DBIA EXAM #3 (VERIFIED ANSWERS)

What 3 categories are the Best Practices organized into? 1. Procurement 2. Contracting 3. Execution If these Best Practices are NOT implemented, there is an increased _____ that the project's performance will be _____ and that some or all of the stakeholders will be _____. - probability - compromised - disappointed. _____ and _____ contracts are fundamental to any delivery process. - Fair - Clear Contracting principles apply to contracts of those working within the _____ _____ DB Team This chapter has ___ Best Practices and ___ Implementing Techniques. - 3 - 18 Contracts used on DB projects should be _____, _____, and _____ and should promote the _____ aspects inherent in the DB process. - fair - balanced - clear - collaborative The contract between the _____ and the ______ _____ should address the _____ aspects of the DB process, including expected standards of care for design services. - Owner - Design-Builder - unique The contracts between the _____ _____ and _____ _____ should address the _____ aspects of the DB process. - Design-Builder - Team Members - unique Design-Build Done Right is the _____ of every DBIA certification course! core What are the 4 types of law? 1. Contract Law 2. Tort Law 3. Statutes and regulations 4. Common Law _____ Law is based on the use of precedent. Common Arbitration and mediation results don't provide direct _____. precedent _____: a party offers to contract with one another. Offer _____: a party accepts the other party's offer. Acceptance _____: value exchanged for performance. Consideration _____: the party making the contract must be legally able to do so Capacity _____: the individual forming the contract must have authority to do so Authority What are the 5 requirements for a valid contract? 1. Offer 2. Acceptance 3. Consideration 4. Capacity 5. Authority Offers must demonstrate an expression of _____ to contract on certain terms. willingness The response to an RFP is an example of a(n) _____. Offer What 2 things can nullify an offer? 1. Varying/additional terms 2. Counteroffers Oral contracts can be valid. True or False? True Oral contracts can be valid on what 2 requirements? 1. Material terms of contract are clearly established. 2. Parties demonstrate intention to be bound by those material terms _____ ______ contracting rule makes it very difficult to create an Oral contract. Public Sector _____ _____ _____ mandates that certain types of contracts be written. Statute of Frauds What is an example of a contract that the Statute of Frauds mandates to be written? contracts that are impossible to complete within one year "Where a contract does not fix a definite price, there must be a definite method for _____ it." ascertaining What case is this? - NAVFAC project. - Party's $5.2 million price used by other party in bid, but the project is awarded to other. - Statute of Frauds found applicable. Trident V. Austin (2003) Contracts created by conduct that is contrary to public sector are _____. enforceable or unenforceable? unenforceable What are 2 examples of an unenforceable contract that is contrary to public policy? - Duress - Misrepresentation and Fraud Which of the following terms may be found contrary to public policy? a.) Indemnity b.) Limitations of Liability c.) Advanced waivers of lien rights. d.) No damages for delay. e.) All of the above. e.) All of the above. _____ _____: Means of protecting a party who is reliant on someone's actions. Promissory Estoppel What are 2 common examples of Promissory Estoppel? 1. Subcontractor bids 2. Teaming relationships What case is this? - Party sues for lost profits ($3-4 million) - 5th Circuit found material facts in dispute that allowed party to maintain a promissory estoppel theory. Metroplexcore V. Parsons Transportation Group (2014) _____ Damages: Award what was reasonably expected from the contract. Expectation _____ _____: When expectation damages not available, award what party would have had if contract had not existed. Rescission Damages _____ ______ & _____ _____: If contract's subject is unique, a court may order that the breaching party perform its obligations under that contract (specific performance) or stop doing something (injunction). Specific Performance & Injunctive Relief _____ _____: Award of a reasonable sum of money (i.e., "what the claimant deserved") Quantum Meruit Damages cannot be speculative, and must be proven to a _____ degree of certainty. reasonable The contract may NOT impose limitations on what can be claimed. True or False? False - Liquidated damages. - Limitations of liability. - Improper default terminations. - No damages for delay. - Waivers of consequential damages. These are all examples of