As I took a small break between cases and contract reviews, an article in the November 2, 2009 issue of ENR Magazine caught my eye.  The article discusses the efforts of a Chicago architect to create a holistic approach to the renovation and “de-carbonization” of the Chicago Loop area.  The plan involves large scale energy retrofits and sustainable reuse of Chicago’s tall buildings.

Another interesting aspect of this article points out that tall buildings in general have hit the construction skids in the US and Latin America, this is not the case in Europe and the Middle East.  However, those buildings that are going up (and up and up) are trying to go “green.”  Several of the worlds tallest buildings, or soon to be so, are seeking LEED gold or platinum certification.

These two trends, in my view, are healthy.  First of all, much like the goal of Build2Sustain, the Chicago effort is a move toward sustainable reuse and retrofit/renovation.  I see this as a great trend and a way to perform the “Three R’s” (Reduce, Reuse, Recycle), by reusing existing building materials and footprints without the cost and use of newer materials from tear downs and rebuilds.

Second of all, the trend toward “up not out” seems to me to be a great thought.  Of course there are certain physical limits to the trend toward taller and taller buildings, but as a whole, the smaller the footprint, the more sustainable the building.  Taller means closer together, and closer together means better walking paths and easier access to public transportation among other “green” benefits.

The fact that LEED is going international in this way is a good thing as well. It means that the world, including places like China, is moving in the right direction.

What do you think?  Am I on the right track? This post is meant to be a discussion starter, so I really would like to hear from readers of Musings through comments, tweets and other avenues of contact.

I encourage you to comment below and subscribe to keep up with the latest Construction Law Musings.

For this week’s Guest Post Friday, Musings has the pleasure of welcoming Jan Thomas, President of Circle Safety & Health Consultants, LLC for her second Guest Post. Jan is an occupational safety and health professional with doctorate, over 30 years of experience at the federal, state and university levels, and professional certification. Her background includes regulatory compliance, accident and fatality investigations, development of policy and procedures, program management and extensive experience in education, training, research, technical writing, forensic consultation and expert witness testimony. She is also a friend of mine and can be found on LinkedIn or by e-mail.

We usually think about safety on construction sites with the focus on workers. The federal or state OSHA jurisdiction on commercial construction begins where an employer-employee relationship exists. In addition, CPL 2-0.124 –Multi-Employer Citation Policy dictates overall jobsite safety between contractors. So, when we need some basic guidance on safety we grab the OSHA standards.

But what about safety of the public – on adjoining streets or sidewalks, or across the fence in the school yard, or even across the intersection? What about invited visitors on site? OSHA is almost silent.

Some of the OSHA rules for protecting workers do secondarily protect the public. For example, OSHA requires placarding of parked equipment, barricading of open trenches or the swing-radius of a crane, and using flaggers at traffic work zones. But these are few and indirect.

What may be needed is an actual plan for public safety, especially at sites where the public is ever present (city streets) or in high-risk areas (near schools). Common sense may help guide such a plan but you may want to also check out a little-known consensus standard – ANSI/ASSE A10.34-2001 (R2005) Protection of the Public on or Adjacent to Construction.

Here is a quick review. The public is defined as “All persons and property not affiliated with the construction project. This includes invitees to the construction project who are not employed by the project constructor or contractors.” What about trespassers? They are excluded from the definition of the public. But, be sure to put up those No Trespasser signs to defend your property rights.

The consensus standard provides guidelines for developing a site-specific public hazard control plan and emergency action plan. Fourteen specific hazards are identified and the standard’s appendix provides a checklist. The consensus standard is fairly short but is a great place to start your thought process for extending safety beyond the boundaries of your construction site.

As I have discussed at Musings on several occasions, the general rule in Virginia is that fraud and construction contracts do not mix.  In other words, most of the time, even where a contractor clearly misrepresents the work performed, an owner can only recover in contract, and not for fraud with its potential for punitive damages and the like.

However, the recent case of Brin v. A Home Come True, Inc, et. al. reminds us all that an exception to this general rule exists.  In Brin, the Fairfax, VA Circuit Court upheld damages for fraud against one of two contractors who allegedly conspired to defraud a homeowner.  Brin is a case where A Home Come True misstated the class level of its contractor’s license.  Another contractor agreed to let A Home Come True use its license and therefore was a part of the conspiracy.  The Court held that such “fraud in the inducement” is actionable outside of the contract.  The court, like others before it, reasoned that unlike false or misleading statements as to the quality of work done under the contract, fraud used to get an owner to enter into the contract in the first place is in fact actionable.

On a side note, the particular defendant, Mr. Gierlinger, did not respond to the initial lawsuit and was therefore held in default.  The Court was therefore less than sympathetic to his claims.

