School districts operate under bidding laws that, in many cases, restrict the flexibility they have in pre-qualifying contractors and limit choices in project-delivery methods. In most instances, contracts are awarded to the lowest bidder without limiting who is allowed to bid.
In many states, a construction contract may not be awarded to a general contractor, but must be awarded to four separate trade contractors — general construction, HVAC, plumbing and electrical — each working directly for the school district. In these instances, the school district typically hires a construction manager as a consultant to supervise and coordinate the work.
A critical role
Because the legal impediments imposed on school districts are not likely to change, it is essential that institutions focus on more effective planning and troubleshooting.
A fragmented decision-making process is a troublesome obstacle. Often, administrators do not realize the significance of their role in the construction process. This is understandable — most school districts undertake large construction projects only sporadically. The most effective school officials are those who have studied lessons from other districts and who know how to avoid problems.
Sin city
The 10 most deadly construction sins:
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Not focusing upfront. Because many school districts build infrequently, it is likely that the team working with the school district to create the project focus will be made up of consultants. The lack of in-house capabilities makes it difficult to merge design with cost-to-construct until all the outside consultants have been retained and have begun work.
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Not choosing the best project-delivery system. The presence of construction managers, architects and low-bid contractors — plus bid laws that preclude prequalification and require four prime contractors — can be deadly. Still, bidding laws must be followed, and school districts must confront difficult challenges.
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Not assembling the right project team. School districts often are challenged when it comes to assuring that the best team is on a project.
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Not coordinating. To prevent overruns and delays, schools must have an effective system for communicating and making decisions among team members.
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Not developing a system to address changes in scope, price or schedule. Without this system, uncertainty can disrupt the flow of the project, and claims are inevitable.
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Not understanding local conditions. Unions, work hours, and the availability of labor and material vary. The architect and construction manager must be familiar with and ready to address the variables.
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Not scheduling accurately. Elaborate schedules that the project team has trouble updating can cause recurring problems.
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Not holding periodic project meetings and not keeping meeting minutes. Accurate and up-to-date job meeting minutes are the life blood of a construction project. As contemporaneous reporting of project events, they are even more valuable than a letter. Often, they are admissible in court.
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Not having vision for dispute resolution. Disputes are inevitable; the process for resolving disputes is an essential component of project planning. Mediation and dispute review boards can help resolve disputes.
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Not recognizing that quality always wins. School districts cannot act like real-estate developers. For education institutions, quality — not profit — wins the day.
Osborn, Esq., is a partner in the New York law firm of John E. Osborn PC.
Project snapshot
Some troubled projects and their solutions:
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A middle school renovation involved removing the school's roof and adding a floor on top of the existing building. The construction manager did not coordinate the sequencing of work, and the architect did not obtain the specifications of scope from each of the independent trade contractors. Water poured into the building for months, and the project team had not developed a strategy to stop it. The problem was solved by reviewing the contract requirements and performance requirements of each member of the team, hiring an independent engineering expert, and directing the repairs.
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An elementary school project had been completed in spite of unanticipated rock conditions, which had led to cost overruns and delays. As the site work contractor finished the grading, heavy rainfall cascaded into the building and warped the gym floor. The architect had a contractor make the repairs immediately; after repairs were made, the costs were recovered in arbitration against the sitework contractor and architect.
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Renovating two school buildings and constructing a connecting building presented an unexpected series of problems. Extensive water leaks and failure to coordinate contractor work required significant mold remediation. Because interior sheet rock and other finish work were installed before the roof was completed, resultant water damage required significant interior demolition. The response from environmental advisers led to overpriced mold remediation. The subsequent solution was a more effective mold-remediation process that saved more than $500,000.
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The delivery of a new high school was complicated by extensive project delays and cost overruns that were caused by a failure to produce a design that addressed state requirements governing stormwater and erosion control. An independent engineering expert was hired to oversee the redesign and to address regulatory issues while instituting an errors-and-omissions claim against the architect.
