建设合同商务与法律原理 英文版PDF电子书下载

CHAPTER 1 INTERFACE OF THE LAW WITH THE CONSTRUCTION INDUSTRY 1

The Typical Parties 2

Construction Contractors and Subcontractors 2

Architect/Engineers 2

Construction Owners 2

Service and Supply Organizations 3

Labor Force 3

Local,State,and Federal Governments 3

General Public 4

Rules for Participants 4

Contracts 4

Laws,Statutes,and Regulations of Governmental Agencies 5

Tort Law 7

Liability in the Construction Process 7

Contract Liability 7

Tort Liability 8

Statutory Liability 8

Strict Liability 8

Conclusion 9

Questions and Problems 10

CHAPTER 2 CONTRACT FORMATION,PRIVITY OF CONTRACT,AND OTHER CONTRACT RELATIONSHIPS 13

What Constitutes a Contract? 14

Offer 14

Acceptance 16

Consideration 17

Contract Must Not Be Contrary to Law—Nonenforceable Contracts 18

Privity of Contract and Other Contract Relationships 18

Privity of Contract 18

Third-Party Beneficiary Relationship 19

Third-Party Beneficiary Intent 20

Multiple Prime Contracts 20

Conclusion 22

Questions and Problems 22

CHAPTER 3 THE PRIME CONTRACT-AN OVERVIEW 25

The Parties to Construction-Related Prime Contracts 26

Owner-Architect Contracts and Owner-Engineer Contracts 26

Owner-Construction Manager Contracts 26

Owner-Contractor Contracts 26

The Nature of the Contractual Services Provided 27

Design Only Services 27

Construct Only Services 27

Design-Construct Services 27

Turnkey and Fast-Track Design-Construct Services 28

Construction Management Services 29

Commercial Terms 30

Cost Plus Percentage Fee Terms 31

Cost Plus Fixed FeeTerms 32

Target Estimate(Cost Plus Incentive Fee)Terms 32

Guaranteed Maximum Price Terms 33

Fixed-Price Contracts 33

Conclusion 35

Questions and Problems 35

CHAPTER 4 PRIME CONTRACT-FORMAT AND MAJOR COMPONENTS 39

Standard Forms-of-Contract 40

Federal Government Construction Contract 40

American Institute of Architects Contracts 41

Associated General Contractors Contracts 41

Engineers Joint Contract Documents Committee Contract 41

State Highway Department Contracts 41

Other Agency Contracts 42

One-of-a-Kind Contracts 42

Typical Documents Comprising the Contract 42

Bidding Documents 43

General Conditions of Contract 45

Supplementary Conditions of Contract 45

Specifications 46

Drawings 46

Reports of Investigations of Physical Conditions 46

Conclusion 47

Questions and Problems 47

CHAPTER 5 OWNER-CONSTRUCTION CONTRACTOR PRIME CONTRACT"RED FLAG"CLAUSES 51

Threshold"Red Flag"Clauses 52

Dispute Resolution and Governing Law Clause 53

Changes Clause 54

Differing Site Conditions Clause 54

Delays and Suspensions of Work 54

Terminations and Partial Terminations 55

Other Important " Red Flag"Clauses 56

Time Provisions 57

Liquidated or Actual Damages for Late Completion 57

Site Availability and Access to the Site 58

Payment and Retention Provisions 60

Reports of Physical Site Conditions 62

Exculpatory Clauses in General 65

Insurance and Bond Provisions 65

Indemnification Requirements 65

Measurement and Payment Provisions 66

Variation in Quantities Clause 66

Equal Employment Opportunity and Disadvantaged/Women-Owned Business Requirements 67

