Dealing With Difficult People

From the Constructors Corner Archive:  Written by Weston DeHart

Every day, our business puts us in situations where we must deal with difficult people. It is easy to let emotions come into play when people act in an un professional way and create an adversarial atmosphere for the remainder of the business relationship. I believe the contracting business can easily set up this adversarial relationship because construction projects have so many unknown and unforeseeable problems that must be overcome in order to have a successful end product.

One of the reasons we have so many repeat clients is because of our reputation for being team players. From the very beginning of each project, we must make everyone involved aware that we are all part of the same team. Our goal is to provide the owner with a quality building, on time, and within budget. At the same time, we want the project to be profitable for each subcontractor, and be a pleasant place to work each day.

The easiest way to create a teamwork atmosphere is by good communication. It is easy to get in a habit of communicating too much by email and not enough in person or by phone. Get in a habit early in the project of communicating verbally with everyone on the team, owner, architect, and subcontractors. However, do always follow up on any decisions discussed by sending an email to confirm. Start the email with the phrase “Per our discussion today....”

Often times not everyone will want to be part of the team. These people will only see problems from their own perspective, often making small problems 

into big issues. When approaching team members like this, it is important to first take all of the emotion out of the situation. If a situation becomes emotional, have the foresight to realize that it might not be the best time to deal with the problem. Let the situation cool off and approach it with a better attitude when the time is right, after consulting several associates to determine if your stance is the correct one. Do not leave the problem unsolved, as this will just create worse communication problems down the road.

Good relationships are priceless for our business. Any chance you have to help a subcontractor make his work easier, take it. Especially if they are difficult to deal with. The effort will pay off when there is a time that you need a favor of them. However, do not deal in financial favors because they will cause conflict of their own.
Also, do not overlook the opportunity to help the architect or engineer. Always offer solutions, do not simply identify problems. The quickest way to get a bad relationship with an architect or engineer is to point fingers when a problem arises. If you do this, those fingers will no doubt point back to us when we make a mistake. In order to keep from doing this, focus on helping with a solution instead of dissecting who was the cause of the problem. With this in mind, make sure we do not take the blame for problems we did not create. 

Project Spotlight: El Reno Schools Bond Projects

CMSWillowbrook teams in El Reno remain hard at work, pushing ever closer to completion of the school district's bond projects. In this month's Constructor newsletter, we recognize the CM team that has worked so hard to get these projects off the ground and into timely construction. Team members working on the eight El Reno Public Schools bond projects include Rick Watts, Senior Project Manager; Cory Pivniska, Project Manager; Cindy Stewart, Project Accountant; Dale Smith, Superintendent for the new Lincoln Elementary; Chuck Ivey, Superintendent for the new STEM Center; Bill Jones, Superintendent for High School Renovations, HS/Hillcrest storm shelters, and Lucus Hall; and Mike Hall, superintendent at Rose Witcher; and many others.

All projects will be completed by August 2015, when the district will make its transition of moving their students and faculty/staff. The two old elementary schools will go offline and be demolished in the fall.

Below are brief descriptions of the projects:

Rose Witcher Elementary
Square Feet: 21,000 • Building Cost: 2.4 Million • Completion Date: June 2015

The Rose Witcher Elementary project is a three-phase renovation. The administration office in the main entrance is getting expanded with 2 offices and a secured vestibule. There is a single classroom addition that is being added to the northeast corner of the building that will be used for a 1st grade learning area. The third addition is an above ground safe room that contains 4 classrooms with restrooms that will handle the entire school in case of an emergency. The school is also getting all of the lights upgraded to LED and new vct flooring throughout. The gym received air conditioning that it originally did not last summer.

El Reno High School STEM Center 
Square Feet: 37,000 • Building Cost: 7.1 million • Completion Date: July 2015

The Stem Center is a two story science and math center for the El Reno High School. The building is directly across from the existing high school. The building will contain a new full service kitchen, state of the art science labs, and the commons will double as a community center. The building will serve as the centerpiece of the upgrades that the 2011 Bond issue. The finishes and technology throughout the building resemble a cutting edge university rather than a high school setting. 

High School Renovations
Building Cost: 1.2 million • Square Feet: 73,000 • Completion Date: August 2015

This is a renovation to the existing high school that consists of all lighting upgraded to LEDs as well as new flooring throughout. In the basement of the building we are adding new flooring to the basketball court and locker rooms. The entire interior of the school is getting painted and flooring upgrades. The auditorium is getting expanded with new lighting and paint. The stairwells are also being renovated to allow for open stairwells, making the building seem much larger. The 4 floors of corridors will receive tile upgrades to all walls.  

Below Ground Saferooms
Building Cost: 3.8 million • Square Feet: 18,000 • Completed: April 2015

After the 2013 May tornadoes, the El Reno community had heightened concerns about saferooms. They requested that the focus not be on above ground shelters but instead below ground. With moneys saved, four shelters were built at Roblyer Middle School, Lincoln Elementary, and Hillcrest elementary all received their own shelters in the shadows of their school. The Central Grounds shelter was the largest of the three and it is located near the High School, the Stem Center, and Lucus Hall Middle School. 

Hillcrest Elementary 
Building Cost: 1.6 million • Square Feet: 62,000 • Completed: December 2014

This was a three-part addition, which included three classrooms and an administration area consisted of a secured vestibule. The classrooms are for 2nd grade students. The flooring was upgraded throughout the building. The exterior received a new entrance, new drop-off lane, and a covered canopy for the student loading zone. The gym received air conditioning that it originally did not last summer.

