Client Training Programs

The Need for Training

We have found that a majority of construction disputes originate from:

• Lack of understanding of the terms and conditions.
• Failure to follow procedures required under the contract.
• Failure to keep appropriate documentation during the project.
• Vague contract terms and conditions, subject to different interpretations.

The contract itself should act as a road map that directs how each party should conduct itself during construction - from how to prepare submittals, to the payment application, process, to project close-out, to claims and dispute resolution.

If a party does not fully understand the contract - or worse yet, - didn't bother to really read it, and does not understand its contractual rights and legal obligations, this can lead to disastrous results. This includes waiving important payment rights and taking on more than your fair share of the risk when things go wrong.

We have also found that when disputes arise, the party with the distinct advantage in resolving the dispute in their favor has:

(1) Adhered to contract procedures, and
(2) Maintained the most complete documentation.

Taking all this into consideration, Scholefield has created unique training programs focused specifically on the challenges faced by those in the construction industry.

The Training Advantage - Training at your facility, provides numerous advantages over attending public training seminars, such as the ability to:

• Create a customized program built around your company's needs;
• Schedule training to meet your company's schedule and to minimize disruption to your business operation.
• Discuss specific issues freely during class without concern of inappropriate or confidential information being revealed to others;
•Send as many employees to each program session as you wish because our quoted cost is per session or program with no "per head" charges.

For the ease of planning your customized program, the training topics are divided into general groups based on the sequence issues that are usually faced in a construction project. Some of the topics are interrelated amy overlap. Rather than considering each topic individually, they can be taken as a base for your customized training session or program, and we can include topics that are not specifically listed.

The training topics also have a recommended intended audience. While some training will be aimed at executive management, other training will be focused on field personnel such as owner's reps, project managers and superintendents, and still other training may be more appropriate for administrative staff such as project coordinators and accounts receivable personnel. We can customize for any audience and we can make it a detailed session or more of an overview of multiple topics. Rememeber, it's your training - mix and match as you see fit!

Pre-Construction Phase
• Anatomy of a Contract- Understanding Contract Terms
• The Use of Standard Form Contracts (AIA, AGC, etc.)
• Creating or Customizing Your Contracts
• Terms You Can Live With - Negotiating Contracts

Construction Phase
• Understanding contract Terms for Field Personnel
• Administering the Contract
• Paperwork and Documentation -The Devil is in the Details

Payment Issues and Disputes
• Resolving Disputes
• Getting Paid
• Delay Claims

Negotiation Skills
• Getting the Contract Terms You Want
• Avoiding Change Order Disputes
• Negotiating Skills in General

Expert Witness Training
• Maintaining Credibility While Testifying
• Depositions and Trial Testimony
• Courtroom Demeanor - Video Evaluations

Program Descriptions

Pre-Construction Phase

Anatomy of a Contract - Understanding Contract Terms
This program is focused on identifying and then understanding the effect of contract clauses as well as terms you want and don’t want such as:
• Importance of clarifying scope of work;
• Including your bid/quote in the contract;
• Provisions that shift the burden of risk;
• Indemnity, insurance, and subrogation (yes- you can really understand it);
• Laws governing contracts and construction;
• Dealing with illegal terms and conditions;
• Incorporation clauses – which contract rules?
• Exculpatory and limiting clauses;
• Payment terms, retention, right to use joint checks;
• Fund Control;
• Liquidated damages – not always the contractor’s enemy;
• Change orders, notice, and waiver provisions;
• Contract Cost – GMP, Lump Sum;
• Schedule of Values;
• CPM scheduling;
• Substantial completion;
• Bonding requirements;
• Dispute resolution procedures – what are you agreeing to?
• And more ….
(For management and key decision makers)

