CM 4211 Exam 3 T/F
T
"Force account" is another name for the "cost of work" method of resolving a claim
T
"He said she said" is an example of hearsay
T
"ORD" stands for "Owner Responsible Delay"
• All of the above are true.
17. Why may a Contractor be entitled to payment for extra costs suffered because of an Owner-caused delay when, in spite of the delay, the Contractor finished the contract on or before the contractually stipulated date? • The Contractor has the implied right to finish the work faster than the contract requires. • An Owner-caused delay prevents the Contractor from finishing on his schedule. • The delay may cause the Contractor to incur additional costs to finish on his schedule. • All of the above are true. • None of the above are true.
• All of the above.
18. Why should a Contractor notify an Owner of a delay (excusable or compensable)? • To give the Owner a chance to make a decision about how to remedy the problem. • To start the delay time for compensation purposes. • You should always try to keep the Owner informed about the project. • All of the above. • A and B.
• Documentation of the Amount of the Bid
2. A field quality control program involves all of the following, except one. Which one? • Inspection • Testing • Documentation of the Quality of Materials • Documentation of the Workmanship • Documentation of the Amount of the Bid
• Grant a time extension in a timely fashion.
21. What is the Owner's duty when a Contractor presents a properly supported and justified claim for an extension of time? • Deny it until after completion of the delay. • Grant a time extension in a timely fashion. • Present the Contractor with written reasons why the extension was denied. • Request additional information from the Contractor. • None of the above.
• It is the forced completion of the contract work in a shorter period than should have been allowed by the issuance of a warranted time extension.
23. What is constructive acceleration? • It is acceleration of the constructive element of the project. • It is the forced completion of the contract work in a shorter period than should have been allowed by the issuance of a warranted time extension. • It is acceleration by the Contractor to finish the contract on time. • It is acceleration ordered by the Owner together with adjustments of time. • None of the above.
• Failure to have a liquidated damages clause.
24. Which of the following is NOT one of the four elements necessary to prove constructive acceleration? • Contractor's entitlement to a time extension. • Failure of the Owner to issue a timely extension of time. • Failure to have a liquidated damages clause. • Contractors completion of contract before what should have been the adjusted completion date. • Contractor's proof of extra costs.
• The interpretation of the Owner's Representative
25. Which of the following is not a manifestation of intent in a contract interpretation? • Express contract provisions • The interpretation of the Owner's Representative • Customs or trade practices • Course of dealing • Course of performance
• Put it in writing
28. What is the cardinal rule of documentation and records? • Root for St. Louis • Read the contract • Put it in writing • Submit payment requests timely • Pay all Subcontractors and material suppliers timely
• Contemporaneous written records
29. What is documentation? • A recitation of the project by the Owner • A summary of the project by the Contractor • Contemporaneous written records • The contract • All of the above
• Owner commitment to quality
3. All of the following are basic elements of Total Quality Management (TQM), except one. Which one? • Owner commitment to quality • Company-wide dedication to continuous improvement • Company-wide participation • Customer focus • Training and education of the entire project team
• A, B, and C
30. Which of the following is a typical job record? • Minutes of a Meeting • Project Diary • Supplier Invoice • A, B, and C • A and B
• Identification of the Owne
31. Which one of the following is not an element of the various project documents? • Describe and/or identify • Establish a date of record • Identification of the Owner • State a basis of belief • Notify that a dispute exists
• All of the above are true
32. Which of the following is NOT true regarding why a Contractor should submit proposals for a change in contract time or price before the filing of a claim? • To comply with an Owner's request for a proposal in response to a change order • To request a change order when a differing site condition is found • To notify the Owner of a constructive change • A causal event is found that the Contractor thinks is compensable • All of the above are true
• Notice Requirements
33. What is the most important "red flag" provision regarding contract claims? • Entitlement Element • Quantum Element • Notice Requirements • Claim Processing Procedure • None of the Above
• Determination by the Owner's Representative
34. Which of the following is NOT a prescribed procedure for determination of adjustments of contract price and time? • Use of lump sum prices or unit prices in the contract bid schedule applicable to the original contract work • Mutual acceptance of a new lump sum price or unit prices • Use "cost of work" method: from the actual costs from mutually accepted job records, plus a fee to cover Contractor's indirect costs and profit • Determination by the Owner's Representative • None of the above
• Compare work in impacted area with identical work in an area that is not impacted
35. What is a "measured mile" analysis? • Compare impacted work with identical work in different areas of the project • Compare work in impacted area with identical work in an area that is not impacted • Compare work in impacted area with similar projects previously done with the same Owner • Compare impacted work with the estimates by the Contractor and Architect • None of the above
• A state lawsuit that does not provide a resolution
36. Which one of the following will not get you into a federal court? • An important legal question • A state lawsuit that does not provide a resolution • Diversity of citizenship • A lawsuit against the federal government • All of the above will get you into a federal court
• Litigation
37. Which one of the following is not an alternative dispute resolution method? • Litigation • Arbitration • Mediation • Mini-Trial • Dispute Review Boards
• It is a breach of contract for him to finish late.