Lucus Hall
Building Cost: 700,000 • Square Feet: 27,000 • Completion Date: August 2015

The middle school is an interior renovation project. The kitchen will be remodeled with new serving line, ceilings, and new flooring. All classrooms are getting new flooring, ceilings and paint. The science room is being renovated with new lab casework and fixtures being added. All of the bathrooms in the building are being gutted and replaced with upgraded fixtures and finishes.  This building will also receive all new LED fixtures.

Lincoln Elementary
Building Cost: 11.5 Million • Square Feet: 68,000 • Completed: December 2014

This was a ground up project near I-40 for 3rd and 4th grade students. The building was designed to allow for the growing student population in El Reno. The large corridor of the building acts as not only as an artery to allow students to freely move through the building but also as collaboration spaces. The kitchen is full service that allows the capability to host large community functions. The gym butts up to the auditorium allowing the area to house added crowd space. 

Roblyer Middle School
Building Cost: 1.1 Million • Square Feet: 4,000

Roblyer Middle School is close in proximity to Lincoln Elementary. Three classrooms were added to the existing building as well as a secured vestibule in the main entrance. The outdated HVAC equipment in the gym was upgraded and replaced with new.

At A Glance: Recently Awarded Projects

City of Oklahoma City Municipal Courts Building

The City of Oklahoma City Municipal Courts Building will be a new, 3-story, 67,000 square foot facility to replace the existing municipal court. The new $22 Million facility will include courtrooms, administrative offices, judges chambers, and public spaces/waiting areas.

Pi Kappa Alpha’s New “Pike” House

The new “Pike” house will be located on the Oklahoma State University campus in Stillwater, and will replace Pi Kappa Alpha’s existing fraternity house. The build will include dormitory-style housing, club room and meeting spaces, dining facilities, and other commons areas. The project will be between $7 and $8 Million with construction beginning in Summer 2015.

CMSWillowbrook Work Anniversaries & Birthdays for May 2015

Work Anniversaries for May 2015

Allen Neal, May 1 – 36 Years
Dale Smith, May 2 – 8 Years
Scott Bryden, May 7 – 3 Years
Jan Dunkin, May 10 – 20 Years
James Madison, May 12 – 1 Year
Keaton Bushyhead, May 13 – 2 Years
Cary Cox, May 14 – 3 Years
Jeremy Johnson, May 29 – 1 Year

Birthdays for May 2015

Hilary Sexton, May 4
Cory Janvrin, May 5
Chase Setters, May 28

Soldier Creek Named ASA Project of the Year

CMSWillowbrook is pleased to announce that the new Soldier Creek Elementary facility — completed in 2014 for Mid-Del Schools — was recently named as the American Subcontractors Association (ASA) Oklahoma Chapter’s 2015 “Project of the Year.”   The firm provided pre-bond planning, pre-construction and construction phase services for the completion of the new 900-student facility, while LWPB Architecture served as architect for both Soldier Creek Elementary and the identical Midwest City Elementary.

Soldier Creek was selected from a distinguished field of competitors. Selection criteria for ASA’s Project of the Year distinguishment was based on overall difficulty and uniqueness of the project,  successful partnerships created by the project team, sustainability, safety record, and subcontractor recommendation.   

Both Soldier Creek and Midwest City Elementary have received previous construction and design accolades including as AGC’s prestigious “Build Oklahoma” award for 2014, Outstanding Project Award from Learning By Design, and Outstanding Design Award by American School & University Magazine.

CMSWillowbrook staff included Angelo Bradford, Project Manager; Ray Trammel and Larry Hudson, Project Superintendents; Justin Lockwood, Project Engineer; Matt Wilcox, Project Accountant, and Tara Hamby, on-site administrator. Lead architects on the project were Lisa Chronister, AIA and Jeff Wegener, AIA of LWPB.

CMSWillowbrook would like to extend special appreciation to Dr. Pam Twidwell, Chief Operations Officer of Mid-Del Schools; Dr. Pam Deering, Superintendent, Mike Bryan, Director of Maintenance & Construction of Mid-Del Schools; and Mr. Larry Stephenson, Director of Security and Safety. Their dedication to the planning, design and construction of these facilities has been the benchmark for excellence, and has created a new standard for educational construction management.

Construction Claims Archive: Owner’s payment clause creates ambiguity for Pay-If-Paid

Owner’s payment clause creates
ambiguity for Pay-If-Paid

Int’l Eng’g Svs., Inc. v. Scherer Constr. & Eng’g of Cen. Fla., LLC,
2011 Fla. App. Lexis 16730 (Oct. 21, 2011)

A subcontractor prevailed on its claim that a pay-if- paid contract clause was ambiguous and therefore unenforceable.

International Engineering Services, Inc. (IES) was the structural steel sub on a project in Maitland, Florida. Although it completed all its obligations under the subcon- tract, it did not receive payment from the general contractor, Scherer Construction & Engineering (Scherer). Citing the subcontract’s pay-if-paid clauses, Scherer claimed that because it had not received payment from the project owner, its own obligation to pay IES had not yet occurred.

