By Steve Rizer
When striving to identify an appropriate delivery system for a construction project, it is important to take into account certain key circumstances involving the owner, Scott Pence, an attorney in the Tampa, Fla., office of Carlton Fields, P.A., told a group of professionals attending a webinar that WPL Publishing held last month.
The owner’s staff and experience level represent one such consideration, Pence said. He pointed out that some delivery systems require less owner involvement while others necessitate “a lot more involvement on the part of the owner. And so, depending on the owner’s structure, if [the owner is] very small and [does not] have a lot of personnel involved, [it] probably [is] not going to be very well equipped to handle one of those delivery systems that requires a lot of detail review and involvement.” Conversely, a much larger owner perhaps will have “all of those people on staff who are very well educated and experienced and deal with those issues day in and day out and [be] very well equipped to … handle any kind of delivery system that you deem as appropriate.”
Another consideration involves the “makeup” of the owner and its decision-making process, Pence said. For example, a “really large” owner could have many different divisions and corporate policies in place that need to be dealt with, affecting decisions on contract language.
Pence stressed the importance of addressing circumstances in which a standard form document may not jibe with an owner’s traditional practices. For example, a payment process spelled out in a form could “be great and work fine if that is what everybody follows,” but if an owner is accustomed to doing business another way, the owner may have “no intention” of following the stated procedure. “So, it’s one of those things that you need to talk through and determine [whether there are] any of those types of considerations. If there are, make sure that you’re addressing those and including those in the contract and that hopefully you’re contract accurately reflects the way that [particular] entity is doing business.”
When gauging a delivery system for a project, it is important to determine whether there are specific owner goals that need to be achieved, Pence said. “For example, LEED [Leadership in Energy and Environmental Design] requirements these days are a pretty big thing, and so, if the owner has those types of goals and wants to get a certain LEED certification or some other environmental certification, those are things that are going to have to be addressed in your contract, and, typically, in the standard forms, [such provisions] are not addressed, and so these … ‘special circumstances and goals’ would need to be addressed in the miscellaneous section.”
It is also prudent to determine whether there are funding restrictions, Pence said. “There could be a lender involved, but, in particular, there might be internal funding source restrictions, a budget, or other things that you need to consider and make sure you’re properly and adequately accounting for in your contract.”
Furthermore, procedures concerning the bidding and awarding of contracts also represent an important consideration, Pence said.
During the webinar, Pence and fellow Carlton Fields attorney Lauren Catoe also discussed the following other topics: identifying the appropriate contract document form; special contract provisions and considerations; miscellaneous issues relating to construction projects; and what the various types of delivery systems are. They addressed a target audience of architects, engineers, owners, developers, contractors, construction law attorneys, consultants, project managers, construction managers, presidents, vice presidents, controllers, and others.
A recording of the webinar, entitled “Delivery Systems: Understand the Potential Risks and Benefits Associated with Different Delivery Systems,” can be purchased via the following link: http://constructionpronet.com/Products/1027.aspx.