The Use of Standard Form Contracts (AIA, AGC, etc.) - Is One Right For You?
Understanding the terms and conditions that are contained in standard form contracts is essential if you plan on using them, or if you have been presented with one. Often, Architects, Builders, Contractors and Subcontractors gravitate towards the use of standard form contracts instead of customizing a contract to fit their particular needs. The fallacy in this thinking is, not only may the procedures in the form contract not match how you want to run your project, but you also may not realize rights you could be waiving under form contracts. For example, even though AIA contracts are widely used and perhaps strive to be a “fair” contract both the owner and the contractor will be waiving rights to seek certain damages due to delays caused by the other party. It is just as important to understand the terms of a standard form contract as it is for a custom contract. This program also investigates how to coordinate the family of standard form contracts and customize them for your use.
(For management and key decision makers)

Creating or Customizing Your Contracts
This program explores why creating a master contract may benefit you. You have control of the contract by eliminating oppressive terms and conditions and, instead, replacing them with terms and conditions that are favorable to you. We will examine terms and conditions that you should always have in your contracts and how to create contracts written in plain language that will act as the appropriate roadmap for your project managers, superintendents and administrative staff. Also addressed is the use of indemnity, insurance, and subrogation clauses and risk shifting.
(For management and key decision makers)

Terms You Can Live With: Negotiating Contracts
This program is naturally custom tailored to the business type issuing or negotiating the contract. It includes strategies on how to negotiate the best terms with all the players, whether a design professional, owner or builder, general, sub-contractor, or material supplier. We will also discuss how to handle oppressive contract terms, and how to conduct yourself during a project if you decide to accept such terms. We will cover specific items that you should keep in your contracts and those terms that must be passed to, and thus negotiated with, subcontractors. Also explored are the differences between public and private works and the ability to (or not to) negotiate after bid opening.
(For management and key decision makers)

Construction Phase

Understanding Contract Terms for Field Personnel
Covers the essential parts of a contract that are of significance to project personnel and emphasizes the importance of following key terms, such as notice and change order procedures. Specifically focuses on the areas of contracts that field personnel will play a key role in.
(For management, project managers, and superintendents)

Administering the Contract
Highlights the procedures and terms that are typically included in a contract and discusses:
• Organizing your team;
• How to distill the information in the contract into a field-useable document so that your whole team is in compliance;
• Notice after encountering unknown conditions or changed conditions;
• Other notice provisions and when to use them;
• Payment requirements and issues;
• How to communicate properly to assure that you are heard by the right people;
• Protocol and the importance of following it;
• How to deal with people who are ignoring the proper chain of command;
• Enforcing your rights under the contract and law;
• Addressing illegal contract terms during construction;
• What steps to follow when the other side isn’t cooperating with the contract terms;
• How to make sure rights aren’t waived;
• Handling changes – written and otherwise;
• Schedule changes;
• Managing punch lists;
• Substantial Completion;
• Implementing default provisions;
• And more …..
(For management, project managers, and superintendents)

Paperwork and Documentation - The Devil Is in the Details
Nearly all projects require many levels of documentation which are often viewed as useless and over burdensome, and, thus, they are ignored. You will see that the devil is truly in the details as this program emphasizes the importance of properly organized and detailed paper work by exploring the following topics:
• Organizing project files;
• Use of Types I, II, III, and IV releases and how they protect you;
• Proper payment applications;
• Providing notices;
• Documenting RFI’s and RFI Logs;
• Organizing Submittals and Submittals Logs;
• Meeting minutes;
• Daily reports – content and purpose;
• Look Aheads;
• Documenting changes and requests for change orders;
• Performing changes before a written change order is issued – private and public work differences;
• Working under protest;
• Documenting verbal conversations;
• Emails – don’t write anything that you would not want a judge or jury to see;
• And more ….
(for management, project managers, superintendents, and administration staff)