Contractual _____. Limitations ______ Damages: Arise from the consequences of a breach. Consequential _____ Damages create substantial financial exposure if something goes wrong. Consequential Consequential Damages demonstrates the importance of Contractual ______. Waivers Consequential Damages are distinct from "_____" Damages. Direct Direct Damages or Consequential Damages? "Lost Profit on the project" Direct Damages Direct Damages or Consequential Damages? "Cost or repair the damage to the project." Direct Damages Direct Damages or Consequential Damages? "Rental of temporary generator to meet power needs on project" Direct Damages Direct Damages or Consequential Damages? "Lost profits on other projects" Consequential Damages Direct Damages or Consequential Damages? "Loss of rental income from tenants." Consequential Damages Direct Damages or Consequential Damages? "Damages to customers." Consequential Damages Direct Damages or Consequential Damages? "Rental of temporary generator to provide power for the Owner to meet its customer's needs." Consequential Damages _____ Application: Owner needs to pay once for items negligently omitted. Practical Limitations of liability can impact recovery. True or False? True Even if professional negligence is proven, damages recoverable are impacted by the _____ _____. Betterment Theory Ordinary _____ _____ _____: Exercise of that skill and judgement which can reasonably be expected from similarly situated professionals. Standard of Care Expert testimony is needed to prove the Standard of Care "_____" baseline What are 2 examples of privity of contract needed to sue a party for economic losses? 1. delay damages 2. Cost to correct defects Application is determined on a state-by-state basis (not valid in all states) True or False? True The Economic Loss Doctrine is applicable to personal injury. True or False. False The _____ has a professional standard of care. Designer The _____ has the duty to build what is in the plans and specs. Builder The _____ assumes risk of non-negligent design defects when it has separate contracts with the builder and designer. Owner _____ _____: Provides the following implied warranties-- Plans and specs furnished are accurate and are suitable for intended purpose. Spearin Doctrine The Spearin Doctrine is judicially recognized at both state and federal level. True or False? True What case is this? - State argued that Spearin did not apply to CMAR Contract. - Appellate court found that Spearin did apply to CMAR. Coughlin Electrical Contractors V. Gilbane (2015) ______ _____: Owner causes performance of work beyond scope of contract but does not recognize contractor's entitlement to a change order. Constructive Changes Owner causes performance of work beyond _____ _____ _____ but does not recognize contractor's entitlement to a change order. Scope of Contract Which Constructive Changes Step is this? "Contractor has time or cost impact for something it did not anticipate." Step 1 Which Constructive Changes Step is this? "Files request for change order." Step 2 Which Constructive Changes Step is this? "Request is denied by owner." Step 3 Which Constructive Changes Step is this? "Contractor follows process in Changes Clause to submit its claim for relief." Step 4 - defective specifications (Spearin). - Disputes over contract interpretation. - Superior knowledge. - Breach of implied duties of good faith, fair dealing, and cooperation. - Constructive acceleration. These are all types of _____ ______ Constructive Changes Resolution in disputes over contract interpretation typically involves looking at the requirement through the eyes of a(n) _____ _____. reasonable bidder. Technical requirements are written perfectly and can be subject to different meanings to different people. True or False? False "never written perfectly" _____ _____ _____: what the parties do during the performance of this contract. a.) Course of Performance b.) Course of Conduct c.) Terms of Art a.) Course of Performance _____ _____ _____: what the parties do during the performance of other similar contracts. a.) Course of Performance b.) Course of Conduct c.) Terms of Art b.) Course of Conduct _____ _____ _____: the use of a word in a specific industry. a.) Course of Performance b.) Course of Conduct c.) Terms of Art c.) Terms of Art - Failing to manage multiple prime contractors. - Overzealous inspections. - Using undue leverage in a negotiation position. These are examples of breaches of _____ _____. Implied Duties Government must disclose otherwise unavailable information that is vital to contract performance. This is what? superior knowledge _____ _____ risk is one of the major risks on projects. Site Condition