Author Archives: Michael C. Loulakis, Esq., FDBIA, President, Capital Project Strategies, LLC

About Michael C. Loulakis, Esq., FDBIA, President, Capital Project Strategies, LLC

Mike Loulakis is an at-large director of the WDBC and provides project delivery, procurement, and contracting services to public owners on their capital projects. He is widely published on collaborative delivery topics and has been the author of Civil Engineering magazine’s “The Law” column since 1981. Mike can be reached at mloulakis@cp-strategies.com.

Do You Really Want to Contract with the Greater Fool?

One of my typical roles as an owner advisor is to review proposed construction management at-risk (CMAR) and design-build contracts from a commercial perspective—i.e., what’s the likely marketplace reaction to the contract and is the contract consistent with the philosophy behind collaborative delivery? I am continually amazed by what I see. For example, on two of my current public design-build projects, the RFP versions of the contracts: Made design-builders responsible for consequential damages Gave very limited rights for time and cost relief for events beyond the design-builder’s reasonable control Contained substantial, uncapped, schedule liquidated damages Made the design-builder responsible for not only managing the performance of the owner’s other prime contractors, but for their delays in performance Obligated the design-builder to a far-reaching and uninsurable indemnity Provided that all disputes would be fully and finally resolved by the owner’s chief engineer, with limited appeal rights When I pointed out my concerns to the project’s legal team, the reaction was one that I have heard for years: “Yeah, whatever. Let’s see how the marketplace responds. They can price the risk in their proposal.”

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Topics: CMAR, Collaborative Delivery, Contracts, Design-Build, Uncategorized.

Dispute Boards on Water/Wastewater Projects? Why Not?

I have always been perplexed as to why dispute boards are so rarely used on water/wastewater projects. They enjoy a long history of successful use on transportation projects – particularly tunneling projects and big-dollar design-build projects. Most transportation owners find dispute boards helpful, and it is clear that they provide the parties with a vehicle to get real-time resolution of project challenges. But it seems that water/wastewater owners and owner advisors don’t even give a thought (let alone a second thought) to considering the use of a dispute board when they put together their contracting approach for a non-tunneling project. And why haven’t design-build teams pushed owners to use them on complicated, big-dollar design-build water/wastewater projects, as their counterparts in the transportation industry have done?

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Topics: Dispute Board, Water Design-Build Project.

Happy Birthday, Spearin!

Looking for something different to do this holiday season? Reach out to 100 of your favorite friends and family members, play a single-round game of Family Feud, and ask them to name a U.S. Supreme Court decision. Even if they have had more than their share of spiked eggnog, they will likely have the presence of mind to think about the Kavanaugh hearings and big constitutional and social issues. I suspect that the overwhelming number one answer will be Roe v. Wade. Maybe Bush v. Gore will show up on the list. But will anyone mention U.S. v. Spearin? Be honest. Did that decision ever cross your mind? Did you even know that the Spearin Doctrine – our country’s most important construction law doctrine – was decided by the U.S. Supreme Court?

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Topics: Construction Law, Education.

Are You Really Ready to Create and Maintain a Collaborative Working Environment?

Collaborative project delivery creates a terrific opportunity for all members of the project team to work together in a cooperative, trusting, and transparent environment. Unfortunately, this opportunity can be quickly squandered if project leadership loses sight of what it takes to create and maintain this collaborative environment. It is inevitable that something will go wrong at some point on the project. When that happens, the strength of the bonds among the team will be tested. Will project leadership ultimately resort to protecting their individual interests – e.g., “It’s not my fault and not my problem”? Or will project leadership find a way to rise above it, solve the issue cooperatively, and move forward?

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Topics: Collaborative Delivery.