Wednesday, August 15, 2012

Army Solicits Bids for New Design-Bid-Build Hospital Construction at Fort Bliss in El Paso, TX

Congress has allotted $946 million for construction of a new 135-bed hospital complex at the William Beaumont Army Medical Center in El Paso, Texas.  HDR Architects from Omaha, NB designed  what appears to be a traditional design-bid-build project. 
Clark/McCarthy Healthcare Partners, a joint venture of Clark Construction of Maryland, and McCarthy Construction Companies of St. Louis; Hensel Phelps Construction Co., based in Colorado; and a joint venture of Manhattan Construction Group, of Tulsa, and Hunt Construction Group, based in the Phoenix area, and not tied to Hunt Companies of El Paso, are companies that have made it known they will submit bids to be the project's prime contractor.
The Army Corps of Engineers is expected to issue the final bid solicitation for the project this week. Bids will likely be due by the end of September or early October. ....
Tom Fisher, vice president of Hensel Phelps' Southwest district headquarters in Austin, said his company did $750 million worth of projects in the last five years during the Fort Bliss expansion.

Monday, August 13, 2012

Lessons from a war

I'm always hesitant to compare any other human endeavor to warfare.  Art Donovan, the Baltimore Colts' Hall of Fame defensive tackle and WWII Marine, said it best: "People say football is war.  Football ain't war.  The guy in the trench over there doesn't know what a nice guy I really am."  My reticence notwithstanding, there are some parallels between war and litigation, and one parallel in particular is important: in each endeavor, we are striving to accomplish a goal in the face of an opponent who is striving to ensure we don't reach that goal.  With that in mind, it is fair to say that we can, on occasion, learn something from those whose struggles were more literal, and more serious, than our own.

One lesson that has served me well in my practice comes from Ulysses S. Grant, the nation's second five-star general: remember that your opponent is as scared of you as you are of him.  The story of that lesson, as it played out in Grant's career and as applied to our careers, is an interesting study.

1. The Lesson


While Ulysses S. Grant went on to great acclaim as the commanding general first of the Army of the Tennessee and later of the entire Union Army, the beginning of the Civil War found Grant in command of a relatively small (just over 3,000 men) regiment consisting largely of volunteers, rather than trained soldiers (Grant was a West Point graduate, and his prior war-time experience had been the Mexican War, during which the United States' forces were almost exclusively trained, professional soldiers).  Furthermore, while Grant began the Civil War as a Colonel, he had left the Army in 1854 as a captain, and had never been ultimately responsible for a post or region before---Grant had always had a superior whose orders he could follow, and who was responsible for strategic decisions.  Thus, in 1861, when Grant found himself in command of the Twenty-First Illinois Volunteer Regiment, and responsible for the District of Cairo (Illinois), he was in a position he had never filled before: that of ultimate authority over his men, and his region.

In July of 1861, Grant and his regiment was on its way to Quincy, Illinois when he was informed that Confederate forces had surrounded Union troops near Palmyra, Missouri.  Grant changed course to relieve the Union garrison.  In his memoirs, Grant wrote: "My sensations as we approached what I supposed might be 'a field of battle' were anything but agreeable.  I had been in all the engagements in Mexico that it was possible for one person to be in; but not in command.  If some one else had been colonel and I had been lieutenant-colonel I do not think I would have felt any trepidation."[1]  Grant arrived in Palmyra to find that the Confederate forces had decamped prior to his arrival, but was ordered to continue south to Florida, Missouri, and engage Confederate Colonel Thomas Harris, who was believed to be encamped in that area.  Grant recounted the morning his forces arrived at Harris' encampment this way:

As we approached the brow of the hill from which it was expected we could see Harris' camp, and possibly find his men ready formed to meet us, my heart kept getting higher and higher until it felt to me as though it was in my throat.  I would have given anything then to have been back in Illinois, but I had not the moral courage to halt and consider what to do; I kept right on.  When we reached a point from which the valley below was in full view I halted.  The place where Harris had been encamped a few days before was still there and the marks of a recent encampment were plainly visible, but the troops were gone.  My heart resumed its place.  It occurred to me at once that Harris had been as much afraid of me as I had been of him.  This was a view of the question I had never taken before; but it was one I never forgot afterwards.  From that event to the close of the war, I never experienced trepidation upon confronting an enemy, though I always felt more or less anxiety.  I never forgot that he had as much reason to fear my forces as I had his.  The lesson was valuable.[2]

2. The Outcome

While we are all aware that the Union won the Civil War, and while most of us are generally aware that Grant was instrumental in that victory and became first a hero to the American public and then a two-term President (a role he proved to be much less suited for), the precise mechanism of Grant's victory is not nearly as well known.  While entire books have been written about the Civil War's endgame, a cogent summary of Grant's tactics suffices for our purposes.  The Overland Campaign had two major components: General Sherman would transit the deep South to disrupt Confederate supply chains, while Grant would enter Virginia to locate, engage, and destroy General Lee's Army of Virginia.

Grant's portion of the Overland Campaign consisted of a series of battles against General Lee, which are remembered (in order of occurrence) as The Wilderness, Spotslyvania, North Anna, and Cold Harbor.  From an outside perspective, none of these battles individually, and certainly not the battles collectively, appear to be Union victories.  Total Union casualties for these battles were 52,788, while Confederate casualties were 32,907.  Following Cold Harbor, Grant besieged Petersburg, Virginia, a vital railroad hub.  The first weeks of the Petersburg siege looked as mathematically bad for Grant as the Overland Campaign up to that point: the Union was suffering casualties at three times the rate of the Confederates.  But Grant's constant westward elongation of the Petersburg siege line thinned Lee's lines to the breaking point, and on April 2, 1865, Petersburg fell to Union forces.  Lee surrendered to Grant at Appomattox Courthouse on April 9, 1865, effectively ending the Civil War.

