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April 05, 2024 Feature

Editor’s Column

Lauren Catoe

In furtherance of our goal to provide timely, scholarly content to Forum members in an efficient manner, this issue marks the beginning of The Construction Lawyer’s paperless era. Given that the calendar recently changed to 2024, I don’t think I can claim that The Construction Lawyer is an early adopter of the trend toward a paperless world, but hopefully this transition will prove true the saying “better late than never.” After reading through the articles in this issue, I think you will find that only the format of the publication has changed, as the articles within it continue to be of the same quality you have come to expect from this publication.

In “I Know What I Know–-Really Reminds Me of Money,” Robert J. MacPherson and Christian C. Trevino address the contractual allocation of risk associated with differing site conditions. The authors explain how the incorporation of a differing site conditions clause in a construction contract “relieves the contractor of assuming the risk of encountering unanticipated or unusual site conditions and provides a remedy–-typically a change order or claim–-if such conditions are encountered while eliminating over-inflated contingencies and bids.” Stated another way, a well-drafted differing site conditions clause results in an allocation of risk to the party in the best position to manage the risk (typically, the owner). MacPherson and Trevino provide a helpful overview and analysis of differing site conditions clauses found in federal, state, and local regulations, as well as those included in common contract forms in the construction industry. Through the lens of a differing site conditions claim, this article touches on a number of important principles in the world of construction law (e.g., contractual interpretation, notice and claim requirements, damages, etc.). As the authors note, “[Differing site conditions] claims are construction law in a nutshell and an examination of differing site conditions can lead to a better understanding of construction law.”

Eric A. Berg, Kevin R. Garrison, and Wendy F. Klein Keane present the second article of this issue: “Mastering MSAs.” As they describe, master service agreements (“MSAs”) “provide consistency and rapid project delivery across a variety of different (or similar) construction projects.” An MSA is an umbrella agreement form that includes the terms and conditions that will apply to any “work order” that is subsequently negotiated and executed pursuant to the overarching MSA. The work order form addresses the project-specific or deal-specific terms, such as scope, schedule, and compensation. Use of an MSA makes most sense for parties who have, or plan to have, a longstanding relationship as it allows them to get to contract faster for a particular project or scope (because, presumably, the terms and conditions within the MSA will require little to no adjustment in the applicable work order). This article provides a nice outline of the key provisions typically addressed in an MSA, and it concludes with some cases that serve as examples of things to avoid when drafting and negotiating an MSA.

The final article in this issue, “Construction Lawyer’s Duty of Technological Competence--Ethical Implications of the Use of Technology and Artificial Intelligence,” was authored by Catherine W. Delorey, James A. Doppke, Jr., Sanjay Kurian, and Benjamin T. Johnson. Given the advancement of technology and its pervasiveness in the practice of law, a lawyer’s well-established duty of competence has expanded to include a duty of technical competence. In this article, the authors shed light on what it means to be technologically competent. They do this by explaining how the concept of technological competence has developed over time and what it has been interpreted to include. Spoiler alert: much like technology itself, the meaning of technological competence has, and will continue to evolve. As the authors state in the article’s conclusion, “The duty of technological competence does not require attorneys to become experts in the field of technology, but attorneys must do more than stick their heads in the sand and ignore the changing world and practice around them.”

I hope you enjoy this first, paperless issue of The Construction Lawyer. Our authors put in a tremendous amount of work to write articles for this publication, and the knowledge they share on pertinent topics positions us to better serve our clients in the future.

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Lauren Catoe

AECOM

Lauren E. Catoe is assistant general counsel for AECOM Hunt and is based in Tampa, Florida.