IES argued the subcontract’s two pay-if-paid clauses were ambiguous and that ambiguities with regard to final payment in subcontracts should be interpreted in the sub’s favor. It cited Peacock Construction Co. v. Modern Air Conditioning, Inc., 353 So. 2d 840 (Fla. 1977), where the Florida Supreme Court stated that because small subs could- n’t stay in business otherwise, in most cases, parties do not intend to make the owner’s payment to the contractor a con- dition precedent to the contractor’s duty to pay a sub. To shift the risk of the owner’s payment failure to the sub, the subcontract must unambiguously express that intention.

In fact, the first pay-if-paid clause in the Scherer-IES subcontract, which addressed progress payments, clearly did shift the risk: The provision made all pay- ments to the sub contingent upon the contractor’s receipt of payment from the owner and explicitly stat- ed that the sub “agrees to accept the risk of non-pay- ment if Contractor is not paid progress payments and/or final payment from Owner, for any reason.” When read together with the second clause—which stated that final payment to the sub would be due when final payment had been made by the owner to the contractor—the court found that the parties expressly and unambiguously intended to shift the risk of nonpayment to IES for both progress payments and final payment.

Luckily for IES, the story didn’t end there. The sub- contract incorporated by reference the prime contract, and its terms provided that the owner was not obligated to pay Scherer until Scherer had paid all its subs. The incorpora- tion of these terms made the subcontract’s pay-if-paid clauses ambiguous.

The court looked to an analogous situation examined in OBS Co. v. Pace Construction Corp., 558 So. 2d 404 (Fla. 1990) where the court explained that “in construing risk-shifting provisions, the burden of clear and unequivo- cal expression is on the general contractor” and held the contractor liable for the final payment it owed to the sub. The court in the instant case acted similarly, ruling that the ambiguity must be resolved against Scherer.

Editor’s Note: The court of appeals’ reasoning presents a close issue of contract interpretation. In shorthand, the owner was not obligated to pay the general contractor until the contractor had paid its subs. This language, incorporat- ed into the subcontract, was held to create an ambiguity when compared to the pay-if-paid clause. If this ruling stands, then general contractors may have to rethink their general incorporation by reference clauses in Florida.

Another way to look at the owner’s terms is to concen- trate on the exact language used. The general needed to show to the owner, prior to final payment, that its “indebt- edness” to its subs had been satisfied. A pay-if-paid clause arguably prevents “indebtedness” from arising.

CMSWillowbrook Work Anniversaries & Birthdays for April 2015


Greg Travis, April 3 – 1 Year
Troy York, April 14 – 1 Year
Larry Hudson, April 30 – 3 Years
Barry Reich, April 26 – 5 Years
Bill Jones, April 8 – 16 Years
Bill Foster, April 8 – 16 Years



Matt Ranck, April 1
Summer McClure, April 11
Dwain Schmidt, April 16
James McClain, April 18
Terry Holt, April 19
Antonina Wilterson, April 24
Cindy Stewart, April 26

Customer Service Equals Marketing

It is assumed that most everyone wants to be good at their job. Whether they are working in estimating, project management,  project administration, or contracting- most people want to fulfill their roles and responsibilities to the best of their ability. Although job titles and project roles generally determine what those responsibilities include, it is easy to forget that everyone is responsible for marketing. And if we forget or fail to realize that marketing is everyone’s job, chances are, we aren’t doing a good job at it.

So in what ways does the Superintendent, Project Engineer or Project Accountant provide marketing for CMSWillowbrook? Simple. By providing excellent Customer Service at all times.

Excellent Customer Service should not be limited to just our clients that have hired us, but should be extended to all parties we come in contact with- from the architects and engineers, to the subcontractors and suppliers, to the service vendors we talk to on a daily basis. Each relationship is an opportunity- an opportunity to market CMSWillowbrook  and to make them want to work with CMSWillowbrook over any other construction manager. In our line of work, it’s easy to get sideways with an architect or subcontractor but, even in these cases, we should make customer service a priority. After all, you never know when that person will have a chance to give their opinion on CMSWillowbrook’s performance.

Here are some simple ways to “Market” CMSWillowbrook:

  • Be accessible and responsive: Answer your phone rather than send them to voicemail. Respond to emails in a timely fashion.
  • Be helpful: Problems will arise. Let’s do what we can to resolve - even if it’s not “our problem”.
  • Follow through: If you commit to doing something, do it.
  • Exceed expectations: Put your best effort forward no matter what the task at hand is.
  • Show respect and be polite.

Let's Get Technical- Basics of Post Tension Concrete Beams and Slab

 Tendons can be easily routed around obstructions.

Tendons can be easily routed around obstructions.

Post-Tensioning Construction Basics

Construction of post-tensioned slabs on grade is very similar to using reinforcing steel, except for the tensioning step. Cables are arranged as indicated by the engineer and chaired to run through the center of the slab. For residential construction, tendons at 48 inches on center are common. Commercial foundations will have much more steel. 

A post-tensioned concrete slab on grade will typically be 8 inches thick and use 3000 psi concrete. Once the concrete has gained strength to 2000 psi, typically within the 3 to 10 days recommended by PTI, the tendons are stressed.

 Tendon (cable) tails after tensioning. The cables are pulled to 33,000 pounds, resulting in 8 inches of elongation in a 100-foot cable. 

Tendon (cable) tails after tensioning. The cables are pulled to 33,000 pounds, resulting in 8 inches of elongation in a 100-foot cable. 