Escalation Provisions 68

Conclusion 68

Questions and Problems 68

CHAPTER 6 LABOR AGREEMENTS 71

The Parties 72

Common Types of Labor Agreements 73

Labor Agreement Threshold " Red Flag"Provisions 76

Union Security Provisions 76

Hiring Hall Provisions 77

Grievance Procedures 77

Work Stoppage/Lockout Provisions 78

Subcontracting Clause 78

Other"Red Flag" Provisions 78

Wage/Benefits Hourly Rates 79

Normal Workday and Workweek 79

Overtime Definition and Pay Premium 80

Shift Work and Pay Premium 80

Work Rules and Manning Provisions 81

Steward Provisions 82

Me Too/Most Favored Nation Provisions 83

Conclusion 83

Questions and Problems 84

CHAPTER 7 PURCHASE ORDER AND SUBCONTRACT AGREEMENTS 87

Purchase Orders 88

Goods or Provision of Services? 88

Use of Purchase Orders for Certain Jobsite Services 89

Purchase Order Quantity Limitations 89

Conflicts with Seller's Sales Quotations 89

Flow-Down Language from Prime Contracts 90

"Red Flag"Purchase Order Provisions 91

Necessary Identifying Information 91

Description of the Goods Purchased 91

Shipping Instructions 91

Pricing and Basis of Quantity Measurement 92

Payment and Retention Provisions 92

Specified Delivery Schedule 94

Required Delivery Point 94

Sales Taxes 95

Purchase Order General Conditions 95

Special or Supplementary Provisions 96

AGCC Forms of Purchase Order Agreements 97

Subcontract Agreements 97

Subcontract"Red Flag"Provisions 98

Necessary Identifying Information 98

Description of the Subcontract Work 98

Pricing and Basis of Quantity Measurement 99

Payment and Retention Provisions 99

Contractor Control of Performance Time Requirements 99

Damages in the Event of Late Completion 100

Subcontract Changes Clause 101

Insurance and Bond Requirements 101

Indemnification 101

48-Hour and 72-Hour Clauses 102

Union Labor Only Clause 102

AGCC Forms of Subcontract 103

Conclusion 103

Questions and Problems 103

CHAPTER 8 INSURANCE CONTRACTS 107

Worker's Compensation and Employer's Liability Policies 108

Worker's Compensation Section 109

Employer's Liability Section 109

USL＆HW Act and the Jones Act 109

Premium Structure 110

Premium Modifiers 110

Public Liability Policies 111

Normal Liabilities That Are Covered 112

Exclusions,Endorsements,and Deductibles 113

Monetary Limits—Primary and Umbrella Policies 113

Premium Structure 113

Definition of Occurrence 114

P＆I Polices 114

Builder's Risk Policies 114

Limitation on Policy Coverage 115

Named Peril v. All Risk Policies 115

Exclusions and Deductibles 115

Temporary Structures 117

Premium Structure 117

Monetary Limits of Policy 117

Reasons for Carrying Builder's Risk Insurance 118

Equipment Floater Policies 118

Method of Determining Loss 118

Premium Structure 119

Equipment Floater Insurance for Marine Equipment Operations 119

Evaluating the Need for Equipment Floater Insurance 119

Miscellaneous Policies for Special Situations 119

Owner-Provided Insurance Programs 120

" Red Flag"Insurance Provisions 120

Named Exclusions 120

Additional Named Insureds 121

Deductibles 121

PolicyTerm 121

Subrogation 122

Policy Cancellations 122

Recent Trends in the Construction Insurance Industry 122

Claims-Made v. Occurrence Policies 122

Premium Escalation and Diminished Coverage 123

Conclusion 123

Questions and Problems 123

CHAPTER 9 SURETY BONDS 127

Relevant Parties and Surety Bond Terms 128

Surety 128

Principal 128

Obligee 128

Guarantee 129

Penal Sum 129

Premium 129

Indemnitor 129

How Do Surety Bonds Work? 130

Indemnity Agreement 130

Surety Bonds v. Insurance Contracts 130

How Good Is the Guarantee? 130

Surety's Belief in Contractor's Ability to Perform 131

Bid Bonds 131

Bid Bond Guarantee 131

Bid Bond Penal Sum 131

Performance Bonds 132

Performance Bond Guarantee 132

Surety's Options to Make Good the Guarantee 132

Penal Sum—How Much Does the Surety Pay? 133

Owner's Misconception About Performance Bonds 133

Excess Early Contract Payments 134

Contractor Protection of Bonding Capacity 135

Labor and Material Payment Bonds 135

Labor and Material Payment Bond Guarantee and Claimants 135

Other First-Tier Bonds 137

Work Guarantee Bonds 137

Lien Discharge Bonds 138

Subcontract Bonds and Material Supplier Bonds 138

Conclusion 138

Questions and Problems 139

CHAPTER 10 JOINT-VENTURE AGREEMENTS 141

Joint and Several Liability 142

Conventional v. Item Joint Ventures 142

Conventional Joint Ventures 143

