By all accounts, Design-Build (“DB”) has become the delivery method of choice for most owners of public infrastructure projects (“PIPs”) such as highways, rails, bridges, tunnels, airports and other projects. While DB delivery of PIPs is, beyond doubt, here to stay, contractors and consulting engineers (and other design professionals) involved in PIPs have experienced substantial financial losses and unacceptable levels of imbalanced risk transfer and liability exposures on a prevalent basis.Read More
September 2022 Roundtable – Design Assist, Design Delegation, Design-Build: What are the Differences?
Join us Tuesday, September 27th, when David Hatem will present the Roles, Responsibilities and Risk Allocation for Design Professionals in the context of various Project Delivery Approaches including a discussion of the increased utilization of collaborative approaches to Project Design, and issues associated with design delegation and design assist, CM/GC and Progressive Design-Build.
Questions that will be addressed:
- What are the essential differences between Design Delegation and Design-Assist?
- Who has responsibility for design risk and design adequacy in Design-Assist?
Inside This Issue:
Note from the Editor
As summer is ending, we hope this finds you well and refreshed. We look forward to positive energy in the industry with new spending and ambitious programs underway.
In this edition of the Reporter we discuss a case where the Civilian Board of Contract Appeals awarded equitable adjustment to a GSA contractor for defective specification in an RFI, a Nevada decision holding breach of contract by an architect under state law is not preempted by the ADA,Read More
Texas Appellate Court Holds Certificate Of Merit Against One Design Professional Does Not Apply To Sub Consultant By Mere Reference To Such In A Pleading
The Texas Court of Appeal (14th District) issued an April 2022 opinion in Thompson Hancock Witte &
Associates v. Stanley Spurling & Hamilton, 2022 WL 1010270, affirming that state’s requirement for a certificate of merit in a suit against a design professional. In particular, the Court held a certificate of merit directed toward one professional would not, through simple reference in a pleading, apply to another professional even though the alleged breach of the standard of care is the same for both.
A Statute of Repose, for purposes of this discussion, bars a claim against design professionals and contractors after passage of a certain amount of time from project completion. This is similar to but different than a Statute of Limitations, which sets a deadline to commence a lawsuit measured from the time an injury occurs or when a professional engagement, if injury occurred during that engagement, ends. The rationale behind the former is to allow design professionals and contractors to put a project to rest,Read More
Nevada Supreme Court Finds Breach Of Contract Against Architect Under State Law Is Not Preempted By The ADA
In December 2021, the Nevada Supreme Court held state law claims brought against an architect for failure to comply with ADA Guidelines were not preempted by the Americans with Disabilities in Board of Regents of Nevada System of Higher Education on Behalf of the University of Nevada, Reno v. Worth Group Architects, P.C., 499 P.3d 1177 (Nev. 2021). Worth Group Architects, P.C. (“WG”) was contracted to design renovations to Mackay Stadium,Read More
On November 21, 2021, the Civilian Board of Contract Appeals (the “Board”) (an independent tribunal within the General Services Administration (“GSA”) that presides over contract disputes between government contractors and agencies under the Contract Disputes Act) issued a decision in Wu & Associates v. General Services Administration. Wu & Associates (“Wu”) challenged a denial by the GSA for additional funds for claimed expanded scope of work. Specifically, Wu sought additional funds to strengthen flooring in order to move heavy equipment for an elevator modernization project.Read More
Steve Willig, a partner in the firm, will be speaking at the Design-Build Institute of America (DBIA) New England’s September Friday Forum via Zoom to be held on Friday, September 9, 2022.
His presentation, “Design-Build – Smart Ways to Maintain a Productive Designer-Contractor Relationship,” will discuss techniques to develop at the outset, as well as to maintain throughout the project, that help cement a good working relationship between designer and contractor — ways to make sure you keep the project moving and avoid road bumps.Read More
Boston, MA (August 2022) – Donovan Hatem LLP is pleased to announce that James N. Worden is now a partner of the Firm.
James joined the Firm’s Litigation group in 2021 as Of Counsel, bringing significant experience in Construction Litigation, Design-Bid-Build and Design-Build project delivery and specializes in handling contract negotiation, claim presentation, and litigation of both public and private construction project disputes.
Since joining Donovan Hatem LLP, James has exhibited leadership and expertise in addressing the issues of concern facing the Firm’s clients,Read More
Join Donovan Hatem and ACEC/MA at Design-Build for Consulting Engineers
2 Sessions: July 14 + July 20: (Register for 1 or Both Sessions)7:30 AM: Registration, Hot Breakfast | 8 – 10:30 AM ProgramMHA Conference Center, 500 District Ave, Burlington, MA (with Zoom option)
Please contact firstname.lastname@example.org for more information and the form to register
July 14: Design/Build: Professional Liability Risk For Consulting Engineers
• David J. Hatem, PC,Read More
Article: Washington State Department of Transportation v. Seattle Tunnel Partners: Appellate Court Affirms Denial of DSC Claim
In a June 14, 2022 Unpublished Opinion, the Court of Appeals of the State of Washington in Washington State Department of Transportation v. Seattle Tunnel Partners, No. 54425-3-11, 2022 WL 2132780, (Wash. Ct. App. 2022), (“WSDOT-STP”) affirmed a Trial Court judgment denying entitlement of a Design-Builder’s differing site condition (“DSC”) claim.