Tendons today are seven high-strength steel wires wound together and placed inside a plastic duct. At each end a PT anchor is located and these are located in pockets embedded into the slab edge. When the strands are stressed, the wires will stretch—about 4 inches for a 50 foot strand—to apply 33,000 pounds of load. Stressing should only be done by qualified workers. After stressing, the tendon is cut off and the pocket in which the anchors are located is filled with grout to protect them from corrosion.

 Multi-strand ducts forming a concrete beam

Multi-strand ducts forming a concrete beam


Larger structural concrete members may also be post-tensioned, especially in bridges and floors and beams in parking structures. The process is very similar to that used for slabs, except on a bigger scale. One interesting difference is that the tendons will often be "draped" so that they are low at the midpoint of a beam and high at the supports—this places the steel at the point of highest tension where it can keep the concrete held together tightly. With structural members the duct is often grouted full following stressing to bond the strand to the concrete along its entire length—these are called bonded tendons. Unbonded tendons, used in residential slabs, remain free to move within the duct and are protected from corrosion by grease.

PT tendon placement and stressing is usually done by companies with certified workers who specialize in this work.

Decorative Post-Tensioned Concrete

Since PT is simply reinforcement, there really aren't any specific decorative applications related to post tensioning. The advantages of PT as noted in the opening page are the lack of cracking (or at least very narrow cracks) and the ability to span farther. PT slabs on ground can be placed and stamped just like with any other concrete slab. Surfaces can be stained or overlaid. The only concern is to always remember not to cut or drill into post-tensioned concrete slabs, since once a tendon has been cut, it is very difficult to repair. Many post-tensioned slabs will be stamped to alert the owner and any renovation contractors that the slab is post tensioned.

Construction Claims Archive: Sorting out multiple causes of delay


When performance of a construction project is delayed, it is common for the delay to result not from a single, discrete event, but from multiple causes. This makes it difficult to assess or allocate responsibility for the financial consequences of delay.

Delay events are generally categorized as excusable, nonexcusable or compensable. Excusable delay is caused by factors beyond the control and without the fault of either the project owner or the contractor. The contractor is entitled to an extension of time, but not an increase in the contract price. Nonexcusable delay is caused by the fault or performance deficiency of the contractor. The contractor is entitled to neither an extension of time nor an increase in the contract price. Compensable delay is caused by the error or omission of the project owner. The contractor is entitled to both an extension of time and an increase in the contract price.

Critical Path

It is important to note that when one speaks of “delay,” it is delay in the completion of the overall project. In order for project completion to be delayed, a delay event must have an impact on the “critical path” of the schedule. The critical path is that sequence of interdependent tasks that creates the shortest timeline between notice-to-proceed and substantial completion. Other tasks can be delayed or resequenced without affecting overall project completion. Tasks on the schedule’s critical path cannot.

When a contractor claimed that a series of owner acts and omissions delayed project completion by 272 days, the contractor’s bar chart schedule failed to show that any of the affected work was on the schedule’s critical path. The contractor was not entitled to any compensation for the delay. Mega Construction Co., Inc. v. United States, 29 Fed.Cl. 396 (1993); CCM February 1994, p. 8.

Similarly, a contractor sought to reverse a termination for default by showing that it fell behind schedule due to excusable delay. The contractor was unsuccessful, however, because it was unable to establish that the delay was on the critical path of the schedule. Morrison Knudsen Corp. v. Fireman’s Fund Insurance Co., 175 F.3d 1221 (10th Cir. 1999); CCM September 1999, p. 3.

It should be noted that when a project owner grants an extension of time, it creates a presumption that the delay in question was on the critical path of the schedule. Otherwise, why would the project completion deadline be extended? Appeal of Gottfried Corp., ASBCA No. 51041 (September 14, 1998); CCM November 1998, p. 4.

Concurrent Delay

Concurrent delay occurs when the results of two separate delay events overlap. If an excusable or compensable delay occurs concurrently with a nonexcusable delay, the delay is treated as nonexcusable. The contractor would not have been able to work in any event, as a result of its own fault, so it should not receive an extension of time or a price increase. If an excusable delay occurs concurrently with a compensable delay, the delay will be treated as excusable. The contractor would have been unable to work notwithstanding the owner’s fault and should therefore receive only an extension of time, not a price increase.

Project owners frequently assert concurrent delay as an affirmative defense to a contractor claim for more time and/or money. When a contractor submits a claim for a price increase due to owner-caused delay, the owner responds that the delay was concurrent with a contractor caused delay. A compensable delay concurrent with a nonexcusable delay results in a nonexcusable delay, so the contractor is not entitled to a price increase or an extension of time.

In one case, the government changed the requirements for a materially handling control system, causing a delay in obtaining equipment. But when the contractor submitted a claim for delay damages, the government showed that the contractor was behind schedule in constructing the space to house the equipment and would not have been able to install the equipment notwithstanding the government-caused delay. Appeal of Beckman Construction Co., ASBCA No. 24725 (February 8, 1983); CCM May 1983, p. 5.

On another project, inaccurate government drawings delayed one aspect of the work for six weeks. The government was able to prove, however, that late delivery by one of the contractor’s key suppliers would have prevented the contractor from performing that work anyway. Appeal of Cline Construction Co., ASBCA No. 28600 (August 23, 1984); CCM November 1984, p. 6. Similarly, a government delay in issuing a necessary change order brought work to a standstill. But the government was able to show that the contractor would have been unable to perform due to a problem with a supplier. Appeal of Rivera Contracting, ASBCA No. 25888 (April 30, 1985); CCM August 1985, p. 6.

