While much has been (rightly) made of the marketing and business opportunities of social media and Web 2.0, as a construction attorney, I still cannot beat face to face interaction for fun and client development.  My view is that contractors (and legal clients in general) are more likely to trust and therefore hire those that they know personally.  Friendships can and do grow into attorney client relationships.

This is particularly true with the construction industry in Virginia (and presumably elsewhere).  Contractors and subcontractors are more likely to work with those they know, whether through an association like the AGC, or a breakfast meeting.  The recent convention refreshed many of these in person bonds and acted as another reminder of why I am so active in the organization.  In short, while a web presence is necessary, I would not give up the personal aspects of marketing.  Not only are a smile and a handshake a great combination for business development, they can, and do, lead to friendships that go beyond the potential business.

Thanks to all of you that said “hi” at The Homestead.  I appreciate the old friendships strengthened and the new ones made.  I also got to put faces to many folks that I’d talked to on the phone or interacted with online.  I really do enjoy meeting people in the Virginia construction industry and hope that we’ll catch up again soon.

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

It used to be that when you bought something (a car, a refrigerator, a television) it came with an owner’s manual that told you how to operate it, take care of it and prolong its usefulness to you. These days most of these manuals have been boiled down to a pdf on a website somewhere that you can access if and when you find the need. I understand that this is mostly in the name of saving cost (and trees) and at least the information is out there if you need it.

The relationship of the construction drawings to the written specifications is much more closely tied and yet most times there isn’t even that lonely little pdf orphaned out in cyberspace for you to hunt down and reference. Drawings, even on their best day, can only hope to tell part of the story. On their worst day they provide a hit or miss collection of thoughts that rely on the contractors good will and honesty to protect your client’s best interests.

Drawings are meant to generically represent the size, dimension, shape and relationship of the many components that make up a project. They also show details that depict the relationship of one product to another and how they join. The specifications actually tell you what those components are, who makes them, how you expect them to perform, how they are to be installed and in what finishes and textures. Without the specifications a wide range of products might satisfy the same overall image that the drawings represent. A drawing will say ‘install spray foam insulation Type 1’. The specifications will tell you it is closed cell polyurethane at 7.6 R per inch, the acceptable manufacturer(s), that a Type 1 is to be 5” thick, that it needs a required wrap to meet fire code and it should cure for a certain number of days before it is enclosed by sheet rock. Imagine putting that on the drawings the several dozen times the product occurs (sections, details, plans, etc.) and you get the actual point of using specifications: to help streamline the process. Not to mention if you want to change Type 1 to 7.5” or to open cell you only have to do it in one location, in the specifications.

Think about the project where the potential contractor has received his bid set only to see a lot of notes like “to be confirmed by the architect the field” or “as directed by the architect once the samples are received” or a generic statement that says “provide wood doors, jambs and hardware to our standards” that don’t mention that the products in question are expected to be hand laid up and lacquered sapelle with hand wrought door handles and hinges (haven’t you seen our brochure – that’s our trademark). The contractor who is familiar with what that architect is expecting has a major dilemma on their hands. Do you provide a price that gives the client what they are expecting (because they did hire this starchitect for a reason) or do you bid it like the drawings say, knowing you will be fighting for change order requests down the road, and alienating both the client and the architect. From the contractors that I have spoken, to this is too often the realty rather than the exception, particularly in residential and small commercial projects.

So why does this happen. One could postulate that it happens for the same reason architects don’t use formal contracts. I’ll let you decide whether it is the belief in the benevolence of mankind, or just sloth. Either way, you can get your butt sued and create all sorts of construction administration nightmares along the way. And given the logical outcome that you will, at some point have to go to the site and make all those decisions that you put off to get the drawings out ‘on time’, why not just do it right in the first place? Particularly since field time is much more expensive and less controllable than office time.

As always, Nick and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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For this week’s Guest Post Friday here at Musings, we welcome Mike Collignon.  Mike is a co-founder of the Green Builder Coalition.