39. A Contractor is working on a number of projects at the same time. He chooses to complete a particular project late and suffer the liquidated damages so that he can complete other projects timely. Which of the following statements is true? • It is unethical for him to deliberately finish a project late. • It is a breach of contract for him to finish late. • Damages will be doubled for deliberately finishing late. • Actual damages and not liquidated damages will be the measure for deliberately finishing late. • All of the above statements are false.
• All of the above are questions to ask.
4. Which one of the following is NOT one of the questions to ask regarding the contract change procedure? • Will the Owner have the unilateral right to make changes? • Will the Contractor be compelled to carry out the changes made by the Owner? • Will the Contractor be entitled to payment for additional costs incurred to make the changes? • All of the above are questions to ask. • None of the above are questions to ask.
• The prime Contractor on the project
5. Which one of the following is NOT one of the items considered when defining the "general scope of the work?" • The size of the project • The prime Contractor on the project • The type of construction work • The intended purpose contemplated when the contract was signed • All of the above are considerations
• When the Owner has previously given such an order and paid for it
6. Under what circumstance will a contractor be entitled to pay for work done via a verbal change order when the contract contains a "no pay without signed change order" provision? • Never • When the Owner has previously given such an order and paid for it • When the Owner personally gives the order • When the Contractor does changed work that is critical to the project • When the Owner's Representative at the site gives the order
• A needed change warranting a time or cost adjustment not acknowledged as a change by the Owner.
7. What is a constructive change? • When a needed change is made in the construction. • A needed change warranting a time or cost adjustment not acknowledged as a change by the Owner. • A needed change caused by fault of the Contractor. • A needed change acknowledged by the Owner. • None of the above.
T
A "take it or leave it" contract is a contract adhesion
F
A Dispute Review Board will be formed within a reasonable time after a Contractor files a claim against an Owner.
