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LEGALLY SPEAKING:
What Are Your Three Words for 2012?
By Matthew J. DeVries
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Every year, social media strategist and entrepreneur Chris Brogan chooses three
words that he uses as guidance for setting goals in the new year. For example,
in 2011 Brogan focused all efforts on Reinvest, Package, and Flow, each of which
he used as a lens to view his activities and his world. As we look to the
construction industry in 2012, I would use the following three words to describe
some legal trends we will see this year: Green. Collaboration. Protests.
Green. Given the topic of the past four Legally Speaking articles in 2011, it’s
no secret that green construction is going to remain at the forefront of
discussions in 2012. There is a continued growth of major companies investing in
sustainable building, and standards are becoming more mainstream. Legally
speaking, this means two things. First, it will be important for you to know and
understand your particular jurisdiction’s codes and standards. As cities and
states are adopting various versions of green codes and standards—whether the
United States Green Building Council’s LEED 2012 rating system that is scheduled
to be released in 2012 or the International Green Construction Code released
last Fall—you need to make sure your project is in compliance.
Second, the upcoming year is going to see numerous model contracts for green
projects, including the American Institute of Architect’s (AIA) green contract
forms designed to help limit legal exposure by addressing the unique roles,
risks and opportunities encountered on sustainable design and construction
projects. Whether you are using an in-house contract document, the Green
Building Addendum produced by ConsensusDOCS, or one of the new AIA green forms
to be released in 2012, you should make sure that your contract properly
addresses green risks on a sustainable project.
Collaboration. The word collaboration has different meanings to different
people. To my seven young children, it means cleaning up the playroom as quickly
as possible before dinner to ensure a bowl of ice cream at meal’s end. For
construction industry players, it means something similar—getting the finance,
design, estimating, construction and operation teams to work together to ensure
a high-quality, safe, timely and on-budget project. Legally speaking,
collaboration in 2012 will involve:
New forms of networking business development through tools such as Twitter,
LinkedIn and Facebook, which will require companies to review their employment
policies on computer and internet usages, as well as develop social media
policies;
New means of contracting, such as multi-party agreements that bring together all
major design professionals and trade contractors/suppliers for full
collaboration;
New and increased uses of project management tools such as Building Information
Modeling (BIM) and project delivery methods such as Integrated Project Delivery
(IPD) and Lean Project Delivery (LPD). BIM can benefit owners by offering better
design quality, better performing systems, schedule compression and cost-savings
from early detected design changes and conflicts. Similarly, IPD and LPD are
focused on the project as a whole and reward the collaborative efforts of the
whole team, who may often share in those cost-savings; and
New industry partnerships, such as the marketing partnership agreement announced
in November 2011 between industry giants AIA and Associated Builders and
Contractors (ABC). The partnership is designed to foster a greater understanding
and exchange of ideas between architects and contractors in the construction
industry. As part of the partnership, AIA will provide a number of benefits to
ABC members, including a discount on the purchase of any retail-priced AIA
Contract Document software license and access to AIA Contract Documents
education programs.
Protests. Competition in the construction arena has resulted traditionally in an
environment where you do whatever you can to make the deal happen, to keep the
project going forward, and to minimize the risk of loss. The number of bid
protests and challenges on public projects will continue to increase in 2012.
With public projects being a large portion of the work being performed, you are
going to see numerous bidders chasing a limited amount of projects, which
increases the likelihood of fierce competition and protests.
What are your three words? As we start a new year, I encourage you to find three
words that will guide your professional and personal endeavors. As a
construction lawyer, I look forward to a green and collaborative year (… and I
know there will be a few protests along the way …). Happy New Year!
 Matt
is a member of the Construction Service Group of Stites & Harbison, PLLC, and is
a LEED® Accredited Professional. Matt lives in Nashville and is the founder of
www.bestpracticesconstructionlaw.com. You can reach the author at
mdevries@stites.com.
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