Payment Issues and Disputes

Resolving disputes
Understand the procedures and deadlines for dispute resolution as dictated by contract and the law is key to preserving your right to claims damages. This program deals with conflicts involving: scope of work; plans and specs; percent of completion; delays; changes in project schedule, payments, causes of delay, change orders, and more. How to prepare and submit proper documentation for a claim to decisions makers such as architects and engineers is discussed, as well as the appeal procedure if you don’t agree with the decision. This program outlines how to put together a solid claim and what to expect when participating in various dispute resolution procedures such as meet and confers, mediations and arbitrations. Learn what documents are important and how good document management works in your favor. The course will also explore the appropriateness of demanding dispute resolution prior to the completion of the project.
(For management and project managers)

Getting Paid
Getting paid is why you’re in this business to begin with and nothing hampers your business and its momentum like not getting paid. Likewise, as an owner or general contractor, fear can set in if payments to a contractor or subcontractor get ahead of the amount of work performed. Whether the non-payment is related to the original contract work or costs for changes, this program will advise you on the best way to handle a payment dispute recognizing various business considerations. The program explains:
• Protecting your right to payment or right not to pay;
• 20-day preliminary notices
• Right to payment under the contract;
• Retention payments;
• Whether payment for changes has been waived;
• Payment for changes – rights under private and public contracts;
• Claims procedures;
• Right to stop work- or not;
• Who decides percentage completion for a disputed pay application;
• Challenging architect’s or engineer’s decisions;
• Breach of Contract
• Mechanic’s liens;
• Stop notices;
• Bond claims;
• Violations of Prompt Payment Statutes;
• Preparing a formal claim;
• Pass-through claims;
• And more ….
(For management, project managers, and administration staff)

Delay Claims
Delays are often inevitable in construction. Understanding the different types of delays, how they affect a project, and whether you can recoup your losses from them goes a long way in protecting your rights when a delay occurs. Learn what a critical path is and how is it created and used as well as what affects the critical path and the effects this has on a project. Understand how your activities within the project schedule may not be on the critical path, or may become part of the critical path due to actions beyond your control in also key. Learn the significance of using As-planned CPM schedules and as-built CPM schedules. This program also looks at costs associated with delays such as those costs associated with direct labor and materials and other increase is costs associated with: general conditions; OH and Profit; acceleration; affect on anticipated labor; and loss of efficiency. Learn the difficulties associated with various methods used to prove delays damages such as: Total Cost Analysis; Measured Mile Analysis; and the Eichleay Formula. In this program, above all, you’ll learn what is important for documenting a delay including what costs are allowed verses what just won’t fly when you try and recoup your delay damages.
(For management and project managers)

Negotiation Skills

Getting the Contract Terms You Want
How to go about asking for and getting the contract terms and conditions that you want. Once you understand the importance of the contract terms, you will want to add favorable terms and conditions and eliminate the unfavorable terms. Know what you are willing to give up and what are must-haves before walking into the negotiation session. Learn how to make negotiations a win-win situation. (For management and key decision makers)

Avoiding Change Order Disputes
Understand the psychology of a change order. Learn when you have the power to make demands and how to avoid losing this power position. Learn the fundamentals of avoiding adversarial encounters during negotiations. (For management, project managers, and superintendents)

Negotiating Skills in General
Go beyond the specifics of contract negotiations and change orders. Learn the skills that make a good negotiator. Skills that are useful for resolving disputes, entering into business deals, working with people. (For management, project managers, superintendents, and administration staff)

Expert Witness Coaching

Maintaining Credibility While Testifying
How to prepare for testifying and what supporting documentation you will need to maintain believability as an industry expert. How to answer questions to minimize attack and discredit while on the stand. How to handle questions while under attack.

Depositions and Trial Testimony
Understand the differences and what may or may not be disclosed. Learn how to present information in easy to understand style that will minimize attack from opposing experts.

Courtroom Demeanor with Video Evaluation
What kind of demeanor lends itself to improving credibility. How to avoid annoying mannerisms, nervous habits or demeanor that implies a lack of confidence. This is accompanied with a mock deposition, or questioning while on video. The performance video will be reviewed and evaluated during the training session.

We are...
Anything But Typical

Call us now to discuss how you can benefit by using a different approach to managing to your legal needs.
858-613-0888
info@construction-laws.com