In another case, the government failed to obtain necessary construction easements in a timely manner. The contractor’s claim for delay damages was denied, however, because during the entire period of impaired site access, the contractor had not submitted an acceptable proposal for an excavation support system. And the contractor was not entitled to work without an approved system. Appeal of Volpe-Head, Joint Venture, ENG BCA No. 4726 (July 14, 1989); CCM August 1985, p. 6.

Project owners also use concurrent contractor-caused delay as an affirmative defense to contractor claims for an extension of time. In one case, the government assessed liquidated damages for late completion. The contractor claimed it had been entitled to an extension of the performance period due to government delay in finalizing the terms of a contract modification. The government rebutted this claim, however, by showing that the contractor’s problems with a supplier were concurrent with the government-caused delay. The contractor was not entitled to an extension of time. Appeal of Hood Plumbing, AGBCA No. 84-181-1 (October 28, 1987); CCM January 1988, p. 6.

It should be emphasized that when analyzing concurrent delay situations, one must pay attention to the critical path of the schedule. If contractor-caused delay that is off the critical path occurs concurrently with owner-caused delay that is on the critical path, the contractor can still recover for the owner-caused delay. The performance of the critical sequence of tasks would have been extended by the owner’s delay regardless of the contractor-caused delay. Wilner v. United States, 23 Cl.Ct. 241 (1991); CCM October 1991, p. 3.

Discrete Delay

Sometimes it is possible to identify a period of delay that resulted from a single, discrete event and segregate that delay from other periods of concurrent delay. In one case, design flaws forced the government to stop work on one portion of the project. Problems developed later with the performance of the contractor’s masonry subcontractor. The initial period of suspended work was compensable, owner-caused delay. But once the masonry problem became concurrent, the delay became nonexcusable. Toombs & Company v. United States, 4 Cl.Ct. 535 (1984); CCM July 1984, p. 2.

In another case, the government issued ten change orders that extended the necessary performance period by 153 days. During the performance of this work, however, the contractor suffered two delays on the schedule’s critical path: a 37-day strike delay and a 70-day delay caused by the contractor itself. The contractor recovered extended field overhead for only 46 days of the extended performance period. The concurrent delays of 37 and 70 days were subtracted. Appeal of B. D. Collins Construction Co., ASBCA No. 42662 (December 17, 1991); CCM March 1992, p. 4.

The government’s failure on one project to provide horizontal control points resulted in compensable delay. But when high river water made work impossible, an excusable delay became concurrent with the compensable delay. The contractor recovered additional compensation and an extension of time for the initial period of delay, but only an extension of time for the period after the water came up. Appeal of Harvey Honore Construction Co., Inc., ASBCA No. 47087 (September 27, 1994); CCM December 1994, p. 4.

In another case, the government failed to establish control points for the location of bridge footings, resulting in compensable delay. But the period of compensable delay ceased when it became concurrent with contractor-caused delay. The contractor did not have rebar cages assembled and would not been able to pour the footings in any event. Appeal of Tri-West Contractors, Inc., AGBCA No. 95-200-1 (December 3, 1996); CCM February 1997, p. 4.

Similarly, the government provided necessary drawings 43 days behind schedule. But the contractor was not allowed to commence work until its safety plan had been approved. The contractor’s late submittal of the plan resulted in approval 20 days after the government’s drawings had been due. The first 20 days of concurrent delay were nonexcusable. The subsequent 23 days of delay, when the contractor was ready and able to perform, were compensable. Appeal of Cape Romain Contractors, Inc., ASBCA No. 50557 (December 15, 1999); CCM February 2000, p. 5.

Intertwined Delay

Sometimes multiple delay events are so intertwined that it is impossible for a court or administrative board to segregate periods of excusable, nonexcusable, compensable, and even concurrent delay. Each party has contributed to the delay and it is impossible to determine individual causation or to allocate responsibility. In these cases, neither party may hold the other responsible for the delay.

In one case, the government was unreasonably slow in responding to the contractor’s shop drawing submittals. But the contractor’s submittals had been vague and incomplete. It was impossible to apportion responsibility for the delay, so neither party could recover. “When delays result from a combination of causes and both parties are at fault to such extent that it is not possible to determine the degree of guilt of each, the government loses its right to assess liquidated damages and the contractor loses the right to collect delay damages.” Appeal of J.B.L. Construction Co., Inc., VABCA No. 1799 (November 7, 1985); CCM January 1986, p. 5

Similarly, a project bogged down when a contractor encountered differing site conditions and was also forced to perform remedial work in order to bring the work into compliance with the specifications. It was impossible to distinguish or allocate the delay impact of the two events, so the government was denied recovery of liquidated damages and the contractor was denied recovery of delay damages. Appeal of Coffey Construction Co., Inc., VABCA No. 3361 (February 11, 1993); CCM April 1993, p. 4.

A delay caused by a government design flaw was intertwined with delay caused by the contractor’s steel fabricator. Allocation of responsibility was impossible. Again, the government could not assess liquidated damages and the contractor could not recover for the cost of the delay. Appeal of C. G. Norton Co., Inc., ENG BCA No. 5182 (January 19, 1988); CCM May 1988, p. 6.