The WSDOT – STP litigation arose out of the Alaskan Way Viaduct project,Read More
Boston, June 15, 2022 – Donovan Hatem LLP is pleased to announce that David J. Hatem, one of the Firm’s founding Partners, has earned top ranking in the 2022 edition of Chambers USA: America’s Leading Lawyers for Business. This year, Chambers selected David as a leading practitioner awarding him Band One recognition in the Construction category.
Throughout his career, David has excelled at the representation of and strategic guidance to architects and engineers,Read More
David Hatem will be a presenter at the ACEC Executive Forum to be held on June 14, 2022 in Toronto, CA.
David will discuss Design-Build and Public-Private Partnership Projects: Professional Liability Risk and Professional Indemnity Insurance Implications.Read More
David Hatem will be a panelist at the Underground Construction Association’s 2022 North American Tunneling Conference to be held June 19 – 22, 2022 in Philadelphia, PA.
David’s topic, “The State of DRBs in the Tunnel Industry” will take place on Tuesday, June 21, 2022 and explore Dispute Review Boards. In a joint effort between the UCA of SME and the Dispute Resolution Board Foundation (DRBF), the authors embarked on an informal assessment of the state of the DRB practice in the tunnel industry from the point of view of the Contractor,Read More
Available Now! Project-Specific Professional Liability Insurance on Design-Build and Public-Private Partnership Projects in North America White Paper
In January 2022 Donovan Hatem LLP established a Task Force consisting of professional liability insurance underwriters, brokers, engineers and architects, and lawyers knowledgeable and experienced in various aspects of Project-Specific Professional Liability Insurance (“PSPL”) on Design-Build (“DB”) and Public-Private Partnership (“P3”) projects in North America.
The mission of the Task Force was to gather information and knowledgeable input on certain critical issues on DB and P3 projects in North America regarding the impact of (a) procurement and contractual practices,Read More
Steve Willig, a partner in the firm, will be speaking at DBIA New England’s May Friday Forum via Zoom to be held on Friday, May 6, 2022.
His presentation, “Design-Build – What Are The Tells That Spell Trouble,” will explore what the “telltale” signs of trouble are on a design-build project and focus on the design perspective to inform all team members to recognize trouble spots and how to avoid them.
Registration is not required,Read More
May 2022 Roundtable – Climate Change and Design: Integrating Mitigation and Adaptation into your Practice
Infrastructure design is evolving in response to new net-zero laws and policies focused on resilience. On Thursday, May 19, 2022, Patricia B. Gary, Esq. will moderate a panel of two leading experts in the areas of mitigation and adaptation:
- Molly Dee-Ramasamy, Head of Deep Carbon Reduction at Jaros, Baum & Bolles in New York City, will speak about her work with low-carbon design strategies and electrification technologies to achieve decarbonization, and compliance with New York City’s trailblazing climate legislation,
The last two years have brought many changes to how we live and work – as well as how one should handle a Professional Liability case should it arise. Join us Thursday, April 7, 2022, as we explore and discuss the following questions:
- How can you recognize claims early and how can pre-litigation activities reduce claim exposure?
- What happens when a lawsuit is initiated and what are the mechanics of a lawsuit from start to finish?
Article: Supreme Judicial Court Articulates A New Test For Determining The Enforceability Of Contractual Provisions That Limit Liability For Violations Of G.L. c. 93A, §11.
On January 24, 2022, the Supreme Judicial Court issued an important decision, H1 Lincoln, Inc. v. South Washington Street, LLC, & others, which establishes a new test for determining the enforceability of contractual limitation of liability provisions for violations of G.L. c. 93A, §11. Massachusetts General Laws c. 93A is the Massachusetts Consumer Protection Act which not only protects consumers,Read More
Inside This Issue:
“Should Geotechnical Baseline Reports be the Universal and Exclusive Contractual Basis for Subsurface Conditions Risk Allocation?”
By: David J. Hatem, PC
Massachusetts Appeals Court Holds MEP Contractor’s Use of “Individual Expertise” to Support Hot Water Tank Installation is Protected by the Statute of Repose
Retail Tenants Continue To Seek Relief From Leases Due To Covid Induced Business Interruptions, While Results Remain Favorable For Landlords
By: Stephen F. Willig
To read a PDF version of the Winter 2021/2022 issue,Read More