T
A Type I differing site condition can be a difference in an express provision in the contract
T
A Type I differing site condition is one that is different than that indicated in the contract
F, type ll
A Type I differing site condition is one that is not normally encountered during the contracted type of construction
T
A Type II differing site condition can be a difference in an implied provision not in the contract
T
A Type II differing site condition is one not normally encountered in the type of construction used for a project
T
A bench trial is one where the judge decides the law and the facts of the case
F, made on a PUBLIC project
A cardinal change is a violation of the public bid laws if it is made on a private project
F, not within general scope of contract
A cardinal change is one whose size is such that it is clearly within the general scope of the contract
T
A change clause in a construction contract is not an exculpatory clause that excuses the owner for payment of increased amounts caused by a change in the work
T
A change directive is a written document signed by the owner and the architect to the contractor describing the change in work but not the adjustments of time and cost
T
A compensable delay entitles the contractor to a cost and/or time adjustment
T
A construction change is a change to the work ordered by the owner but which the owner feels does not require a change order
F, will be entitled if terminated for convenience
A construction contractor will not be entitled to profit on the unfinished work in a contract if the owner terminates the project for convenience
F, not resolved but TRIGGERED
A construction contractor's claim is resolved by an owner's denial of proposal for a contract change in time or price
T
A constructive change requires prompt notice by the contractor to the owner to allow the contractor to get paid for the change work
F, IS entitled
A contractor is not entitled to overhead and profit if a force account method is used when a change in the work occurs
F, written change is NOT necessary
A court may ignore a contract requirement of a written change order if there are contemporaneous words, acts, or conduct, or earlier patterns of behavior suggesting that a written change is necessary
T
A delay in the work may be caused by owner interference
F
A differing site condition cannot be both a Type I and a Type II condition
F
A differing site condition clause is an exculpatory clause
F, does not relieve
A differing site condition clause relieves the contractor from having to do a pre-bid site inspection
T
A differing site condition is one of the three main reasons for delays in construction contracting
T
A lawsuit is not one of the alternative dispute resolution methods
T
A letter of transmittal does not require a response
F, Temporarily stop
A suspension of work is an order from the owner to permanently stop performance of all or part of the work
F, can be entire project
A termination of the project by the owner may be only effective as to a part of the project and not the entire project
F
A typical differing site condition provision in a contract requires an adjustment in time and/or money and therefore it is an exculpatory clause.
T
Acceleration is the completion of contract work at a more rapid pace than required by the contract
F, not implied. Must be written
Additional money for a differing site condition is an implied right of the contractor
T
All documentation should answer the questions "when" and "what"
T
An appeal may result in the trial court's judgement being reversed
T
An exculpatory clause in the contract relieving the owner from payment for changes almost never outweighs a differing site conditions clause
T
Arbitration findings can be appealed except in cases of bad faith, exclusion of evidence, or failure to disclose possible prejudice
T
Arbitration is heard by one or more persons knowledgeable in the field being arbitrated
T
Arbitration is less formal than litigation
F, are binding
Arbitration results are not binding on the parties to the arbitration
T
Changes and differing site conditions is a cause for delay or suspension
F, before the ADJUSTED contract deadline
Completion of the work before the original contract deadline is one of the four elements required to prove construction acceleration
T
Constructive acceleration is the forced completion of contract work in a shorter period than should have been allowed by the issuance of a properly supported contract time extension
T
Constructive notice is when the owner is charged with knowledge of a delay even though the construction contractor does not give actual notice of the delay
T
Contra proferentem is only used when all other manifestations of intent have failed to resolve the issue.
F
Contra proferentem is used before review of customs or trade practices.
F
Contra proferentem is used in lieu of course of performance and course of dealing.
F
Contra proferentem is used to interpret separately negotiated provisions outside the contract.
F
Contra proferentem provides that the contract will be interpreted in favor of the drafter of the contract.
T
Course of dealing is determined by how the owner and the construction contractor performed on prior contracts
T
Customs and trade practices are not considered when determining the clarity of the express contract terms
T
Deceleration of the project (the owner ordering a slow down) is a condition subject to the changes clause even though it gives the contractor additional time to do the project
T
Defective plans or specifications is a cause for delay or suspension
F, after the change work is STARTED
Differing site conditions clauses almost always require the constructor to notify the owner in writing of the changed condition after the change work is completed
T
Directed acceleration is when the Owner directs the Contractor to work at a more rapid pace.
T
Diversity is one of the three ways to get into a federal court; "diversity" has to do with the parties being from different states
T
Documentation is another name for well kept job records
T
Documentation is best when it is kept daily
F, is the EXCEPTION
Documentation is the reason for the hearsay rule
T
Failure of the owner to promptly investigate a differing site condition is a breach of contract by the owner
T
Force majeure means a condition beyond the control of a party
F, determined by owner and contractor
Forward pricing is determined by the owner alone as an equitable adjustment of cost when a change in the work occurs
F, not prior. Contractor proceeds with work
If a "no-pay-without-signed-change-order" provision is in a construction contract, there must be a signed change order prior to the change work being done or the contractor has no chance of getting paid
T
If a construction contractor wins his claim, then mutual acceptance of adjustments may be one of the three methods of resolving the claim
T
If a contract has both a differing site condition provision and an exculpatory clause, the courts usually rule that the differing site condition provision prevails.