The government delivered faulty, government-furnished equipment to a project. The resulting delay was compounded by, and intertwined with, delay caused by the contractor’s slow electrical work. The government could not withhold liquidated damages and the contractor could not recover delay costs. “The Board leaves the parties where it found them.” Appeal of Gulf Construction Group, Inc., ENG BCA No. 5961 (October 13, 1993); CCM January 1994, p. 5.

And finally, an asbestos abatement contractor encountered asbestos fireproofing overspray on ductwork and piping. Neither the contractor nor the project owner, the U.S. Postal Service, had been aware of the condition. Much of the abatement work had been subcontracted. The subcontractor understaffed the job and failed to adhere to the established schedule. The contractor completed the project late and the Postal Service withheld liquidated damages. The Board ruled, however, that it was impossible to separate the delay caused by the overspray problem from the delay caused by the subcontractor problem. The compensable delay could not be segregated from the nonexcusable delay, so neither party could recover. The Postal Service could not assess liquidated damages and the contractor could not recover delay costs. Appeal of Karchner Environmental, Inc., PSBCA No. 4085 (March 13, 2000); CCM May 2000, p. 4.

Architectural Terms "spandrel". (More than just spandrel glass!)

spandrel, less often spandril or splaundrel, is the space between two arches or between an arch and a rectangular enclosure.


There are four or five accepted and cognate meanings of spandrel in architectural and art history, mostly relating to the space between a curved figure and a rectangular boundary - such as the space between the curve of an arch and a rectilinear bounding moulding, or the wallspace bounded by adjacent arches in an arcade and the stringcourse or moulding above them, or the space between the central medallion of a carpet and its rectangular corners, or the space between the circular face of a clock and the corners of the square revealed by its hood. Also included is the space under a flight of stairs, if it is not occupied by another flight of stairs. This is a common location to find storage space in residential structures.


In a building with more than one floor, the term spandrel is also used to indicate the space between the top of the window in one story and the sill of the window in the story above. The term is typically employed when there is a sculpted panel or other decorative element in this space, or when the space between the windows is filled with opaque or translucent glass, in this case called spandrel glass. In concrete or steel construction, an exterior beam extending from column to column usually carrying an exterior wall load is known as a spandrel beam.[1]


Construction Claims Archives: Managers can be liable for Contractor responsibilities


All Metals Fabricating, Inc. v. Foster General Contracting, Inc.,
2011 Tex. App. Lexis 1283
(Feb. 23, 2011)

A contractor couldn’t duck responsibility for poor workmanship by claiming it was only performing the less accountable job of a construction manager.

All Metals Fabricating, Inc. (All Metals) sued Foster General Contracting, Inc. (Foster) for contract breach and breach of implied warranty after foundation movement rendered unstable a building Foster constructed for All Metals’ metal fabrication facility in Allen, Texas. All Metals claimed that the property’s settlement and heaving was the result of Foster’s failure to complete the pre-construction dirt and fill work in a workmanlike manner (i.e. by one who has the necessary knowledge, training and experience). Foster challenged the suit, claiming All Metals was neither a party nor a third-party beneficiary to the contract and that, as con- struction manager, Foster didn’t have such a high standard of workmanlike behavior to live up to.

The project contract identified the “construction manager” as Foster, the “project” as All Metals, and the “owner” as BEBDT Realty, Ltd. (BEBDT). Thus, Foster alleged that BEBDT (though it didn’t sign the contract) was a party to the contract, not All Metals.

All Metals’ president testified that he had hired Foster for the project and identified the contract as “the agreement upon which Foster undertook to construct the Building.” He claimed All Metals performed under the contract by paying for the construction. The president claimed he had signed the contract, but he could not locate a copy with his signature. The president also testified about contract performance and the construction defects discovered. Because both BEBDT and All Metals suffered damages due to the defects, the two parties agreed to assign all of BEBDT’s claims arising out of the construction to All Metals, he stated.

The appellate court found the above evidence sufficient to question whether there was a contract and whether All Metals was a party to it.

Definition of an architect/contractor

Foster also argued that it didn’t breach any duty of a “construction manager.” It claimed its duties under the contract were not the full duties of a “general contractor”, and it pointed to “an irreconcilable conflict” in the contract language regarding the standard of care required. The contract incorporated a standard agreement between owner and construction manager where that manager is also the constructor (SFA). Foster claimed the SFA set Foster’s standard of care at “reasonable skill and judgment” and “best efforts.” The contract also included AIA A201, “General Conditions of the Contract for Construction,” but Foster argued that any higher standard of care outlined there was inconsistent with the SFA and that the SFA governed.

All Metals countered that Foster acted as both the archi- tect and the contractor; a plain reading of the contract supported this point. The SFA noted that “references to word architect refers to construction manager” and “the term ‘Contractor’ as used in AIA Document A201 shall mean the Construction Manager.” AIA A201 bestowed responsibility on the “Contractor” for: controlling construction methods, sequences and procedures; acts and omission of its employ- ees and subcontractors; and “inspection of portions of work already performed to determine that such portions are in proper condition to receive subsequent Work.” Finally, AIA A201 set forth a warranty under which the “Contractor” warranted that the work would be free from defects.

Reading the contract as a whole, the appellate court found that Foster not only had duties of a construction manager but also those of a contractor and architect, including responsibility for the work. The court disagreed about the “irreconcilable conflict” since Foster could perform both its construction manager duties (using reasonable skill/judgment and best efforts) as well as its contractor/architect duties, consistent with the express contract terms.

