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    Construction (Construction Management)

 

  • Licensed architect (New York), licensed Real Estate Broker (New York), former real estate developer, former general contractor, former licensed Real Estate Salesman (New York).

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  • Large-scale construction projects generally require the services of a construction management entity, due to the sheer size and complexity of such projects.

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  • The hierarchy of construction personnel for large-scale construction projects is generally, the: owner of the property to be developed; developer (who may also be the owner), who reports to the owner; construction manager, who reports to the developer if there is one, or if not, directly to the owner; general contractor, who reports to the construction manager; and, subcontractors of the general contractor, who all report to the general contractor.

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  • The construction manager (CM) generally assumes legal liability for the on-budget and on-time completion of the project.

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  • Construction management requires specialized knowledge about many discrete areas of the construction process (some pundits have estimated upwards of 120 such areas), such as: accounting; alternate dispute resolution (ADR); arbitration; bidding; budgeting; building information management (BIM); business law; change management; codes; claims; communications; computer-aided drafting (CAD); construction documents; construction drawings; construction equipment; construction law; construction safety; contractor manager; contracts administration; cooling systems; diplomacy; drafting; electrical systems; energy technologies; estimating; financial management; first aid; heating systems; information technology (IT) hardware and software; jobsite management; labor relations; litigation; logistics; management principles; materials; mechanical systems; mediation; methods of construction; negotiation; photography; plan reading; procurement; productivity analysis; program orientation; project development; project planning; public speaking; resource allocation; risk management; scheduling; security; sourcing; strategic planning; structural analysis; structural design; supply chain; surveying; ventilation systems; weather.

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  • Legal support for the construction manager (CM) during all phases of a construction project, such as: initiation; design; planning (including the: communication plan; risk management plan; scope documentation; work breakdown structure – WBS); pre-construction (including: biddability review; cost estimate review; constructability review; contractor pre-qualifications;  construction delivery strategies; design consultant oversight; maintainability review; master scheduling; permit acquisitions; value engineering); procurement; construction execution (including: change order management; claims avoidance; construction inspection; construction quality management – CQM; critical path method – CPM – analysis; daily progress logs and diaries; dispute resolution; documenting existing conditions; field reports; labor compliance monitoring; linear scheduling method – LSM; narratives; project management review technique – PERT – analysis; quality assurance – QA; quality control –QC; schedule management; videos); post-construction monitoring (including: as-built drawings review; coordinating manufacturers’ training sessions; operations and maintenance turnover; punch lists); commissioning (including: manufacturers’ warranties); occupancy; and, closeout.

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  • The widespread use of the integrated project delivery (IPD) model – in which all major participants, such as the owner, architect, engineer, construction manager, general contractor (if known in advance) and other subject matter experts (SMEs), are invited to contribute their respective expertise to the planning of the project – has resulted in some basic variants of the traditional construction manager (CM) role, which was akin to the role of the general contractor (GC) with the difference that the CM had management liability for the entire construction project, whereas the GC was only liable to follow the dictates of the construction drawings provided by the owner, such as the: construction-manager-as-constructor (CMc) (a/k/a construction-manager-at-risk or CMAR); construction-manager-as-agent (CMa) (a/k/a construction-manager-as-advisor or CMAA); and, hybrid construction manager (HCM).

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  • Legal support for the CMc construction management delivery method pursuant to the American Institute of Architects (AIA) Document A133, in which the owner engages the CMc during the planning stage of the project – perhaps in return for the CMc providing a guaranteed maximum price (GMP) to the owner – allowing the CMc to provide constructability, cost and scheduling advice to the project team members, while assuming the risk for the budgeting and scheduling; in this delivery method, the CMc enters into all the contracts with the general contractor or the individual subcontractors.

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  • In the CMc construction management delivery method (in which the CMc is entering into the contracts with either the general contractor, or with individual subcontractors), in order to allow the owner to seek direct recourse against the general contractor or against the individual subcontractors, either in addition to or in lieu of the construction manager, it is important that the CMc’s contracts with either the general contractor or with individual subcontractors designate the owner as the intended third-party beneficiary under the warranties and guaranties section and such other sections intended to ultimately benefit owner, such as an additional insured and indemnitee, and as a co-obligee under payment and performance bonds, but including language making it clear that and such designation for the benefit of the owner should not be deemed to create any contractual privity between the owner and the party contracting with the CMc, or otherwise give rise to any obligations or liability on the part of the owner in favor of the party contracting with the CMc.

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  • The basic difference between a CMc and a general contractor (GC), is that the CMc is integral to the construction project almost from the project’s inception, through a direct contract with the owner above, so the CMc may provide valuable advice regarding materials and methods of construction as the project is designed, and once the design and planning is completed, it is the CMc who administers the bidding and then enters into whatever contracts may be necessary below (whether with only a GC directly, or with many subcontractors directly) to complete the work of the project, whereas the GC only joins the project as the result of a winning bid, then enters into a contract with the owner directly above, and with many subcontractors directly below, to complete the work of the project.

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  • Legal support for the CMa construction management delivery method pursuant to AIA Document A132, in which the owner pays the CMa a fee through a direct contract with the CMa, the owner is the one who enters into the contracts directly with either a GC or with individual subcontractors, and the CMa acts purely an agent and advisor to the owner, and does not enter into any contracts directly with either a GC or with individual subcontractors.

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  • Legal support for the HCM construction management delivery method, which combines elements of both the CMc and CMa construction management delivery methods (for example, the hybrid construction manager may be considered to be an independent contractor for some purposes in the hybrid construction management contract with the owner, an agent of the owner for other purposes, and a construction-manager-at-risk for other purposes), all as may be negotiated between the owner and the CM prior to the commencement of planning for the construction project.

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  • Legal support for construction manager certification in jurisdictions where such certification is required.

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