School districts are in the business of education not construction.  Nonetheless, in order to fulfill its statutory duties, construction and renovation are inevitable.  What are the practical steps a school district can take to avoid having their construction projects end up in litigation?

While the answer is not a simple one, do not assume everyone is on the same page regarding the construction process.  This is not only from an internal standpoint but also extends to the consultants retained by the school district (architect and construction manager) and the various contractors.  The simple truth of the matter is that for the most part, other than the school district, the goal of the other entities is to make money.  Because of the public bidding requirements which obligate the school district to select the lowest responsible bidder, making the school district happy is usually a collateral matter to the contractor.

Notwithstanding the alignment of the various parties in the construction process, building a relationship and communication are key components to reducing the potential of litigation in construction projects.  Communication should start at the beginning of the process by being clear with your consultants on what goals the school district has with the project, including timing and responsibilities.  There should also be a clear chain of communication in order to maintain a dialogue between the parties.  Most decisions are based on various factors and good communication is the key.

Understanding the cost and scope of the work prior to construction is of major importance.  Communicating this information to the school district’s consultants provides them an understanding of the important issues which in turn allows them to incorporate that information into the construction documents.  Additionally, to the extent that the School District is clear on the scope of the work, there is less likelihood of changes occurring during construction.  Having legal counsel familiar with construction and school law review construction bidding documents prior to bidding is also essential.

For example as of January 1, 2013, all public works contractors and every subcontractor are required to utilize the E-Verify Program operated by the United States Department of Homeland Security.  The EVP system is an internet based system that compares information from an employee’s I-9 form to data with the U.S. Department of Homeland Security and Social Security Administration to confirm employment eligibility.  Also, a public body, which includes school districts, must now, as a precondition to the award of a contract for public work, obtain a completed Public Works Employment Verification Form from the public works contractor.  A public work is defined as the construction, reconstruction, demolition, alteration or repair work other than maintenance work done under contract and paid for in whole or in part out of the funds of a public body when the estimated costs of the total project is in excess of $25,000.00.  The school district’s professionals must be knowledgeable about these and all current statutory requirements governing a school district’s construction project.

Relationship building through communication continues during the construction process.  While there is no sure fire method to avoid claims arising out of the construction process, the single most important issue is again communication.  Keeping track of the construction process and making sure issues, as they arise, are properly documented is paramount.  Do not rely entirely on your consultants’ timely handling of construction issues; be proactive to make sure issues are resolved as quickly as possible.  Delaying resolution of issues not only puts the construction process in suspension but also does not foster a workable relationship between the various parties.

In closing, while there is no checklist to follow to avoid litigation during the construction process, the best methodology is to be prepared and deal with the issues timely and fairly.

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Alfred C. Maiello
Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.