From November 2-6, code officials, building officials, industry stakeholders and other interested parties gathered in Phoenix for the final round of hearings on the International Green Construction Code (IgCC). Coming into the hearings, there were two big questions: Would this code pertain to low-rise residential structures, and what effect would GG34 have on the final draft? Once the dust settled, the industry is left with a code that is certainly a step in the right direction. However, its adoptability has to be questioned.

In the spirit of brevity, I won’t go into the 2.5 year saga of low-rise residential’s place within the IgCC. (You can read the unabridged story here.) Suffice to say it was in the original draft, and then it was removed by the ICC Board prior to public version 2.0. A group, including members of the Green Builder® Coalition, United States Green Building Council (USGBC), MC2 Mathis Consulting, the Southern Nevada Water Authority and 3 building officials from across the country, developed a comprehensive public comment to reinstate low-rise residential structures into the code. The comment, which can be downloaded in its entirety here, covered commonly accepted principals of sustainable construction (energy, water, site, materials, IAQ). Testifying in opposition to this comment were representatives from the National Association of Homebuilders (NAHB), American Architectural Manufacturers Association (AAMA), Buildings Owners & Managers Association (BOMA), Window & Door Manufacturers Association (WDMA), and 2 building officials. After hearing testimony, the voting members voted approximately 2-1 to disapprove the motion.Therefore, the IgCC only covers commercial and some high-rise residential structures. It turns a blind eye to low-rise residential, which according to the Energy Information Administration, utilizes more energy than commercial structures. In my opinion, this is an enormous hole in what could have been an incredibly impactful code. One opponent to the comment stated that with the housing market in such a tough spot, we don’t need to increase the cost of construction. But my response is, would the industry rather wait until things are going great, then throw a wrench in the works by having almost everyone retool their business practices to incorporate sustainable techniques, possibly risking another dip in the housing market? Why not get the education now, when supposedly everyone has a lot of down time?

Prior to the hearings, I heard a lot of buzz surrounding GG34 and its desire to reduce the length of the code by 75%. The proponents of this movement were, through a series of proposals in almost every chapter of the code, trying to shrink the document from 220+ pages to 50+ pages. Allegedly, at the core of this movement was a backlash towards the regulation of green. A more marketable way of saying that is GG34’s intent was to simplify the code. After Day 1 of the final action hearings, it certainly seemed like GG34 was going to sweep the IgCC right out the door. The principal members of the GG34 movement only spoke on a handful of proposals. They made their identity and position clear, by their promotional buttons and testimony, respectively. Of the 21 proposals heard on Day 1, 14 were disapproved, which further reduced the length of the code. GG34 Part 1 passed, which took a 2/3 majority, no small feat.

But then, Day 2 came and the tide went out on GG34. So, too, did the attendance. On Day 1, one electronic vote garnered 190 votes. But on Day 2, that number dropped to 130, or almost 32% fewer voting members. I feel that a lot of the voters sympathetic to the GG34 movement made their voice heard on Day 1, but then must have caught a flight back home. Throughout the rest of the week, GG34 Parts 2 through 11 were dismissed. Only GG34 Part 12 would join Part 1 in the victory column. One colleague stated that had all parts of GG34 been considered on Day 1, it would have carried the day… and the green code with it. I can’t disagree with that opinion.

I certainly feel the lowered attendance numbers had a lot to do with the failure of the GG34 movement. On Saturday afternoon, there were 55 votes captured in one electronic vote. In the wee hours of Saturday morning, testimony went past 1:00am CT. There were 34 hearty souls still dedicating their time and opinions to the proposals presented. According to one source, the lowest total seen during the week was 17 voters. However, the attendance numbers alone don’t tell the whole story. Those who voted all week long fully understood the intention of the code, and had a respect and appreciation for those who had devoted the last 2.5 years to its creation. They weren’t about to gut a document that had been reviewed and analyzed by so many.

But now comes the complicated part. Some jurisdictions have already adopted earlier versions of the IgCC. My guess is they will simply update what they’ve already approved. But what about those jurisdictions who voted with the GG34 movement on Day 1? They’re not going to get the drastically reduced code they sought, so will they adopt it at all? What about those jurisdictions who were looking to the ICC for low-rise residential guidance? They, too, are left to contemplate what their next steps will be. Finally, everything that was approved or disapproved in Phoenix is merely a recommendation to the ICC Board. They retain the right to produce whatever they see fit. Will they circumvent their governmental voting members and manipulate the code into something that fits better with their business goals, or adheres to any pre-existing business agreements?

