The Design and Construction Management Professional Reporter: February 2004

Developing Risk Indicators for Evaluating Professional Liability Exposure on Major Public Projects: A Broader Dimensional Approach

By David J. Hatem, PC

Major public projects typically pose significant and complex technical and project management challenges for design and construction management professionals that require substantial skill and experience in order to successfully achieve project objectives and programs. These projects also pose relatively high degrees of professional liability risk exposure and prudently necessitate appropriate contractual risk allocation provisions, and effective risk management practices to anticipate and limit such exposure.

A Differing Site Condition Claim is not Necessarily Synonymous with a Defective Design Claim

By David H. Corkum, Esq.

In April 2003, the United States Court of Federal Claims issued a ruling on a motion for summary judgment that is helpful in clarifying the distinction the law makes between a differing site condition claim and a closely related defective design claim. These two claims, while often treated as simply alternative theories of recovery for the same set of operative facts, are easily distinguishable by a reviewing court. Contractors and Owners would be well advised to be mindful of these distinguishing features so that an otherwise viable claim or defense is not inadvertently forfeited.

Attorney Client Privilege & Work Product Immunity in the Context of Public Relations

It is not uncommon for lawyers to hire public relations (“PR”) consultants when dealing with a high profile case. Lawyers often need advice on how to effectively deal with the media in high profile matters. For example, lawyers may need to know if they should provide the press with information regarding the case and the implications that come with providing or not providing such information. Lawyers may also engage PR consultants “to advise on matters such as whether the state of public opinion in a community makes a change of venue desirable, whether jurors from particular backgrounds are likely to be disposed favorably to the client, and how a client should behave while testifying in order to impress the jurors favorably and other matters…” In Re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. June 2, 2003).

The Doctrine of Sovereign Immunity Will Not Insulate a Municipality from Its Breaches of Implied Covenants

By David H. Corkum, Esq.

In a prior issue of this Reporter, the case of Kiska-Kajima v. the Washington Metropolitan Area Transit Authority was discussed wherein the Transit Authority successfully invoked the doctrine of sovereign immunity to defend its intentional withholding of information from bidders. An important limitation on the breadth of the sovereign immunity doctrine is illustrated in the case of Champagne-Webber, Inc. and Miles Anderson Contracting, Inc. v. the City of Ft. Lauderdale, a Municipal Corporation, 519 So.2nd 696 (1988). In this case, the contractor appealed a lower court’s grant of summary judgment that had resulted in the dismissal of the contractor’s action based on a overly broad application of the doctrine of sovereign immunity.

The Use of Imprecise Terminology on Boring Logs Will Not Increase A Contractor’s Burden of Investigation Prior to Bidding

By David H. Corkum, Esq.

The Armed Services Board of Contract Appeals recently decided a case that calls attention to the importance of using precise terminology when describing conditions at a site. The Appeal of Kilgallon Construction Company, Inc., ASBCA No. 52582 and No. 52583 resolved a dispute over an alleged differing site condition and provided some insight into a contractor’s obligation with respect to prebid site investigations.

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