Formation and Termination Matters 143

Participation Percentages 144

General Management Matters 145

Working Capital Matters 146

Accounting Matters 147

Bond and Indemnification Matters 147

Insurance Matters 148

Partner Bankruptcy Provisions 149

Construction Equipment Acquisition and Disposal 149

Item Joint Ventures 150

Comparisons with Conventional Joint-Venture Agreements 150

Conclusion 151

Questions and Problems 151

CHAPTER 11 BIDS AND PROPOSALS 153

Public and Private Sector Bidding 154

Public Bidding Statutes 154

Federal Construction Contract Procurement Policy 155

Public Owners'Actions After Bids Received 156

Material Improprieties 156

Factual Determination of the Low Bid 156

Responsive and Responsible Bidders 158

Rejection of Late Bids 160

Rejection of All Bids 161

Bid Irregularities/Informalities 161

Major and Minor Irregularities/Informalities 162

Rule for Determining Major or Minor Irregularities 162

Bidder's Property Right to the Contract 163

Bid Protests 163

Status to File Bid Protests 164

Timeliness 164

Protest to Whom? 164

What Can be Gained by a Bid Protest? 164

Rejection of All Bids in the Public Interest 165

Conclusion 166

Questions and Problems 167

CHAPTER 12 MISTAKES IN BIDS 169

Firm Bid Rule and Doctrine of Mistake 170

Generalized Rules for Withdrawal 171

Timeliness in Reporting Mistakes 173

Proof of the Mistake 173

Duty to Verify a Low Bid 173

Possible Outcomes on Mistake Verification 176

Promissory Estoppel 177

Concept of Promissory Estoppel 178

Elements Necessary to Establish Liability 178

Conclusion 180

Questions and Problems 180

CHAPTER 13 BREACH OF CONTRACT 183

Breach of Contract and Materiality of Breach 184

Breach of Contract 184

Materiality of the Breach 184

Written Notice of Protest 186

Effect of Disclaimers or Exculpatory Clauses 187

Anticipatory Breaches of Contract 187

Express Obligations and Implied Warranties 188

Express Obligations 188

Implied Obligations(Implied Warranties) 188

Frequent Breach of Contract Situations 188

Failure to Make Payment for Completed Work 188

Interference with Contractual Performance 190

The Spearin Doctrine 191

Misrepresentation 192

Nondisclosure of Superior Knowledge 193

Improper Termination of Contract 194

Conclusion 195

Questions and Problems 195

CHAPTER 14 CONTRACT CHANGES 199

Contract Change Procedure 200

Federal Contract Changes Clause 200

Specifics in Changes Clauses 202

Distinctions Between Contract Change Terms 202

Who Is Empowered to Make Changes? 203

Who Is Empowered to Make Formal Changes to the Contract? 204

How are Price and Time Adjustments Determined? 205

“No Pay Without Signed Change Order”Language 205

Constructive Changes 206

Constructive Change Notice Requirements 208

Cardinal Changes 208

Price and Time Adjustments for Contract Changes 210

Forward Pricing 210

Retrospective Pricing 210

Force Account 210

Application of Force Account Provisions to Extended Performance Situations 211

Use of Force Account Records in Determining Breach of Contract Damages 211

Impact Costs 211

Change Order Payment Disputes 212

Judicial Attitude to Payment Disputes 213

Orders for Payment of Disputed Changes 215

Proper Contractor Reaction to Oral or Written Directives 215

Conclusion 216

Questions and Problems 216

CHAPTER 15 DIFFERING SITE CONDITIONS 219

The Federol Differing Site Conditions Clause 220

Type Ⅰ Differing Site Conditions 221

Type Ⅱ Differing Site Conditions 221

Duty of Contractor to Give Notice 222

Duty of Government to Promptly Investigate 223

Equitable Adjustment Provided 223

Differing Site Conditions and Government Liability 223

Other Differing Site Conditions Clauses 224

Does the Clause Cover Both Type Ⅰ and Type Ⅱ Conditions? 224

Does the Contract Contain Conflicting Exculpatory Clauses? 224

What are the Notice Requirements? 227

What are the Owner's Responsibilities Under the Clause? 227

Reasons for Denying Differing Site Condition Claims 228

Lack of Notice 228

Difference Not Material 229

Failure to Conduct an Adequate Pre-Bid Site Inspection 230

Dealing With Differing Site Conditions 232

Prompt Written Notice 232

Request for Owner's Instructions 232

Failure to Receive Determination or Receipt of Adverse Determination 232

Determination of the Equitable Adjustment 233

Conclusion 233

Questions and Problems 234

CHAPTER 16 DELAYS,SUSPEN SIONS,AND TERMINATIONS 235

Delays and Suspensions of Work 236