Two lessons from this case.  One, if you get sued, hire a lawyer and make sure that you show up for court.  Two, if you are a contractor, make sure that your advertising and sales statements (particularly relating to your license) are accurate.  If you make statements that are untrue, you could be held liable for fraud should one of your subcontractors or even your employees do something to keep you from fulfilling your contract.

UPDATE:  This case is under appeal to the Virginia Supreme Court.  I’ll keep you posted on the results.

As always, I welcome your comments below.  Also, please subscribe to keep up with this and other Construction Law Musings.

For this week’s Guest Post Friday, Musings takes a slightly different, yet great, perspective on the world of construction business and welcomes a good friend, Tina Marie Hilton (@tmariehilton on Twitter).  Tina provides virtual assistance services to legal professionals and business creatives through her company Clerical Advantage. She’s proud to be part of the faculty at Solo Practice University, teaching solo attorneys how to successfully work with virtual assistants. You can also find her as contributing editor at Home Office Warrior in the Virtual Assistant section, at Blog for Profit, providing tips, hints and information on having a successful business blog and helping Baby Boomers reminisce and connect at My Boomer Community, the official blog for the North Carolina based Baby Boomer News magazine.

The current economic conditions have had an effect on the majority of businesses in some way, shape or form. But perhaps one of the hardest hit industries has been construction. According to a recent article on CNN.com, initial construction of homes in the U.S. rose far less than expected in September 2009. That means that more and more companies are looking to cut costs in order to survive this economic downturn.

For many, that might mean cutting back on administrative help and going the ‘do it yourself’ route. On the surface, it seems to make sense, it means fewer paychecks you have to cut and how hard is it really?

You may be surprised.

Many business owners assume that the clerical aspects of their businesses are easy. It is shocking for them to realize the amount of time these ’simple’ tasks actually take. When you add fumbling around with unfamiliar software to the mix, it can eat up extremely large chunks of time. Trying to juggle those administrative tasks with running your business gets overwhelming fast. Not to mention that it can end up costing you money if certain tasks are going undone and deadlines or due dates are being missed.

That’s what makes teaming up with a virtual assistant a wise choice for construction companies looking to cut costs, yet still perform at the level customers have come to expect.

A virtual assistant (or VA for short) can be hired for specific tasks or for a set number of hours per month to handle just about any administrative help your construction company might have need of. Yes, even if it’s only 2 hours a month. You pay only for the time spent on your tasks, no taxes or benefits. The cost savings can be substantial.

One can find a virtual assistant to do just about any task or project you may be in need of.

Need someone to do payroll? There’s a VA for that. How about someone to handle phones, e-mail or correspondence? There’s a VA for that. Need help with your website or a blog? Yup, there’s a VA for that too.

In fact, there are virtual assistants that have extensive experience in the construction industry and can handle industry related tasks like:

· Materials and services pricing and inventory analysis

· Statute and regulation research

· Document preparation including, but not limited to, bid proposals and lien claims

· Subcontractor background checks

· Project planning/time management support

Our current economy requires that construction companies think outside the normal business box. Cutting costs doesn’t mean you have to cut corners. By integrating new technologies and service options like a virtual assistant you can give your company the edge it needs to not only survive but grow in a down economy.

As always, please join the conversation with a comment below.  Also, please subscribe to keep up with Guest Post Fridays and other Construction Law Musings.

Now that Musings has been around a while, I finally decided that you should see the guy that is behind all of these construction “musings.”

This week’s Guest Post Friday is a bit different.  This time, I get to “muse” at @andreagoldman’s Massachusetts Builders Blog.  Andrea gave me the great opportunity to talk about the Miller Act.  Here’s an exerpt:

Federal and State government work are a growth area in construction these days. With the economy in a downturn (though possibly turning around according to ENR), government projects are even more desirable for commercial contractors.

With this trend toward government contracting, becoming the lowest bidder and squeezing your margins is a big temptation, or even necessity. Along with this lower margin comes higher risk.

However, one saving grace for contractors on Federal projects is the Miller Act. Essentially, the Miller Act was created because contractors cannot put a mechanic’s lien on federal government property. It requires that all projects with a contract value over $100,000.00 have a payment and performance bond, provided by the general contractor.

For the rest of my thoughts, click here.

Thanks again to Andrea for the opportunity.  I recommend her blog highly.

As always, please join the conversation with a comment below.  Also, please subscribe to keep up with this and other Construction Law Musings.

On November 1, 2009, DurretteBradshaw, PLC will welcome  Bruce Arkema and Kevin Funk, currently with Cantor Arkema, as a Shareholder/Director and Principal, respectively.  They will practice primarily in the areas of business and commercial litigation with particular emphasis on construction law, bankruptcy, petroleum distribution law, and equitable distribution of marital assets.  Bruce and Kevin will provide DurretteBradshaw with additional strength in its core practice areas.  With their superb reputations and existing client base, they will add enormously to our Firm and we are excited about the opportunities their addition to the Firm will provide.