Into the Deep

Nowhere can construction lawyers delve deeper into the substance and life of construction law than in the Forum.  The annual meeting in Las Vegas, presided over by our own Tom Rosenberg and Kerry Kester, and by Bill Franczek, was no exception.  If you missed it, look for these presentations in the materials which will soon be available on the Forum’s Knowledge Base. 

Plenary 1.  Jeff Applebaum came out blazing in plenary 1, talking fast and keeping us on the edge of our seats trying to absorb as much as possible of his unique wealth of experience in selecting project delivery options.  He spoke of educating owners, prioritizing project parameters, assembling all stakeholders, being cognizant of constraints, and identifying the optimal time for risk transfer.  Ross Altman spoke of transactional considerations from the Parthenon in 447 B.C., to the tricky replacement of a cable stay bridge by Transport Scotland.  He spoke of the single point of contact that lenders are looking for and how this might determine who is in the best position to finance a project.  On some projects this might not be the owner.  Finally, Jeff Gilmore spread before us a smorgarshboard of delivery systems. 

Plenary 2.  John Bulman, Joel Heusinger, and Allison Snyder delved into the intricacies of joint defense agreements.  If you are considering a joint defense agreement, or wondering about their pros and cons, check out their written materials, they are great. 

First workshops.  Too much to choose from!  I opted for Cathy Shanks’ and Danny Shaw’s discussion of dispute resolution provisions in IPD.  They had lots to say about the ConsesnsusDocs 300, and the AIA C191 agreements.  Check out their materials, and check out the materials on letters of credit vs. bonding presented by Jonathan Dunn and John Petro, and the materials on public private partnerships by Jayne Czik and Michael Sterling. 

Awards and Tributes.  “Insurance law is sexy!” so said Terry Galganski.  Jim O’Conner combined insurance law, Galganski lore, poetry, and some mighty fine prose in making a room full of trial lawyers lachrymose with his tribute to Terry.  George Meyer got all choked up too in his farewell speech.  What is it about this Forum that stirs such deep emotions? 

Plenary 3.  Adrian Bastianelli moderated a panel with John Carpenter, Judy Herman, and Chris Ng discussing fine points of the CM-agent vs. the CM-at-risk relationship.  What do Tishman and Kiewit look for in their CM agreements?  Check out the materials on the knowledge base and find out. 

Second workshops.  More riches.  I attended the workshop presented by Kim Hurtado and Michael Varadaro on negotiating contracts that incorporate BIM models.  Avoid placeholders in a BIM model, they can cause trouble!  What happens if a virus takes down the model?  Who is the gatekeeper for the model?  Who archives the record set of the model, and how?  For answers to these and many more questions check out the program CD, or check the knowledgebase.  And while you’re at it, don’t miss Robbi McPherson and Melissa Beutler’s paper on key issues to negotiate with different delivery systems, and Roberto Hernandez-Garcia and Wendy Venoit’s contribution on cross-border transactions. 

Plenary 4.  Eileen Diepenbrock and Michael Loulakis shared their insights on design build.  Look at the recent studies noted in the materials showing the rapid growth of this delivery model.  The Penn State study remains a large presence.  Check it out.

Plenary 5.  SBA’s implementation of the Mentor Protégé programs, minority, women, and veteran owned small business programs; read all about it in Patricia Meagher’s, Denise Farris’s, and Larry Harris’s (moderator) materials. 

Third workshops.  I admit, I was getting a little distracted by this time trying to download Division 4’s breakfast speaker podcast onto Dave Owens’ computer.  So I only listened with half an ear to the presentation by Julia Davis and Richard Stockenberg on alternate delivery models from the subcontractor perspective.  Sorry Julia!   But I will be sure to check out their materials.  And be sure to look at the materials prepared by Keith Bergeron and David Zimmerman on the role of design professionals on each delivery system, and Joel Gerber and John Miller  on the role of owners and lenders.  While you’re at it, click on our podcast of Jim McLamb’s talk at our breakfast forum about the Lean Construction tools they used, but with a traditional GMP contract, on the Disney Carsland Project.  This will be available on our Division 4 site.

Plenary 6.  Mike Tarullo moderated a great panel with Bill Gammon and Tom Gourlay, Jr. (chief trial lawyer for the Corps of Engineers) discussing federal contracting models:  MATOC (multiple award task order contracting), ID/IQ (indefinite scope, indefinite quantity) contracting under FAR 16.506,  and ECI (early contractor involvement contracting) using both CM-agent models and CM-at-risk models.   Check out their materials if you think you might get near one of these projects.

Plenary 7.  Joe Cleves and Lisa Dal Gallo came out breathing fire about “mere talk of IPD” vs. actually doing IPD.  Real IPD is a multi-party party agreement where people put their fee at risk.  Mere talk of IPD is salesmanship gloss over business as usual.  I’m paraphrasing, but come check out their materials and see what real IPD looks like. 

Plenary 8.  And no program would be complete without some ethics credit.  This one was a few cuts above:  Leslie O’Neal-Coble, Jim Scott, and Andrew Perlman presented the revisions to the ABA model rules coming out in light of the Ethics 20/20 commission. 

Friday night I joined a large group treated to a lovely evening at the Mob Museum by Hill International.  Everyone was in high spirits, elevated and bonded by two days of excellent programming (and some tasty pink grapefruit martinis—“suffig” the Swiss would say).  Getting off the bus on the way back to the Bellagio I had the good fortune to walk lock step with Doug Oles.  “Back to shallow,” he said.  I think I know what he meant.