Contracting 101

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Explain It Simply

"If you can't explain it simply, you don't understand it well enough." - Albert Einstein

The building industry is terrible at explaining how it does what it does. And this is coming from a guy who has a Bachelor of Science in Construction Management! It’s so bad that I was once working on a construction litigation matter and needed the most basic of organizational charts to explain to a jury the most common roles, relationships, and responsibilities of the various parties involved in a typical construction project; but there was none to be found. I would have loved to have had a reliable source like American Institute of Constructors, The Construction Specifications Institute, the American Institute of Architects, or some similar organization to rely on, to tell my story to the jury. I searched and searched and there was just nothing simple enough to use for a group of people with no construction experience. Everything was overly complex, attempting to account for every possibility. So I locked myself in my office alone one weekend with a pile of flip-chart paper and made iteration after iteration, and finally I nailed it. That was more than a decade ago. Since that time almost every trial or arbitration I have testified in has included some version of this org chart to explain the roles of the parties to one another and to the physical work.

The Contracting 101 Framework

  1. An Owner wants a project, similar to anyone who wants to buy something, such as a car, but with a construction project the product being purchased is not something that is already built.
  2. The Owner goes to an Architect (or in some cases a non-architect designer) to translate his/her desires into a set of documents. This process is intended to “define” what the Owner wants to buy (often from a General Contractor).
  3. The Architect works with Specialty (Sub) Designers such as structural engineers, mechanical engineers and interior designers to further detail the Plans and Specifications (also referred to as Construction Documents) because buildings are so complex that many specialized professionals are required.
  4. The Plans and Specifications are sent to qualified and interested General Contractors, who submit proposals to the Owner. Ultimately the Owner and a General Contractor compose an Agreement (or Contract).
  5. An Agreement for construction is simply a promise by the Contractor to deliver what is described in the Plans, Specifications, and other contract documents, and a promise by the Owner to pay for it.
  6. The Agreement refers to the Plans & Specifications and should include clear definition of the Scope, Budget, and Schedule, including at Scope of Work document that includes: Inclusions and Exclusions, Allowances, a provision for handling Change Orders. The Agreement should include a Schedule of Values and Payment Milestones (for management of the Budget). And finally, the Agreement should include a Progress Schedule. 
  7. GCs usually hire specialty trade contractors, commonly referred to as Subcontractors when they are working for a prime (or general) contractor, who are specialists in their respective trades, to help deliver what has been promised in the Agreement. This is, again, because buildings are so complex that many specialized professionals are required.
  8. There is nothing in this scheme that prohibits the Owner from directly hiring Specialty/Trade Contractors (that are called Subcontractors if they are working for a General Contractor) for work that is not in the Scope of Work in the Agreement with the GC. In this situation they are Prime Trade Contractors.
  9. Most of the Subcontractors, and Prime Trade Contractors, have their own suppliers and subcontractors: these are called Sub-Subcontractors. (See diagram below)
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Using the Contracting 101 Framework

So the point of the Contracting 101 Framework is to foster understanding of the project at hand. Begin by printing the diagrams above and writing the names of the project players over the generic descriptions. Virtually every project will be different than the Contracting 101 Framework, so you might have to compose multiple iterations, moving the boxes around to fit the peculiarities of your project. I often do this in my office where we have multiple whiteboards and I move back and forth from one to the next until I get my organizational chart to accurately reflect the complexity of the roles and relationships of the current situation. The "compare and contrast," from the simple "Contracting 101 Framework," to the complexity of the real world, is often incredibly instructive. 

Sample Project: Custom Single Family Residence

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This project was a train wreck. 

