Midterm Flashcards
What are the three major categories of law that are applicable to construction?
Contract
Tort - civil wrong other than breach of contract where court will provide remedy for damages
-Intentional Torts (assault, fraud, conversion)
-Negligence (lack of due diligence or care)
-Strict Liability (liable without regard to fault)
Statutory/Regulatory
What are three implied contract obligations (obligations other than those spelled out by the agreement or contract)?
- Duty of good faith
- Duty to cooperate
- Warranty of plans & specifications (Spearin Doctrine) and results of performance
What are the three basic categories of torts?
Intentional torts
Negligent torts
Strict liability
Which party in the design-bid-build contracting method is displaced when using multi-prime contracting?
General contractor
When using design-build contracting, which party assumes the design and construction responsibilities, along with the resulting liabilities?
Design-builder
What is the contractual relationship between a public agency and a private entity that may be used to deliver a facility for the use of the general public?
Private Public Partnership (PPP)
What is the difference between a responsible bidder and responsive bidder?
A “responsible” bidder is a contractor who is capable of satisfactorily undertaking and completing the work. A “responsive” bidder is a contractor who submits a bid that accurately reflects the tasks spelled out in the bid solicitation and would be bound to perform should the bid be accepted.
Agencies can have a large amount of discretion in selecting “best value” procurement. If bid selection is protested and goes to court, what two questions do the courts seek to answer
- Did the agency comply with the FAR requirements for negotiated best-value procurements?
- Did the agency follow the selection and evaluation procedures set forth in the RFP?
What four criteria are used to justify the court’s intervention from bid mistakes
• The mistake is of such consequence that enforcement would be unconscionable
• The mistake must relate to the substance of the consideration—a “material” feature
• The mistake must have occurred regardless of the exercise of ordinary care
• It must be possible to place the other party in status quo
- Fifth criteria often used - timely notice
What is the owner’s duty if a bid mistake is suspected?
Notify the contractor and attempt to verify the accuracy of the bid before allowing reliance on the bid.
What are the four elements of promissory estoppel?
- A clear and definite offer by the subcontractor to perform the work at a certain price
- A reasonable expectation by the subcontractor that the prime contractor will rely on the subcontractor’s price in preparing the prime contractor’s bid
- Reasonable reliance by the prime contractor on the subcontractor’s bid
- Detriment to the general contractor as a result of reliance on the subcontractor’s bid and the subcontractor’s subsequent refusal to perform
What five conditions must be met in order for a contract to be enforceable?
- Real agreement between parties – “meeting of the minds”
- Subject matter of contract must be lawful
- Valid consideration for each promise
- Parties must have legal capacity to contract
- Compliance with legal requirements regarding the form of the contract (i.e. written contract)
Contract language is typically interpreted as it would be understood by a reasonably intelligent and logical person familiar with the facts and circumstances of the contract. What two sources of information do the courts use in making this determination?
- Language used by the parties in the contract
* Facts and circumstances surrounding contract formation
What are the three sources of definitions used in defining contract terms?
- Parties have defined the terms within the contract
- Technical terms are given their meaning within various industries and trades
- General terms are given their widely accepted meanings
When preprinted contract forms also include handwritten and typewritten terms, what is the generally accepted order of precedence regarding interpretation of these terms?
- First, handwritten terms
- Second, typewritten terms
- Third, preprinted form
When ambiguities exist in contract interpretation, what are the two risk allocation principles available to the courts to resolve the conflict?
- Construing the contract against the drafter
* Construing against the party that failed to request clarification
What are three examples of how an owner may breach their implied contractual duty to cooperate?
- Failure to coordinate work of separate contractors within their control
- Late or incomplete review of submittals
- Untimely or incomplete inspections
Rules for contract interpretation
Rule 1: The reasonable, logical meaning of the word will be presumed to be the meaning intended by the parties
Rule 2: Technical terms override generally accepted terms (if that was the intent)
Rule 3: General terms use their widely accepted meaning (unless defined differently in the contract)
Rule 4: Contract considered as a whole
Rule 5: Handwritten, typed, preprinted forms
Rule 6: Order of precedence clauses
Rule 7: Industry custom and usage
Elements of enforceable contracts (Hinze, p.31)
- Parties must have legal capacity to contract
- Must have offer & acceptance
- Consideration for each promise
- Legal Purpose
- Terms must be reasonably clear
- Contract form permitted by law
Contract Delivery Methods
- Design-Bid-Build (Traditional Method)
- Design-Build
- Construction Management
- Multi-Prime Contracting
Advantages/disadvantages of Design-Bid-Build
- Advantages
- Contractor & Design Professional selected separately
- Complete design documents available before construction
- Contractor & Design Professional operate independently
- Well defined requirements
- Disadvantages
- Contractor & Design Professional operate independently
- Construction costs not estimated until design phase completed
- Construction does not start until documents are available
- Time is biggest loser
Advantages/disadvantages of Design-Build
- Advantages
- Owner has one contract and deals with one party
- Fast-track construction due to better communication
- Cost savings usually achieved
- Owner has design alternatives
- Timeline is compressed
- Disadvantages
- Design Professional comes packaged Contractor
- Product quality may be difficult to control
- Difficult to compare proposals because designs vary
- Requirements are loosely defined
Advantages/disadvantages of Construction Management
- Advantages
- Construction Manager’s expertise benefits design
- Construction Manager’s has unbiased opinion
- Construction Manager has no incentive to cut corners
- Disadvantages
- Construction Manager may not be cost conscious
- Owner has no total cost protection before construction
- Incentive for CM to slow progress to avoid risk
Advantages/disadvantages of Multi-Prime Contracting
- Advantages
- Cost savings (no GC mark-up on subcontracts)
- Can be used with fast-tracking
- Owner is less exposed to inflation and delayed occupancy
- Disadvantages
- Major coordination hassles
- Owner must manage all subcontractors
- Uncertainty regarding responsibility
- Owner assumes higher risk
Ethical Decision-Making Theories
Egoism
-How does the decision benefit me?
Virtue Theory
-How does the decision benefit me and those closest to me?
Utilitarianism
-Does the decision maximize benefits for most people?
Moral Rights
-Does the decision harm anyone’s rights?
Ethical Decision-Making Guidelines
PLUS
P - Policies - Does the action serve the best interest of the client and the public?
L- Legal - Does the action comply with the spirit and the letter of laws and regulations?
U - Universal - Does the action conform to universal principles and values of the profession?
S - Self - Does the action satisfy your own personal definition of right, good, and just?
Common Ethical Issues
- Bribe
- Kickback
- Conflict of Interest
- Outside employment
- Confidential information
- Family members
- Harassment
ASCE Fundamental Principles
- Enhance human welfare and environment
- Serve the public, employees, and clients honestly and impartially
- Increase competency and prestige of profession
- Support professional and technical societies
ASCE Fundamental Canons
- Hold paramount safety, health, and welfare of public
- Perform services only in area of competence
- Issue public statements in objective & truthful manner
- Serve clients faithfully; avoid conflicts of interest
- Compete fairly with others
- Enhance profession; avoid bribery, fraud, & corruption
- Continue professional development
Ethics vs. Morality
Ethics - external source such as professional practice, violation can lead to disciplinary action
Morals - internal source from societal norms, violation leads to guilt, remorse, cognitive dissonance
Elements of Moral Autonomy
- Moral awareness
- Clear moral reasoning - ability to understand issue, clarify and assess both sides
- Moral coherence - consistent and comprehensive viewpoints based on relevant facts
- Moral imagination
- Moral communication - ability to be precise in language, skillfully present and defend moral views to others