T
If an owner does not timely respond to a contractor's claim, then he will be deemed to have denied the claim
T
If the Contractor fails to notify the Owner prior to disturbing the differing site condition, the Contractor may still be entitled to adjustments of time and/or money if the Owner had constructive notice of the condition.
T
If the Contractor fails to notify the Owner prior to disturbing the differing site condition, the Contractor may still be entitled to adjustments of time and/or money if the work done by the Contractor does not prejudice the Owner's rights.
F
If the contract has no differing site condition provision, the Contractor has the implied right to adjustments in time and/or money if such a condition is discovered.
T
If the owner's field rep. is not authorized to issue change orders, a contractor who performs such a change may not get paid for the change work
T
If work is delayed by the owner, but the contractor still completes the work within the contract time limits, the contractor may be entitled to a cost adjustment
T
Impact costs are consequential costs not directly related to the work
T
In a letter of notice, a position is taken as well as a basis for believing the position is correct
T
In a mini trial, each party selects a trier and presents the case like a trial
T
In a no-damages for-delay clause, the Contractor is only entitled to a time extension.
F, says owner will not be liable to contractor due to delays
In general, courts will enforce "no-damages-for-delay" clauses if the delay results from active owner interference
T
In order for a claim to be valid, it must be proven that the claimant is entitled to an adjustment and the amount of the adjustment
T
In order to introduce documentation into evidence it cannot have been prepared for the specific purpose of use in litigation
T
In regarding a concurrent Owner-caused delay and Contractor-caused delay, the Owner cannot enforce liquidated damages and the Contractor cannot get delay damages
F, decided by courts
Interpretation of the contract is something that is decided by the owner
F, not common law
Liquidated damages are a common law breach remedy
T
Liquidated damages are an agreed upon amount per day for each day that the contract is finished after the adjusted completion date
T
Liquidated damages are not a penalty
F, ARE important
Manifestations of intent are not important if the express contract terms are unclear
T
Mediation is required as a first step in conflict resolution in the AIA A201 General Conditions.
F, are not binding
Mediation results are binding on the parties to the mediation
T
Mediation results are not admissible in a later litigation
F, DOES
Misrepresentation by the owner does not give the contractor relief in the absence of a differing site conditions clause
T
On change work, the contractor may be entitled to impact costs in addition to proximate costs provided that the contractor can prove such impact costs
T
One of the stumbling blocks to recovery on a differing site conditions claim is the keeping of adequate records to support the damage amount
T
Owner's failure to act promptly during construction is a cause for delay or suspension
F
Owner's failure to sign the contract timely is a cause for delay or suspension
T
Prompt notification by the contractor to the owner of a differing site condition may be waived by the courts if it is determined that the lack of notice did not prejudice the rights of the owner
F, AND included in profit and over head
Proximate costs are those directly related to the work, but never include profit and overhead
T
Reading the contract "as a whole" means that an interpretation must be considered in context
•The contract did not have a differing site condition clause. •Lack of notice by the Contractor to the Owner. •The difference is not material. •The Contractor did not do a proper pre-bid inspection.
Reasons for denying a differing site condition claim
F
Regarding a concurrent Owner-caused delay and Contractor-caused delay, the Owner can enforce delay damages if the Contractor-caused delay results in the project finishing late.
T
Risk can only be mitigated, not eliminated
T
Site availability problems is a cause for delay or suspension
F, determining time-DECREASED EFFICIENCY in work performance
The "measured mile analysis" is the preferred method of determining time-related delays in work performance
F
The Contractor can enforce liquidated damages if the Owner-caused delay results in additional time being needed by the Contractor.
T
The Contractor has a duty to notify the Owner of the differing site conditions before the condition is disturbed.
