Evolution of the Standard of Care Due to Climate Change

Posted by & filed under Published Articles.

By Andrew D. Mendelson and Dion N. Cominos | Sunday, January 3, 2021

Legal and practice standards for design and construction professionals are evolving due to climate change. While the cause of climate change is an oft-debated topic, the fact of it is largely undeniable. The earth’s global surface temperature and water levels are rising, while severe storms and climatic events have increased dramatically across the United States and not just in coastal areas.

Consequently, the standards of care and legal requirements applicable to design professionals, contractors and others involved in construction will need to be taken into consideration as part of the overall construction process.


Well-written, Clearly-Defined Contracts Make for Successful Outcomes

Posted by & filed under Published Articles.

by Walter J. Adams, Jr., Berkley Alliance Managers, a Berkley Company

Once again, the American economy is in flux. We’re all now in a wait-and-see game with a virus that is endangering the well-being of both individuals and businesses worldwide.

For some contractors, the projects scheduled before COVID-19 will move forward without delay. Others will be placed on hold or cancelled which will jeopardize the incomes and livelihoods of our nation’s contractors, subcontractors, engineers and architects.

As a result, the written contracts agreed upon between all parties have never been more important. Given the unpredictability shadowing the entire construction industry, plus state and federal regulations and mandates changing daily, every detail of every project should be clearly defined. Agreements that carefully state the risks, roles, responsibilities and rights of every participant, including subcontractors, are essential for ensuring successful, profitable outcomes during the best of times, let alone when circumstances are uncertain at best.


5 issues to consider on design/build projects

Posted by & filed under BDP Blog, Published Articles.

Berkley Design Pro Design Build

During National Building Safety Month, keep these tips in mind when planning your design/build projects.

By Lawrence Moonan and Laila Santana

Property Casualty 360
May 20, 2019

It’s inevitable. Every project is bound to have a glitch or two. Big or small, there are far too many moving parts on virtually any job site to cover every issue.

These challenges have become even more glaring in an environment that increasingly employs design/build as a project delivery vehicle. Historically, when design/bid/build was the pre-eminent project delivery method, the roles of the design team and the contracting teams were clearly defined. Everyone knew where their responsibilities began and ended and there was little overlap. Unfortunately, that’s no longer the case as the lines between design and construction continue to blur. In addition, expediency is now a key expectation of the project owner, which increases the potential for professional liability claims to occur.


Public-private partnerships and the design firm

Posted by & filed under BDP Blog, Published Articles.

By Andrew D. Mendelson, FAIA, Chief Risk Management Officer, Berkley Design Professional

April 11, 2019

Adapted from an article authored by Suzanne H. Harness, J.D., AIA for Berkley Design Professional

Recognizing that traditional public funding will not always be available, governmental agencies are using innovative public-private partnership (P3) models to incentivize their private-sector partners to deliver much needed local projects. For many engineers, P3 is already a familiar method of project delivery for infrastructure such as roads, bridges, tunnels, and transit. Architects are now finding that local communities are also considering P3 for other types of building projects, including athletic facilities, museums, convention centers, parking garages, courthouses, libraries, and affordable housing.

Simply stated, a P3 exists when a public entity retains a private entity to finance, design, and build a project that will deliver a benefit to the public. Often, the P3 consortium will be responsible for maintenance and operations over an extended period of time, up to 30 years. One thing is certain: private entities—and their investors and lenders—will only support P3 projects when they have confidence that the revenue stream will deliver an acceptable return on investment. The developer is then under tremendous pressure to deliver the promised financial return to investors.


Strategically preparing for construction professional liability risk

Posted by & filed under BDP Blog, Published Articles.

by Walter J. Adams, Jr.

All contractors and subcontractors should be involved in mitigating risk.

Risk is inherent with any commercial building project. From design and specification through construction, there are many moving parts capable of creating any number of problems.

In the past, roles were clearly defined under the design/bid/build project delivery methodology. Responsibilities had a beginning and end. There was little guesswork – if any at all.


8 Steps to Successful Subconsultant Relationships

Posted by & filed under Published Articles.

Streamline the design-build process with a solid strategy for choosing partners


by Andrew Mendelson FAIA
August 8, 2018

Prime design consultants often have a great deal of project control and leverage. Unfortunately, such responsibilities increase the potential for significant risk. This is especially true if errors or omissions committed by subconsultants cause damage to the client or project. Under such circumstances, the prime will most likely be held liable as if they committed the negligent acts themselves.

Given the risks and responsibilities, it’s surprising how many times prime consultants retain subconsultants without thoroughly vetting their skills and backgrounds. Many even fail to hold written contracts with their subs or only move forward with brief agreement letters and/or the subconsultant’s proposal. But consider this: if problems occur and the prime has no contract with the subconsultant, or if the contract is inadequate or ambiguous, the prime could end up paying for the client’s entire loss.

Another problem is that primes often neglect to require insurance—or an adequate amount—from their subs which places their own deductible and policy limits at risk.

As a result, here are eight steps Berkley Design Professional recommends for helping to prepare against issues before they arise, while also protecting against costly and time-consuming delays.


When Bricks Meet Bytes

Posted by & filed under Published Articles.

Navigating 21st Century Technology Pitfalls for Construction Professionals

By Dion Cominos and Laila Santana

The intersections and collisions between the worlds of professional services and technology are varied and numerous, affecting virtually every facet of modern business. Nowhere has this effect been more profound than in the field of construction, where electronic tools and innovations have revolutionized the processes of design and construction, resulting in a significant acceleration of both the conceptualization and development of buildings and structures worldwide.

However, this panacea of mechanization and automation comes with a price as a whole new range of liabilities and exposures emerge, presenting novel challenges and dilemmas for the architect and engineer (A&E) practitioner. Let’s explore both the opportunities and hazards that can result from the convergence of technology and construction, and also examine ways in which professionals can steer clear of the perils that can jeopardize the unwary.


BIM Me Up, Scotty: Navigating Risk in Digital Practice

Posted by & filed under Published Articles.

By James B. Atkins, FAIA & Andrew D. Mendelson, FAIA

Building Information Modeling (BIM) is rapidly becoming the central platform for design, construction and building operation. But like the transporter of science fiction star adventures, BIM can appear uncertain and mysterious at first glance. A single delivery contract and open access to the architect’s Building Information Model can quickly raise one’s risk alert level to red. Although there has not yet been a proliferation of claims, risk management can be preemptive. This paper addresses issues that can be beneficial in managing risks in digital practice.


Materials Transparency: The Movement Continues to Gain Traction

Posted by & filed under Published Articles.

by Andrew W. Mendelson

The term “materials transparency” has quickly grown in importance among building owners, developers, design firms and associations based on the industry’s growing ecological concerns.

Simply put, materials transparency requires manufacturers to disclose the content of building products with the goal of creating more sustainable and healthful indoor environments. To meet these objectives, contractors and construction executives will be seeking additional material information and content reports during the specification and construction submittal process.

However, new trends like this often translate into additional risks. Responsibility, unless clearly contracted, is often not readily apparent when products do not work as advertised or cause unexpected negative impacts.