Thus, the court ruled that All Metals had raised a genuine issue of material fact whether Foster breached its contractual duties and whether the breach caused All Metals’ damages.

Editor’s Note: The parties’ agreement made Foster both construction manager and general contractor. This arrangement is not unusual. However, the construction management agreement was modified with the ambiguous language that “references to word architect refers to construction manager.” It appears that Foster argued ambiguity only, instead of offering a reasonable interpretation for this added clause. The court, however, could not ignore the language, which led to an unpleasant result for the contractor.

Standard AIA contracts (as used in this case) give the project architect responsibilities for work suspensions, change order review, disputes resolution between owner and contractor, and even termination (see the following story, for example). Giving the construction manager this kind of authority over its own work seems unreasonable (aside from the fact that, in this case, the construction manager was not a licensed architect).

CMSWillowbrook Birthdays & Work Anniversaries for January 2015


John Morrison, January 2: 1 Year
James McClain, January 6: 1 Year
Cris Callins, January 10: 15 Years
Rick Watts, January 12: 6 Years
Cassidy Skitt, January 13: 1 Year
Sara Krawtzow, January 15: 1 Year
Kip McDonald, January 17: 21 Years
Frank LeForce, January 20: 9 Years


Tracy Conrad, January 12
Tyler Cotner, January 23
Jaylee Klempa, January 26
Ron Jones, January 27
Tara Hamby, January 28
Chris Ball, January 29

Architectural Terms- Architrave

An architrave (/ˈɑrkɨtreɪv/; from Italianarchitrave, also called an epistyle; from Greek ἐπίστυλον epistylon "door frame") is the lintel or beam that rests on the capitals of the columns. It is an architectural element in Classical architecture.

The word architrave is also used to refer more generally to a style of mouldings(or other elements) framing the top of a door, window or other rectangular opening, where the horizontal "head" casing extends across the tops of the vertical side casings where the elements join (creating a butt joint, as opposed to a miter joint).



What was up with the humidity this summer?

By Randy Peoples, M/E/P Coordinator

Most people have no idea how critical humidity is to our comfort level. There’s a large list of variables that make humidity either not a factor or not acceptable. For years I have used the following phrase to describe humidity, ‘You can be in a 90* room with 5% humidity and a slight breeze and feel fairly comfortable, but you can also be in a 65* room with 85-90% humidity and stick to everything you touch’. You may be cool, but are still miserable.

I will begin with an explanation of  the 2 most commonly used terms:

Humidity is the amount of water vapor in the air. Higher humidity reduces the effectivness  of sweat in cooling the body by reducing the rate of evaporation of moisture from the skin. This effect is calculated in the heat index we hear about in the weather forecast.

Dew Point Temperature is the temperature at which the air can no longer hold all of the water vapor and some of the vapor must condense into liquid water. This temperature is always at the current temperature or below. Sometimes your iced tea glass sweats and sometimes it doesn’t.

That said, the worst combination for human comfort is a high dewpoint (65 or above) combined with a high RH. If the dewpoint is above 65, generally it will feel uncomfortable. Comparitively, the optimum combination for human comfort is a dewpoint of about 60 and a RH between 50-70% (this would put the temperature at about 75*).

Our bodies begin to sweat in response to a rise in our core body temperature as opposed to a rise in our skin temperature. Our brain regulates our body temperature by evaporative cooling, which is sweating. Humans have an average of 2-4 million sweat glands. The amount we sweat can be 27-47 ounces per hour during exercise, or daily 2.3 ounces up to 270 ounces average. When the humidity is high, our sweat doesn’t evaporate into the air as well making it harder for the body to cool. Air movement does help but only because it is giving just a tiny bit more evaporative cooling as opposed to no cooling whatsoever.  

Comparitivly, the only sweat glands dogs have are around their feet. They cool by panting which evaporates the saliva cooling the tounge, and the deep breathing evaporates moisture on the surface of their lungs cooling from the inside. Yep, that is good to know!

The 2 most commonly used mechanicisms of cooling used in the US are evaporative cooling and mechanical cooling. Evaporative cooling has been around in one form or another for thousands of years. Mechanical air conditioning was patented by Willis Carrier in 1902 and has evolved ever since. Carrier found that his cooling machine was also able to remove moisture from the air, solving a problem he had with printing operations at his job in Buffalo, New York.

Evaporative cooling is still heavily used primarily in the desert regions of the country and works very well but only when the humidity is low. Phoenix has a typical summer humidity of 3-7% which is ideal for swamp coolers. I would say roughly half of the homes there still use swamp coolers, until the humidity gets too high, then they switch to the mechanical cooling until the humidity drops back down later in the summer.

The information below is accurate as of the first of November this year showing what you already know; it is the most humid in the mornings, without rainfall. With rainfall, the entire game changes.

The humidity is lowest during the later part of the day, typically in the afternoon due to the temperature raising which makes the air expand. You have the same amount of water vapor in the air, but with more air that moisture spreads out more resulting in lower humidity readings.

This past summer, from what I’ve been told, we saw record high humidity in most of the state. CMSWillowbrook had numerous calls from current and previous customers asking if their systems were working properly because their comfort level was unacceptable. I personally worked for months with the EOR on Pioneer Library to determine the cause of their excessive humidity and to find resolution. Below are findings and changes that we made to help reduce the problems. It was not a single point issue but a group of minor adjustments which helped to ease the complaints.