I don’t have any inside knowledge on this, but I’m guessing the last thing ICC wants is a code few adopt. Let’s face it, their business is selling books and educating people on how to enforce the content of those books. The mixed messages heard in Phoenix provide a murky forecast for the IgCC. If you’re a proponent of green building, that’s probably not the verdict you really wanted to see.

As always, Mike and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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For this week’s Guest Post Friday here at Construction Law Musings, we would like to welcome back Sean Lintow Sr. (@SLSConstruction) of

I must first echo Brian Hill’s comments in last week’s Guest Musing; truly I am humbled and honored to be invited back to Construction Law Musings for another guest post. Today I would like to not only give a shout out to Brian Hill for his post “True Sustainability –Trust but Verify” but expand on it some. I really have to say, that is one of the best posts I have read recently on the subject and the points made about Quality First, Safety Third, and using Third Party Verifiers.

In regards to Quality Assurance, I would like to discuss one tool that we use not only in the residential arena but also in the commercial & industrial buildings – the Infrared (IR) Camera. While many taut the benefits of using them for Predictive Maintenance, insurance companies are starting to require yearly scans, or as Brian Connolly pointed out in his musing to collecting forensic evidence with IR, they can also be used during the building process. By using it during the building process as part of the QA process, one can hopefully not only catch an issue early, but eliminate the need for someone to collect said forensic evidence later. For more on the cost savings of catching the issue early, I would refer you to the end of my prior guest post.

What is Infrared Thermography & how can it help?

In short, an Infrared Thermographer uses a special camera to detect thermal patterns (infrared energy) being radiated from an object, or looks more specifically for thermal anomalies. (For a more in depth look: IR FAQ) Now unlike the movies, this tool cannot see through a wall or other object, predict a failure before it starts, or see air (love them salesmen). (For more on this: Infrared Training Notes – Day 2)

With that said, while one cannot look through walls; a component that contains water or is denser than the surrounding area will heat or cool more slowly which plays a large factor in spotting issues or verifying that work was done properly.

With this in mind and a little physics, a knowledgeable individual can spot damaged areas on a flat roof, verify that the block walls were grouted, or even spot missing areas of insulation without drilling. In the electrical arena (assuming they are energized & drawing a load), one can help use this to check panels for under or over-torqued connections, spot issues with motor control circuits and other related issues. For places with steam traps, motors, &/or pumps, one can start them up & verify that the equipment is working properly or if there might be a mechanical issue with the equipment before it is turned over to the owners.

Buyer Beware – Qualifications & Certifications:

Along the lines of Trust but Verify one should be careful when hiring an Infrared Thermographer. While the ASNT (American Society for Nondestructive Testing) has recommended qualifications (SNT_TC_1A), and criteria for this field, it is not mandatory. The ASNT simply sets the standards and leaves it up to the employer to “verify” & “certify” their employees. If an individual leaves an organization & joins another one, it is up to that company to decide which level they hold if any. (For more on this: Infrared Training Notes – Day 1)

Where this gets interesting and is confusing for many is for one man shops and smaller companies where the owner (like me) is the “certification” authority. Are they following the ASNT standards and self-certifying, using an organization to manage the certification or do they just go; here’s the camera you are now a Level 1 or 2 Thermographer, or do they just call themselves a Level 1, 2, 3 or 5? (While there is no such thing as a Level 5, that didn’t prevent one individual from trying to use it) As a quick FYI, yes I do follow the standards (inc. the hour requirement) and have completed and passed both the Level 1 & 2 classes from the SNELL group.

The ASNT does have one certification which is for Level 3’s only & they are very specific on how it is used. Individuals certified by ASNT may refer to themselves as “ASNT certified” and/or use the title “ASNT NDT Level 3.”  At no time should any individual be listed as just “certified Level 3” as this can lead to confusion. For those certified by their employer only, they should simply refer to themselves as “Level 3.”  While there are classes & testing specific to the functions a Level 3 performs offered by some organizations like SNELL, as you are not being tested by ASNT so you need to use the term “certified in accordance with Recommended Practice No. SNT-TC-1A,” or simply Level 3.

A Few Last Thoughts:

I know numerous GC’s, PM’s, and other trades people that have added an IR camera to their arsenal – if you do decide to join their ranks I would strongly encourage you to get some training on it. I know when I went through my Level 1 training there were numerous people that had been doing the work for years & to a T, everyone in that class remarked on how much they learned & how much the training helped them. One other great reason to get training is so it will help you identify if what you see, is really legitimate. I have a scan of an electrical panel where it reads almost 300°F in two spots which is generally a real bad sign. Fortunately the issue wasn’t the panel; it was just a reflection of an un-insulated portion of a boiler line that was behind me when I took the picture.

In today’s litigious society or just simply for your piece of mind, if you have a camera – I would recommend using it for checking up on the work. I would then make sure you bring in a professional for any documentation or QA work that needs to be done as the project moves along. Along those same lines, if a spec is listed requiring an IR inspection you might want to confer with a specialist first. I have surprised a few lawyers & dashed some peoples hopes when I explained why their request was either impossible, or what the most that could be gleaned from it would be. The Infrared Camera is a great tool, but like any tool it does have its purpose & limitations.

As always, Sean and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

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I hope that you and your kids have a spooky, fun and candy filled Halloween.

Thanks for all of the comments, guest posts and readership!

As always, I welcome your comments below.  Please subscribe to keep up with this and other Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

Brian L. Hill helps others to achieve more from less through business development, digital media and construction consulting. A fourth generation construction/real estate professional, he shares his passion for pursuing quality in the built environment at AECforensics.com. Always on the search for quality content, if you are a professional in the A/E/C industry, consider writing for AECforensics.com. For more information about Brian, visit BLHill.info.

I’m humbled and honored to once again be able to be invited back to Construction Law Musings for another Guest Post Friday. Last February, I wrote about the role of forensics in the A/E/C industry. In that post, I stated that that the green building movement is clearly a driving force in furthering innovation in construction. But as I concluded, “in order to push the limits of architecture, engineering and construction, one must know what the limits are.” In this post, we are going to look at the role that quality plays in green building, because perhaps the biggest obstacle to true sustainability, is the construction industry itself.

Broken Buildings Aren’t Sustainable

For the hands-down best book on the true state of the construction industry in the U.S., look no further than Barry LePatner’s seminal work, Broken Buildings, Busted Budgets, published by The University of Chicago Press. In the book, LePatner identifies a number of pressing concerns that hinder the ability of the industry to deliver projects consistently on time and under budget. And while I agree with most of his points, I disagree with one of the major tenets of his thesis – which I’ll get to in just a moment. But first, I’d like to share my own perspective.

I have worked for over a decade specifically in construction defect litigation, primarily on behalf of experts providing technical opinions. However, I myself am not an expert (in the legal sense), nor do I have any interest in seeking such designation. I am an independent observer, a documenter of facts. And what I have observed is this – of the literally thousands of buildings I’ve personally investigated, not a single one was built 100% per plans, per specifications, per code, and/or per “industry standards.”

Unfortunately, construction defect litigation hasn’t resulted in a better standard of quality. There are a number of reasons for this:

• Not every stakeholder/owner elects to pursue litigation (the vast majority of defect claims involve residential projects)
• Many legitimate defects are not covered by insurance – so even if legal liability exists, without coverage, there is no point in pursuing a claim (insurance carriers determine standard of care for the construction industry, make no mistake)
• Statutes of limitation/repose limit the time available in which to file a claim
• Most importantly, even when claims are filed and monies are paid to claimants, most defects are not repaired (we used to call these “Suburban lawsuits” because a few months after a case settled, there would be a lot more new Suburbans in the driveways)

Even when building owners do make repairs following a construction defect claim, they rarely are able to or are knowledgeable enough to make all of the necessary repairs. Regardless of issues over liability or insurance coverage, many construction defects do decrease the useful life of various components and assemblies. If you ask a layperson how long a building should be expected to last, you’ll probably hear something from several decades to forever. But those of us in the industry know that a building must only last long enough for the statutes of limitation to expire.

This isn’t helping the reputation of the construction industry. Here’s something to ponder: To my knowledge, no large overextended construction firms have been bailed out by the government, but their insurance carrier may have been. The culture in the A/E/C industry needs to undergo radical change in order to be truly sustainable.

Getting back to LePatner’s book, his solution is that massive consolidation should take place in the construction industry resulting in huge corporations functioning somewhat like an oligarchy. He suggests that we should be like auto workers. Is that what we want?

The current state of the construction industry does not bode well for the green building movement. The desired outcome of green building is to reduce use of nonrenewable resources during the construction and operation/maintenance of a building, as well as to improve the “quality of life” for stakeholders and the general public. Unfortunately, many of the specific green building provisions in a typical program are not covered by standard insurance policies. Without insurance, there is no money to fund repairs to deficient work. That doesn’t mean that there’s no liability, but in the end, the stakeholders are once again going to be left holding the bag.

Who are the stakeholders for green building projects? Besides the owner and end users, the whole point of green building is to build projects that benefit the entire planet. Therefore we are all stakeholders for green building projects.

Quality First

For too long, the mantra in our industry has been, “Safety First.” To get a great perspective on this subject, I suggest reading Mr. Dirty Jobs, Mike Rowe’s take: Safety First or Just in the Top 3. Quality is defined as, “the standard of something as measured against other things of a similar kind; the degree of excellence of something.” In other words, it means doing one’s job right. Part of that means following applicable safety protocols. But as long as safety is the highest bar, we as an industry are doomed.

Quality must become co-equal with safety and green building practices if we are going to create a truly sustainable built environment.

How do we get there? The key to improving construction quality is to take the approach of Trust, But Verify. In the last several months, I’ve had the opportunity to get to know some companies that are offering real innovation in this regard.

At the most basic level is documentation. By thoroughly documenting the construction of a building at regular intervals, companies like Multivista and Geedra are empowering stakeholders and the project team in the pursuit of quality. Photographs of specific locations over time are integrated into an interactive floor plan and/or building model. This is not only beneficial for reducing risk, but provides an incredible resource for facility management following turnover.

While thorough documentation is helpful, quality control practices have evolved to foster better “checks and balances” for construction. Many construction managers, general contractors and subcontractors have developed strong internal quality control programs. Vela Systems takes this even farther by offering a complete suite of software for construction field management. The company is even credited with developing the first construction app for the iPad.

Unfortunately, documentation and quality control are not enough. An internal quality control program is akin to the fox watching the hen house. Additionally, quality control is reactive, whereas quality assurance is proactive. The purpose of a properly implemented third party quality assurance verification program is to “infuse a culture of excellence into every level of a project,” according to Erik Peterson of OAC Management Incorporated. (Erik was also featured on this blog for a guest post entitled, The Two Words No One Wants To Hear.) I recently attended training necessary to become a Certified Quality Assurance Practitioner, per the Quality Assurance Observation (QAO) methodology developed by Peterson. Quality Assurance Observation “is the act of verifying, at predetermined incremental stages, the condition of a particular scope of work, activity, task or assembly, meets and/or exceeds the distinctive characteristics, properties or attributes that have been specified and defined.”

Until the green building movement embraces a Trust, But Verify approach, the mission is doomed to fall below expectations. True sustainability means properly assembled buildings that will exceed not just the statute of limitations (the current standard of performance), but long enough to outlast our current building stock. If we are all stakeholders in green building, shouldn’t someone be making sure that we’re getting what we’re paying for?

Brian and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday here at Musings, we welcome James Kim.  James writes for Austin Real Estate service Homecity.com. HomeCity combines powerful online Austin MLS search technology and other online tools with personalized real estate services to provide clients with the knowledge they need to make the right buying and selling decisions.

From Austin Real Estate to New York City, everyone seems to be raving about a new trend in horticulture: rooftop gardening. These gardens are adding life and color to dim cities and dark roofs. So how can you adopt this trend in your home? Here are some different options for creative gardening.

Why should I invest in a rooftop garden?

Rooftop gardens can:

• Improve air quality
• Insulate buildings
• Support/create local food (which is healthier and fresher)
• Delay water runoff
• Reduce heat-absorbing surfaces, thereby making area cooler
• Bring color to a dull roof!

How is a green roof built?

While there are plenty of different types of roof gardens, they are built in basically the same manner. There are several layers needed to sustain a rooftop garden:

• Waterproof layer – This base layer is added straight to the roof to ensure that the water from the garden will not leak onto the roof.
• Roof membrane – A pond/butyl lining is to be laid over the waterproof layer in a continuous sheet, whenever possible. If this is not possible, overlap the sheets by 20 cm.
• Filter Sheet – This sheet allows moisture to drain off the roof.
• Moisture blanket – This layer ensures that the growing medium retains enough moisture for plant-life. It is possible to use an old blanket or cardboard as your moisture blanket.

Then comes the last layer. . .

• Soils, seeds, and plants – A growing medium should be nice and light. Plant your seeds and voila! Watch your rooftop garden blossom before your eyes.

If the idea of building your own roof garden scares you a bit, there are plenty of professionals out there who now specialize in roof garden installation. Additionally, you don’t have to entirely cover your roof in a garden. There are plenty of “container gardens,” which are easy to install and cost efficient.

What type of plants grow on roofs?

The type of plants for your green roof depends on your taste, climate, and type of roof garden. For and area with large amounts of sunlight, you may opt for hearty shrubs and bushes, fruit trees, junipers, and grasses, which can all withstand strong winds. If you’re roof is a bit sheltered, you should stay away from tall-stemmed, top heavy flowers like lilies or peonies. Alpine and low water plants, like moss, ferns, sedum and sempervivum thrive in rooftop conditions.

Whether you live in suburbia or a cosmopolitan area, a rooftop garden will bring life to this underutilized space. Make your life a little greener by building a green roof!

James and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday Post here at Construction Law Musings, we welcome Brian L. Hill.  Brian is a construction defect investigator and business development consultant. While not related to Christopher Hill, he does share the same passion for all things related to the built environment. Brian is the editor-in-chief and publisher of AEC Forensics, a curated blog of news and information pertaining to construction consulting, construction law and building science. Always on the search for quality content, if you are a lawyer or expert in the A/E/C industry, please contact Mr. Hill at editor@aecforensics.com to inquire about guest posting. For more information about Brian, visit BLHill.info.

One of my earliest memories as a child is visiting my father at a house he was remodeling and riding on his lap in a skip loader. I also spent many hours at my grandparent’s real estate brokerage and tagging along for property showings and open houses. I wasn’t always interested in construction and real estate – throughout junior high and high school, I managed a successful professional music business. I realized however, that the life of a professional jazz musician can be very difficult. Construction, real estate, business management and marketing are in my DNA. And I found my niche in the world of architectural, engineering and construction forensics.

In middle school, while the other kids at the science fair were examining whether white or wheat bread were more likely to create mold, or constructing telescopes out of Pringles© cans, I conducted an experiment analyzing lumber. Despite some flaws to the experiment, I was able to successfully demonstrate the relative strength of air-dried, kiln-dried and green lumber using a torque wrench connected to a lever. While it was mildly interesting to understand how the moisture content of lumber might affect structural integrity, I think the biggest impact for me was understanding how important testing materials and components to the point of failure is to the design and construction of the built environment.

What is Forensic Science

Although most commonly associated with criminal matters, due to the popularity of shows like CSI, forensic science is applied to many disciplines, including architecture, engineering and construction (A/E/C). According to Wikipedia, forensic science “is the application of a broad spectrum of sciences to answer questions of interest to a legal system.”

One of the core concepts in A/E/C forensics is failure analysis. If something is broken, we want to know why. In practical terms, this means thoroughly inspecting and documenting the condition of a property. In some situations it is also necessary to perform experiments that can provide insight into the causes of various failures. This is a process that is known as intrusive or destructive testing. The data collected from the investigation is then analyzed and interpreted by qualified experts. The expert presents their findings in the form of a written report or in some cases, as testimony in a deposition or trial.

What is the Role of Forensic Science in the A/E/C Industry?

In the most simple terms, forensic science shows us what not to do. More importantly, it tells us why certain materials and methods work better than others. Take reinforced concrete, for example. Concrete by itself resists compression very well when pressure is applied. But concrete does not stretch much before failing. Steel has excellent tensile strength and can resist pulling and stretching much better than concrete. Therefore, using steel as reinforcement for concrete creates an assembly that resists both pushing and pulling. Many of the great architectural designs of our modern era would not be possible without reinforced concrete.

Testing components and assemblies to the point of failure provides understanding regarding the limitations of those materials. As a native Californian, growing up near the San Andreas fault, I’ve been through a number of earthquakes. Analysis of structural failures following seismic events has led to the development of new materials and methods. Applying this knowledge to the built environment has saved many lives. The earthquake in Haiti demonstrated the tragedy that can occur when forensic science is ignored.

One example of how forensic science directly applies to design and construction is in the realm of fire resistance. Events such as the MGM Grand fire highlight the importance of designing buildings to protect life in the event of a fire. To do so, wall assemblies are constructed and weight is applied. This simulates the effect of a load-bearing wall that is supporting the weight of roofing or other floors. A fire is then set and researchers measure the amount of time that the wall will continue to support the weight before collapsing. Knowing how long a particular wall assembly will perform in a fire is very important for saving lives.

Another example of the application of forensic science in the built environment has to do with common causes of water intrusion. The typical house is constructed with a weather barrier that is simply meant to keep the weather outside. This material wraps the entire house, except of course at openings such as windows and doors. The weather barrier is protected by the exterior cladding such as siding or stucco. According to a 2007 study, researchers at the University of Florida determined that 69% of construction defect claims in a sample of 17,000 claims were related to water intrusion. What is the cause of these defects typically? Many times, the culprit is a small $.02 fastener used to attach other materials, causing a tear in the weather barrier. The cost to repair such a defect? Anywhere from $750 to $2,500 – per location.

Although the A/E/C industry as a whole is suffering in the current economic environment, that hasn’t stopped innovation. The green building movement is seen by many as the future for construction and design. Forensic science provides validation of new materials and methods necessary for adoption by owners, design professionals, contractors, code enforcement agencies, insurance carriers and financiers. Additionally, failures of the building envelope not only impact energy efficiency, but can also contribute to problems with indoor air quality among others. Not to mention all the wasted materials that get carted off to the landfill when widespread repairs to failed components occur.

In order to push the limits of architecture, engineering and construction, one must know what the limits are. Through careful analysis and testing of materials, forensic science accomplishes this goal. The result is safer, more energy efficient and more comfortable buildings for humans to live, work, learn and play in.

Brian and I welcome your comments below.  Also, please subscribe to keep up with this and other Guest Post Friday Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

The most recent post was from Jennifer Watt (@jenniferlwatt) on When Enough is Enough…the Cardinal Change Doctrine

Brian Connolly (@infraredscans) added to the discussion with some great advice on Using Infrared Technology in Construction Law: Collecting Forensic Evidence and Performing Due Diligence

My pal and fellow construction attorney, Doug Reiser (@douglasreiser) wrote about Certification Bodies: Who Are They And How Do I Do Business With Them?

Greg Shelton, a new friend to Musings, posted A Fork in the Road: Choosing Where to Litigate Your Federal Contract Claim as part of his series on federal contracting claims.

As one last highlight, my good friend Scott Wolfe (@scottwolfejr) posted the wildly popular The Landscape of US Immigration Laws and How It Affects The Construction Industry

These are only some of the most recent of the Guest Post Friday posts here at Construction Law Musings and I know I have left some of the best off of this list because there are too many great ones to name them all.  Please check out the rest, you will learn something.  I know I did.

As always, I welcome and encourage your comments below, please share your thoughts.  Also, please subscribe to keep up with the latest Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.

For this week’s Guest Post Friday, Musings welcomes back Doug Reiser (@douglasreiser) for the fourth time.  Doug is a construction attorney, LEED AP and the principal at Reiser Legal PLLC in Seattle, WA. His office provides construction counsel for businesses in the construction industry. He also runs the

Certification, they all want it.  What makes your building look better than your neighbor’s? That plaque, that logo or that sign denoting that a prominent organization said your project is worthy enough to carry their torch.

LEED, Passive Haus, Living Building Challenge, Greenroads – you’ve all heard of them.   They are examples of a growing group of third party organizations that are willing to tell you whether your project is exceptional.  These organizations aren’t contractors, they’re document reviewers. But, that review can be very valuable to a builder or government agency.

People like to think that you simply line up to the trough and get your certification. But, the reality is that certification is never guaranteed. Are you ready to be told no?  Do you even know how the process works? Do you know your remedies against these organizations? Probably not.

There is no reason to hang your head if you answered my above questions in the negative. The reality is that certification bodies are an unknown. Few attorneys, consultants and government agencies actually understand how they work. Here is a snippet of the process:

1. Registration – You pay money, and they give you entry to their world. Registration often comes with the benefit of telling the world that you are working towards certification. Thus, you may get to use the organization’s logo.
2. Exchange – The major step in the certification process is the exchange of documents, verifying the actions take on the project, the materials used, and the results of inspections and testing.
3. Review – Once it has what it needs, the organization will ask for your help in its review of your files. Responsiveness is highly recommended.
4. Certification – After the review is complete, you are handed certification or you are denied certification and given limited appeal rights.
5. Post-Certification – Assuming you got the golden goose, you might have to commit to turning over testing documentation for a period of time. Don’t worry though – none of the big guys have said they will take back your prize.

So, what happens when and if you have a problem with one of these organizations?  Most (if not all) of the more prominent organizations are non-profit and have few resources to throw at your dilemma. These organizations manage these potential problems up-front, through their agreement.

Certification bodies typically post their agreements online. If you read through the certification procedure above, you may have noticed a few things that be might have an effect on the way you do business with a certification body:

1. Working in the Cloud – First, a certification organization is not a contractor. Certification bodies never step foot on a project unless there is a glaring problem with your documents and they invoke a right to inspect. Many users believe that they can haul the organization into their home courts, under their home law. But, the activities performed by these organizations might not alone subject them to those jurisdictions. Where a forum and governing law clause is absent, the debate is up in the air.
2. Site Liability – The first time I heard a government agency ask an organization for liability insurance, I was puzzled. How can an invisible third party have an “on-site” liability exposure? While you may regard their logo or plaque as capable of causing mass hysteria turned into site meltdown, I think that users can skip the demand for liability insurance.
3. Certification Expectations – Many users seek certification to get tax breaks, financing incentives and other benefits.  But, a certification organization does not know why you “need” their certification.  For that reason, consequential losses and damages are typically waived – and they probably should be. If certification is dire to your project and the slightest hint of negligence or error might throw you off track, you might try to negotiate for additional protection.  But this group of non-profits are not always up for the challenge, so give yourself enough time to manage a potential certification denial or delay.
4. Navigating Disputes – Know ahead of time how to manage denial or disputes. Most good organizations have a pre-determined appeal process for denials, and a claims process for disputes. Remember that you have most likely agreed to some of these procedures in your agreement. Failing to follow the rules might leave you empty-handed without a remedy.
5. Using Your Plaque – Your plaque is pretty, but it comes with conditions. The USGBC’s Trademark Policy is as big as some legal texts (a bit of an exaggeration), so be advised that you are expected to read it and comply. Failing to appropriately use the intellectual property of a certification organization might be the easiest way to lose your certification. Know exactly what logos you can use, where you can hang them and how your written materials should look. Remember, these organizations are non-profits that rely heavily on their IP rights for survival. They will fight for them.

Certification bodies have become an important and virtually necessary part of building smart. Knowing how they work can help you navigate their procedures and plan for potential disputes.

As always, Doug and I welcome your comments below.  Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.

© Construction Law Musings- Richmond, VA is licensed under a Creative Commons Attribution-No Derivative Works 3.0 U.S. license.