, the central “inventors” of masonry had grown more
ambitious and were rearing ever finer and larger structures, until the
superb architecture of the Mayas and the consummate stone fitting
of the Incas reached their climax.
Stone sculpture grew as an accompaniment. It remained rude in
Peru, and chiefly limited to idols, in keeping with the simple, massive
style of architecture. But the Mayas covered their structurally bolder
and more diversified religious buildings with sculpture in relief and
frescoed stucco, and between them set up great carvings of animal
and mythical divinities, as well as luxuriantly inscribed obelisks. Their
sculpture is æsthetically the finest in America and compares in
quality with that of Egypt, India, and China.
Recent excavations in the Southwest have revealed a succession
of stages as regards buildings. The first houses in this region may
have been thatched or earth-roofed. The earliest in which stone was
used were small, dug out a few feet, the sides of the excavation lined
with, upright rock slabs, and a superstructure of poles or mud-filled
wattling added. Then followed a period of detached one-room
houses, with rectangular walls of masonry; and finally the stage of
drawing these together in clusters and raising them in terraced
stories. This whole development can be traced within the area. Yet it
by no means follows that it originated wholly within the area. The
knowledge of laying stone in courses, the impulse or habit of doing
so, might, theoretically, just as well have come from without; and
evidently did actually come into the Southwest from Mexico.
This is a type of situation frequently encountered in culture history
problems. A group of data seem to point to a spontaneous origin on
the spot so long as they are viewed only locally, whereas a broader
perspective at once reveals them as merely part of a development
whose ultimate source usually lies far away. For instance, the
backward Igorot tribes of the interior Philippines rear imposing
terraces for their rice plots; their more advanced coastal neighbors
do not. It has therefore been debated whether the Igorot invented
this large-scaled terracing or learned it from the Chinese. Yet the
terracing is only an incident to rice culture, which is widespread in
the Orient, ancient, and evidently of mainland origin. The knowledge
of terracing was therefore no doubt long ago imported into the
Philippines along with rice cultivation, and the Igorot only added the
special local development of carrying the terraces to a more
impressive height. There is no question that the increase and better
concatenation of knowledge is gradually leading to more and more
certain instances of wide diffusions and fewer and fewer cases of
independent origin.
Town life possesses a material aspect—that of the type and
arrangement of dwellings—as well as the social and political aspects
already touched on. The largest towns in America were those of
Mexico and Peru, whose capitals may have attained populations of
fifty to a hundred thousand. The Maya towns were smaller, in
keeping with the Maya failure to develop an empire. The largest
towns of the Chibcha of Colombia may have held ten or twenty
thousand souls. The most flourishing pueblos of the Southwest seem
never to have exceeded three thousand inhabitants. The Calchaqui
towns in Andean Argentina were no larger, probably smaller.
Southeastern and Northwest Coast towns ran to hundreds instead of
thousands of population. These figures tell the usual story of thinning
away from center to peripheries.
But local differences were sometimes significant. The
Southeastern town, except for its court and rude public buildings,
was straggling and semi-rural compared with the compact, storied,
and alleyed Southwestern pueblo; often it was less populous. Yet its
political and military development was more advanced, at any rate
as a unit in the larger group of the confederacy.

196. Metallurgy