Some of their interior humidity (Relative Humidity) readings were in the mid 50% range all the way up to mid 80% range at most any time during the day, but highest in the mornings. Paper throughout the building was curling with copier paper miss-feeding and their large format plotter paper being ruined. Book page corners would swell and magazines looked weeks old the first day on the shelf.

The owner bought 7-8 hygrometers (humidity meters) and took several readings throughout the day compiling lists that they would send to me every couple of days. This gave us a clear precise picture of the moisture in the building and finally gave us indication when the humidity finally started to drop.

Heath McGee with Allen Consulting (EOR), Yarbrough and Sons and I first found that the approved thermostats from Trane were insufficient and did nothing except to turn on/off the heating and cooling. They had no fan control and the outside air was controlled only from a setpoint on the controller in the rooftop unit. We replaced those limited thermostats with digital setback thermostats which did have control of the outside air damper. We found that at night the units would run the blower non-stop while still bringing in the outside air. With a lower cooling load (compressors running less)the fans would load up the building with humidity overnight then not be able to remove in the following day causing the cycle to repeat. We programmed the fans to be off when not cooling and the outside air closed. At night the fans would turn on only to maintain the setpoint temperature, but brought in no outside air. This alone cut the humidity in the building down to the low 60% range.

We as well found that the occupants would turn down the temperature thinking this would provide more comfort. As I said above, this gave them the cool/clammy feeling. Cold air doesn’t give up moisture as well as warm air. Turning the temp down reduced the ability to remove moisture as easily.

We also found that none of the filters in the entire building had been changed in nearly the entire year since C of O. I arranged a quote from Yarbrough for annual maintenance which they accepted. The EOR found that one return transfer opening above ceiling had not been provided. Once the opening was cut the airflow increased. All of the individually simple and small changes combined made all the difference. If the building controls not had been cut out we could have done this virtually for no cost with exception of the filters.

In summation, the best possible situation is to have the lowest humidity possible for cooling and add (if necessary) humidity during heating. Moderate your temperature settings to make the units run as much as possible while not allowing the temperature to drop too low.

For our projects, be aware of the sequence of operations in the mechanical design documents. This tells you what happens during which time of the day. If you see that the blowers never shut off and outside air is introduced 24/7, ask why. This will eventually become a problem. Never-please never, VE out building controls, because you will have a very limited ability to modify the HVAC system globally afterwards. Yes, it adds money to the bids but will nearly always be less than trying to fix problems after.

CMS has determined that we will try as best possible to not VE out the capacity to remove excessive humidity in the mechanical equipment. Once this capability is removed from the equipment you have severely limited your options to control high humidity if and when complaints start coming in. On the Pioneer Library project the cost to add in the high humidity package back in (which was omitted by a single sentence in the specifications) was equal to the cost of new units+ approx. $2,500.00 per unit. Had this capability not been removed the upfront add would have been roughly $10k. After CMS and the A/E spent time and resources not to mention the added thermostats, the $10k would have been a wash.

As a reminder, I am nearly always available to help by phone with any MEP problems or questions and can be on site with a little notice. As my schedule permits I will be visiting most of the projects routinely to provide any input and QA/QC walk through, along with punch lists of items I see that should be resolved prior to A/E/Owner punch lists.

Construction Claims Archive: Design did not provide adequate space


Appeal of M. A. Mortenson Company

ASBCA No. 53146 (January 7, 2005)

plan set

The Armed Services Board of Contract Appeals has ruled that when a government design did not provide adequate space to accommodate the specified work, the government had to compensate the contractor for devising a solution. The effort was not included in the contractor’s “coordination” responsibilities.

The Army Corps of Engineers awarded a contract to the M. A. Mortenson Company for construction of a medical facility at Elmendorf Air Force Base in Alaska. The drawings depicted ductwork for the heating and air conditioning system running above a ceiling.

During construction, Mortenson discovered that there was not enough clearance between the ceiling and the bottom of steel beams above the ceiling to accommodate ductwork of the specified size. Mortenson proposed, and the government approved, a rerouting of the ductwork by a less direct route. The government refused to pay for the additional effort, however, contending it was part of the contractor’s responsibility for coordinating shop drawings and the work of the trade contractors. The Board rejected this argument.

“A government design that does not provide adequate space to accommodate work required to be accomplished within that space, regardless of any amount of coordination efforts by the contractor, is defective...This claim does not involve work that could have been avoided by timely recognition of the clearance problems. Rather, the claim arises from extra work that could not have been avoided by additional coordination.”

CMSWillowbrook Work Anniversaries & Birthdays for December 2014


Dwain Schmidt, December 16: 15 Years
Linda Ball, December 8: 3 Years
Adam Garrett, December 9: 1 Year


Jesse Guerrero, December 3
Jeff McClure, December 4
Jeremy Johnson, December 9
Meleah Wesnidge, December 11
Scott Bryden, December 14
Roy Little, December 19
Teresa Green, December 29

Charitable Giving- the Willow Program

During this season of giving its only appropriate to remind everyone of the company's charitable giving program.  As a long time Oklahoma-­‐based company, CMSWillowbrook has a social responsibility to increase our positive community impact and use our resources to improve the health and wellness of the surrounding environment.  

CMSWillowbrook’s Charitable Donation program will allow employees to contribute to a charity or non-­‐profit organization of their choice through a combination of the two available match programs with a maximum of $500 per employee per year total. 

The plan outline is available on box/public add and read/employee handbook

or by the link below: