Mini Bar Exam

Let’s test what you have learned from my articles. The following questions can be answered by recalling the most important points and applying them to different scenarios. Keep your answers, and check them against those I will provide in the next issue.

1. On an industrial project, the only mention of the types of electrical devices on hydraulic equipment is in the mechanical specifications, and you missed it. The general conditions require that your installation be a complete job.
A. The wiring is the mechanical subcontractor’s responsibility. The reference is only in that subcontractor’s drawings and specifications.
b. The wiring is your responsibility as part of the total electrical package.
c. The wiring is an extra, either for you or the mechanical subcontractor, because the designer had the responsibility for coordinating the drawings.
d. The wiring issue arises from vagueness and ambiguity.

2. You and the general contractor (GC)are going to submit a joint claim for delays and disruptions caused by the owner. During claim preparation, you discover that the original schedule submitted by the GC has serious errors and will not fully support your arguments.
a. Redraft a new “original” schedule, correcting the mistakes, and base your claim on this document.
b. Use the existing schedule for the claims, and hope that the owner won’t see the problem; after all, he approved it originally.
c. Drop the claims as unprovable.

3. Each month, you submit a partial waiver of lien form with your payment request. The form acknowledges that, upon payment, you are fully compensated for all work performed through the date of the pay request.
a. By signing the form, you have waived any existing but unsubmitted claims for extras.
b. By signing the form, you have waived your right to retention.
c. Even though a formal change order has not been issued for agreed extras, your rights have been preserved.
d. The form only applies to the current payment.

4. The owner’s terms and conditions, incorporated by reference into your subcontract, state that any litigation can only be filed in state court in Louisiana. The project is in Illinois.
a. Venue selection clauses (where the lawsuit must be tried) are not passed through by a general incorporation clause.
b. The venue selection is binding but not on the locale for filing a lien or a bond action.
c. The venue selection clause is unenforceable because the project is located in Illinois, and you never got a copy of the owner’s contract.

5. You are asked to perform work that you are convinced is extra to your contract. When you submit a claim, the GC rejects it and orders you to proceed.
a. No additional notice or documentation is needed to preserve the claim. It would be a waste of time.
b. You must keep the general up-to-date on your added costs even though the claim was denied.
c. You should refuse to perform the work until an agreement is reached.

6. A nine-month job has accumulated 45 days of delay, and there is a dispute over who is liable for the delay. The owner tells you that a time extension will not be granted, and you must accelerate performance. Acceleration will cost you more than paying the low per diem that is specified as liquidated damages (LDs).
a. You can take your time and risk paying liquidated damages. LDs are the only contract remedy for the owner.
b. The owner retains the right to terminate your contract for default because of the delay.
c. The owner can assess LDs and also terminate your contract.

7. A state university is building an L-shaped, nine-story dormitory and has employed a construction manager (CM). Your bid is based, in part, on the contract schedule. Early in the project, the CM changes the schedule so that the two arms of the “L” are now treated as separate projects with the same completion date for both arms.
a. Your budget is unaffected, so you can proceed as directed.
b. The CM has no authority to make such a major modification to the schedule, and there is no change order; therefore, you can ignore the new plan entirely.
c. You can find no clauses in your contract covering this situation, as there is no new or extra work, and the completion date remains unchanged.
d. You should sit down with your project people and try to imagine what the schedule change might mean.

8. You have two contracts on two rental storage installations. The developer is always short or late on payments; however, the jobs are good, and there is a real opportunity for six or seven other storage jobs with this developer in the near future. You express your concerns about financing, and the developer invites you to a meeting with his banker. At the meeting, the banker says he does not see any problem with money. The developer later defaults.
a. You can sue the bank for false representation because the banker said things were OK.
b. The banker’s statement, together with the rosy picture painted by the developer, is an independent representation allowing you to sue the developer for fraud.
c. The assurance of future financial stability is not a legally binding promise at all, and you are out of luck.
d. You should have confirmed the banker’s statement in writing. Oral promises are worthless.

9. You have done three jobs in seven years for the same owner retrofitting warehouses. Each time, the contract called for a structural certification from an engineer that the columns can bear the weight of your cable tray. The owner never asked for the certification, and you didn’t provide one. This is your fourth job, and the same certification specification is in the contract. You didn’t include the certification costs in your bid. The owner is now asking for the certification, but it will cost thousands of dollars to obtain and will delay your work.
a. The owner’s past actions are a waiver of the specification.
b. Three jobs establish a “course of dealing” that the specification will not be enforced.
c. The owner has the right to enforce the specification or not.
d. Because the owner knew that there was no line item in your invoicing for the certification, the work requires a change order.

ITTIG, of Ittig & Ittig, P.C., in Washington, D.C., can be contacted at 202.387.5508, and

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