The Architecture firm and the General Contracting firm were both owned by the same person, but the Owner did not know that (which is unethical and illegal without following strict consent laws). By the time the Owner tried to get control of the project, the two firms had taken $3.5 million dollars to turn a $2.9 million home (initial purchase cost) into a lumber pile. The contract called for distinct design phases but the design was never finished, and it called for the Architect to serve as the Construction Administrator (Owner Representative), but that was a sham since the entities are so closely related and have employees who work for both businesses. The construction work, based on an incomplete design, was executed negligently at inflated prices. The construction work onsite should have been halted long before it was. When the Owners finally asked for a legitimate halt to the construction work, to sort our a plan to go forward, both entities terminated the agreements (using the same lawyer) and engaged in a scorched-earth litigation policy that ensured the maximum economic damage possible from this terrible situation.

A Sensible List

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The rumors are true. I am a crazy person. Anyone who knows our company knows that we are REALLY into training. And this training module, called "A Sensible List," has been included in more of our training programs than any other. BY FAR! And the reason is (as Charles Kettering said): "A problem well stated is a problem half-solved." And our job, above all else, is to solve problems. 

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So yes; I am a crazy person. Any time someone brings me a collection of data that is not first organized into A Sensible List (or some sensible order), it makes me feel sad. So sad that people who won't stop bringing me "project piles" rather than sensible project files, are invited to work somewhere else, where they might better thrive. 

But people protest: "'Sensible' is SO subjective!" 

No it's not.

Organizing our world "sensibly" has been obvious since the dawn of civilization, and ultimately research psychologists figured out why. When you get bored or need a sleep aid, read "The Magical Number Seven, Plus or Minus Two." This is one of the most highly cited papers in psychology. It was published in 1956 and argues that the number of objects an average human can hold in working memory is 7 ± 2. This is why SO many things are arranged in groups of 5-9. It's not a miracle. It's just how humans think. 

So over time the folks who manage big, complex projects made some rules about making lists that conform with the way the human mind works, and they called their Sensible List a "Work Breakdown Structure." I highly recommend you study the subject, even further than I will go in this post. 

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As it says on the slide above, I highly recommend you Google (search) each of these Work Breakdown Structure (WBS) terms. Until then, take my word for the following: 

  1. A Work Breakdown Structure (WBS) is a decomposition of a project into smaller components.

  2. 100% Rule: This means your list needs to add up to 100% of whatever it's summarizing. Not 99%. Not 101%.

  3. The magical number seven, plus or minus two: In general, each level of the WBS should be no more than 9 items long. In construction cost estimating, this rule gets broken. It's OK in this circumstance because most of the audience for construction cost estimates are people who deal with them often and can conceptualize these longer lists due to this familiarity. But any time we can't get the list on a single sheet of paper, we should usually "chunk" it down to size. At PFCS we usually arrange our WBSs using numbers at Level 1 (L1) and capital letters (A, B, C...) at Level 2 (L2). That way, if you get past Z at L2, you know you're in trouble and should consider re-thinking your list. 

  4. Mutually Exclusive Elements: In addition to the 100% rule, it's important that there is no overlap in scope definition between different elements of a work breakdown structure because this ambiguity could result in duplicated work. But sometimes an element of your list could fall naturally in two locations on the WBS, so from time to time we have a "zero value" item that refers to another element, just so everyone is clear. An example of this might be if we decided to sort documents first by "Who," then chronologically, where the name of the person or organization (Who) = L1 and the individual documents, that are listed in order by date, are each a L2 item (a common organizational scheme). If a document in this collection was authored by two parties we might list that document in both places (under both names), but refer from one of those items to the other so that we don't need to duplicate the document. 

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So the only thing I don't like about the diagram above is that they call the entire bike "WBS Level 1". Bit it's NOT broken down yet! So I call their "WBS Level 2," a Level-1 WBS because it's the first level of breakdown. It's a sensible 100% list. That is: A Sensible List. 

The PFCS Standard WBS numbering-lettering scheme for this example would be: 

1. Frame Set

A. Frame

B. Handlebar

C. Fork

D. Seat

2. Crank Set

A... 

The numbering scheme used in the slide above is appropriate for highly technical documents, like codes and standards. But our work at PFCS needs to be consumed and understood by smart but NOT technical people. Literally, our job is to help our clients make smart, informed decisions about buildings and property, and we know that if they don't understand our work, then we have not served them well. My experience is that some people get confused when you refer to section 1403.2.2.4. So we prefer an approach that is as simple as possible (but no simpler), conforming with the way humans best understand things. 