Time Is of the Essence 236

Delays v.Suspensions of Work 236

Compensable v. Excusable Delay 237

Contractual Provisions for Compensable Delay 238

The Federal Suspension of Work Clause 238

Delays and Suspensions in Other Contracts 239

No-Damages-For-Delay Clauses 239

Judicial Attitudes on No-Damages-For-Delay Clauses 239

Contracts with No Provisions for Delays 242

Delay in Early Completion Situations 242

Causes for Delays and Suspensions of Work 245

Defective Specifications 245

Site Availability Problems 245

Changes and Differing Site Conditions 246

Owner'S Failure to Act Administratively 246

Notice Requirements 246

Purpose of the Notice Requirement 246

Constructive Notice 247

Terminations 248

Requirement for an Enabling Clause 248

Default Terminations 248

Convenience Terminations 249

Conclusion 251

Questions and Problems 251

CHAPTER 17 LIQUIDATED DAMAGES,FORCE MAJEURE,AND TIME EXTENSIONS 253

Liquidated Damages 254

Conceptual Basis of Liquidated Damages 254

Liquidated Damages Provisions Are a Contract Remedy 254

Liquidated Damages Are Not a Penalty 255

Judicial Attitude Toward Liquidated Damages Provisions 256

Bonus/Penalty Clauses 256

Force Majeure 257

Common Conditions of Force Majeure 257

Contract Relief for Conditions of Force Majeure 257

Time Extensions 257

Importance of Notice of Claim 258

Contractor Responsibility to Prove Entitlement 259

Owner's Responsibility and Contractor Time-Extension Requests 259

Granting of Time Extensions 259

Conclusion 260

Questions and Problems 260

CHAPTER 18 ALLOCATING RESPONSIBILITY FOR DELAYS 263

Preliminary Points and Definitions 264

As-Planned,As-Built,and Schedule Update Networks 264

Owner Responsibility Delays 267

Contractor Responsibility Delays 268

Excusable Delays 269

Incorporation of Delays into the CPM Network for Delay Impact Analysis 269

Forward-Looking and Retrospective Impact Analysis 270

Consecutive and Concurrent Events 270

Four Principles Governing Delay Impact Analysis 270

Delay Impact Analysis For Single-Path Projects 273

Delay Impact Analysis For Multi-path(Concurrent Path)Projects 275

Delay Impact Analysis For Complex Projects With SeveralInterconnected Concurrent Paths 277

Owner Liability for Delay Damages 279

Has the Contractor Met the Burden of Performance? 279

Contractor-Caused Delay to Project 280

Contractor Liability for Liquidated Damages 280

Contractor Entitlement to Extension of Time 281

Summary of Delay Impact Analysis 281

Determining Damages Offset 281

Conclusion 281

Questions and Problems 282

CHAPTER 19 CONSTRUCTIVE ACCELERATION 285

Voluntary and Directed Acceleration 286

Acceleration and Voluntary Acceleration 286

Directed Acceleration 287

Constructive Acceleration 287

A Constructive Acceleration Example 288

Case 1—Delay with Time Extension 288

Case 2—Delay with No Time Extension 289

Case 3—Accelerated Performance Without Delay 289

Proving Constructive Acceleration 290

Entitlement to Time Extension 290

Failure of Owner to Issue Extension of Time 291

Proof of Extra Costs 291

Completion Before Date to Which Contract Should Have Been Extended 292

Effect of an Owner's Directive to Accelerate 292

Contractor's Proper Contractual Procedure 292

Conclusion 293

Questions and Problems 293

HAPTER 20 DOCUMENTATION AND RECORDS 295

Documentation 296

“Put-It-in-Writing”Rule 296

What is Documentation? 297

Value of Good Documentation 297

Exceptions to the Hearsay Rule 298

Conditions for Introduction of Job Records 298

Typical Job Records 299

Letters of Transmittal and Submittal 300

Letters of Notice 300

Letters Requesting or Disputing Instructions or Letters of Protest 301

Confirmations and Meeting Minutes 301

Routine Job Records 301

Contractual Notices,Orders,or Directives 301

Personal Diaries 302

Job Document Matrix 302

Conclusion 302

Questions and Problems 302

CHAPTER 21 DISPUTE RESOLUTION 305

Courts of Law 306

Lawsuits in the Federal Court System 306

Lawsuits in the State Court System 306

Determination of Venue 307

Features of Court Trials of Lawsuits 307

Hearings Before the Federal Boards of Contract Appeals 308

Arbitration 309

AAA Arbitration under Construction Industry Rules 310

Party Arbitration System 311

Single Arbitrator System 311

Features of Arbitration Proceedings 311

Alternative Dispute Resolution 312

Mediation 312

Mini-Trials 312

Disputes Review Boards 312

Conclusion 313

Questions and Problems 313

BIBLIOGRAPHY 315