T
The Owner has a duty to determine if the differing site condition is in fact a different condition warranting adjustments in time and/or money.
T
The Owner has a duty to investigate the differing site condition promptly.
T
The cardinal rule of good contract administration is to put it in writing
F, MAY enforce
The courts may not enforce liquidated damages if they are a reasonable approximation of the actual damages
T
The doctrine of contra proferentem is only considered a last resort
T
The doctrine of contra proferentem states the contract will be construed against the drafter of the document when all other manifestations do not resolve the problem
T
The failure of the owner to timely grant a time extension may result in constructive acceleration
T
The findings of a dispute review board are admissible in a later litigation
T
The findings of a dispute review board are not binding on the parties
T
The force account method of equitable adjustment of cost when a change in the work occurs requires daily records be kept of the change work agreed to by the owner's representative on a daily basis
T
The general scope of the work depends on the size of the project, the type of construction work, and the intended purpose of the project contemplated when the contract is signed
T
The job diary is a routine job record
F
The main reason for an excusable delay is late delivery of materials to the project site
T
The most important provision regarding claims is the notice requirements
F, TIME adjustment
The normal relief for force majeure is a cost adjustment
F, give extension at a reasonable time before completion
The owner has a duty to give a time extension some time before the project is completed when a supported claim is made
F, to CONSTRUCTIVE acceleration
The owner has the implied right to direct acceleration
F, right for an OWNER to REQUIRE
The right for a contractor to voluntarily accelerate work must be included in the contract
T
The two main reason of giving notice to the owner of a delay is to start the delay time period and to give the owner time the opportunity to do something about the delay, if possible
F
The worst way to handle claims is to anticipate them and avoid them
T
The writer of the documentation must have been present when the events in the documentation were recorded and/or in a position to have accurate knowledge of the events in order for the documentation to be introduced into evidence
T
To prove course of dealing necessarily requires parole evidence
T
To support a claim for a time extension, a construction contractor must support the claim by showing the delay was beyond its control and that it consumed time affecting completion of the project
T
Under the federal contract changes clause, the government may make changes to the project without notice to the surety
T
Under the federal contract changes clause, the government may not change the general provisions of the contract, and it also cannot change the general scope of the contract
T
Voluntary acceleration is when a Contractor works at a more rapid pace to get back on or ahead schedule.
• A change that is beyond the scope of the contract
What is a cardinal change? • When the St. Louis manager brings in a relief pitcher • A change in the construction so as not to hurt an endangered bird • A change needed to keep the Contractor from going in the red • A change that is beyond the scope of the contract • A needed change within the scope of the contract
• Customs or trade practices
Which one among the following is the last manifestation of intent to be considered? • Express contract provisions • The interpretation of the Owner's Representative • Customs or trade practices • Course of dealing • Course of performance
• Lateral Pricing
Which one of the following is NOT a method for price adjustments for contract changes? • Forward Pricing • Lateral Pricing • Retrospective Pricing • Force Account • All of the above may be used for price adjustments
• To give the Contractor adjustments for conditions unknown at the beginning of the project
Why do most construction contracts have a differing site conditions clause? • In the event the Contractor did not do a pre-bid site inspection • Because site conditions change during construction • To pay the Contractor for change orders • To give the Contractor adjustments for conditions unknown at the beginning of the project • All of the above
T
Will the owner be compelled to carry out changes made by the contractor is one of the three questions contractor must ask when reviewing the change procedure in a construction contract
T
With a dispute review board, each party selects a member of the board shortly after the contract is signed
• B or C.
You are reviewing your daily diary on a project that was completed three weeks earlier. You realize that you forgot to make an entry on a date one month previous. You should do which one of the following? • Make the entry on the date it happened. • Nothing. • Make the entry on the date you remembered. • B or C. • None of the above.
F
a no-damages for-delay clause does not include Owner-caused delays.
T
a no-damages for-delay clause is usually enforced by the courts unless the Owner deliberately interferes with the Contractor's performance.
F
no-damages for-delay is an exculpatory clause