Civil War historians and military academics are sharply divided in their judgment of Grant as a commanding general.  Grant's detractors argue, in essence, that Grant's victory was ultimately merely a numbers game---by the time Grant rose to command of the Union armies, Union forces so overwhelmingly outnumbered Confederate forces that victory was almost a foregone conclusion.  Detractors frequently point to Grant's inordinately high casualty rates as evidence of his lack of skill as a commanding officer and tactician.

Putting aside the true size of the Union numeric advantage under Grant's command (which has been, and continues to be, hotly contested), there are several points to be made in Grant's defense.  First, the Union had enjoyed numeric advantages throughout the Civil War, and yet General Lee and the Confederates had consistently won battles against Grant's predecessors.  Second, while Grant's armies indeed suffered significant casualties, any critique of Grant's tactics must begin with an admission that Grant achieved his goal: the defeat of Lee's Army of Virginia.  This has been the primary Union goal since the beginning of the war, and Grant achieved that goal in little more than one year.

Grant's tactics in the Overland Campaign directly recall the lesson he learned in Missouri.  Grant knew General Lee's reputation as an effective and brilliant general, and certainly Grant knew of Lee's past successes against the very army Grant was to lead.  Yet if Grant was in any way afraid of Lee or his army, the tactics of the Overland Campaign do not reveal it.  Grant entered Virginia to engage Lee's army, and once the armies were engaged, Grant pursued Lee wherever Lee took his forces.  As often as not, the location of their battles was determined by Lee, and Grant's forces were often attacking entrenched, defensive positions.  Many Union generals before Grant had avoided engaging Lee when they would have to attack defensive positions.  Grant had no such compunction.  And, while Grant's casualty rate was high, no one can argue with the results of his campaign.
 
3. The Application to the Practice of Law
 
Lawyers constantly obsess about the weaknesses in our cases.  By the time discovery is in full swing, no one knows the holes in our case like we do.  Further complicating matters, many times our clients either cannot or will not recognize that these same problems exist, and many clients who will admit their own problems brush off any concerns with a "it doesn't matter that we did X, because they did Y, which is much worse" approach.  Thus, the lawyer, particularly the partner in charge of the case, is left virtually alone to worry about how to deal with the holes in his or her case.

There are several important lessons we can learn from Grant.  First, remember that when we say "no one knows the problems in our case like we do," that is usually literally true.  So long as you have made a thorough investigation and done an appropriate, neutral analysis, at any time during the litigation, you are more familiar with the weaknesses in your case than your opponent is.  Second, remember that you're not the only one agonizing over the problems in your case---your opponent probably is, too.  Rather than just thinking about why you are afraid of your opponent's case, spend some serious time thinking about why your opponent should be afraid of your case.

It is also possible to use this lesson to your advantage in settlement negotiations.  Just as we all know the weaknesses of our own cases, so too we recognize when our opponent has identified one of these weaknesses.  As parties enter settlement discussions (whether they are formally-structured negotiations like mediation, or informal counsel-to-counsel negotiations), their view of their own case is influenced by what has transpired in the litigation.  If you can focus early discovery on your own theories of the case, you should be able to identify enough weaknesses in the other side's case to favorably tip the negotiating field in your favor.


[1] Personal Memoirs of U. S. Grant, Grant, Ulysses S., Konecky & Konecky Edition, at page 148.
[2] Id. at page 149.

Tuesday, August 7, 2012

DOD and Department of Interior Band Together to Leverage Available Land for Renewable Energy Development

The U.S. Defense Department has announced that it will open up 13 million acres surrounding bases for development of renewable power projects, like solar and wind.  The goal is to help the military reduce its $4 billion annual energy bill and to provide energy independence for security puroses.

A study released by the Defense Department this year estimates that land surrounding just four military bases in Southern California could generate seven gigawatts of solar energy.  The January 2012 report concluded:
Such on-site energy generation, together with energy storage and so-called smart-microgrid technology, would allow a military base to maintain its critical operations “off-grid” for weeks or months if the grid is disrupted.
Accordingly, on August 6, 2012 Leon Panetta announced a joint memorandum of understanding between the Departments of Defense and the Interior that sets aside public lands and other onshore and offshore areas near military installations for development of renewable energy projects.
Each of the military services has committed to deploy 1 gigawatt of renewable energy on or near its installations by 2025. .... Defense installations encompass roughly 28 million acres in the United States, of which 16 million acres previously managed by the Interior Department’s Bureau of Land Management were withdrawn for military use by executive order, congressional legislation or departmental regulations. About 13 million acres of these withdrawn lands are in the West and are high in wind, solar and geothermal resources.
Offshore wind also is an abundant renewable energy resource available to many coastal installations. Offshore Atlantic winds alone could produce an estimated 1,000 gigawatts of energy, Interior Department officials said.
The memo ... establishes a framework for an offshore wind partnership in which the Defense and Interior departments will continue to work together to identity areas most appropriate for offshore wind development. To encourage a dialogue with industry, the departments will co-chair a military/industry offshore wind forum this fall to initiate information sharing among the military, other federal agencies and industry. ....  [T]he Defense Department will explore ways in which renewable energy could be provided directly to a single installation or may be transmitted across a network of installations. Some larger projects could involve the sale of excess power to the grid, provided appropriate measures ensure base security. ....  DOD and the Bureau of Land Management will develop a pilot process for authorizing solar energy projects on several military installations, including the Barry M. Goldwater Range and Yuma Proving Ground in Arizona and Fort Irwin, Calif. The Defense Department will take the lead in permitting and leasing for renewable energy projects on lands withdrawn for defense-related purposes.