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If you've studied project management then you know "The Golden Triangle" includes the project "Scope, Budget, and Schedule." These are the big three aspects of getting a complex project planned and done.

In addition, if we layout our WBS just right, then we can manage all three aspects in lock-step, as depicted (in a simplified way) below. 

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“No plan can be considered complete - or satisfactory - until it produces measurable outcomes and incorporates mechanisms that allow mid-course corrections based on results.” - Judith Rodin

That is my favorite management quote (well... I have lots of favorite quotes :). It's so true! Most people's plans are more "hopes" than plans. I have worked on many projects in litigation, where the owners had no idea how far over budget they were until they had already paid MORE than 100% of the original contract price, because the plan did not "incorporates mechanisms that allow mid-course corrections based on results." I had a mentor who used to say to me "Pete: Hope is not a strategy." I would always retort: Yes it is! It's just a terrible one!! I recommend you NOT use hope as a strategy in your planning. 

As you can see from the slide above, with the right WBS (Sensible List) we can summarize the scope, budget and schedule, then we can compare actual performance compared to the plan throughout the life of the project, so that we can "incorporate mechanisms that allow mid-course corrections based on results." This is the promise of professional project management. And the foundation of project management is a well designed WBS. And a well designed WBS is the most Sensible List. 

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In a construction project it's not only the scope, budget, and schedule that should be connected using A Sensible List (WBS). Most construction documents will either be organized or filed using the Sensible List (WBS). Often this is simply by Who, then When; that is, by party (name) and then chronologically (by date). That would be a 2-Level WBS (who-when). Other schemes go another level deep. 

An example 3-Level WBS for Construction Document Organization: 

1. Name 1

A. Contract Documents

1. YEAR-MO-DY Document 1

2. YEAR-MO-DY Document 2

3. YEAR-MO-DY Document 3 

B. RFIs and Change Orders

C. All Other

D. Correspondence

1. YEAR-MO-DY Document 1

2. YEAR-MO-DY Document 2

2. Name 2

By the way: If we adhere to this scheme electronically, with individual electronic files organized with the date first and the format of the date YEAR-MO-DY, or 2017-10-20 for today's date, then we always know the most current version of any electronic file is the one at the bottom. Any other scheme adds complexity, which adds the likelihood of error. Even if the file has lots of different files, you can easily scan from the bottom to find the most recent version of a file (Ex. 2017-10-20 Change Order 17). So I highly recommend this scheme. 

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And the same goes for construction claim and litigation matters: A Sensible List often makes the difference between order and chaos. 

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I said above that people protest that "'Sensible' is SO subjective!" And that I totally disagree. This is not to say there is only one way to be "sensible." There are lots of ways to be sensible... And even more ways to be NOT sensible. So suffice it to say: Use one of the sensible ways. Think about how your Sensible List might get used before you begin, and work backward. Planning backward from a successful end is the essence of excellent planning. 

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When PFCS is making lists of building elements, we use Uniformat, unless there is a compelling reason to use some other scheme *. "UniFormat is a standard for classifying building specifications, cost estimating, and cost analysis in the U.S. and Canada. The elements are major components common to most buildings. The system can be used to provide consistency in the economic evaluation of building projects. It was developed through an industry and government consensus and has been widely accepted as an ASTM standard."

Lots of construction professionals use CSI Masterformat because most specifications manuals from architects are often written using this scheme, but since PFCS does so much building performance analysis, and we store building data (forever, for free) Uniformat is a better standard for us. 

* In claims and litigation, we need to be very careful about making our Sensible List(s) because so much of the work is about comparing and contrasting. If we are on the plaintiff side, then all the other parties will likely use our list to respond to our claims. When we are on the defense side, and someone else has created a reasonably sensible list, then it's usually better to adopt their's, rather than re-inventing the wheel. Unfortunately, the work of others is sometimes so poor that we have to create our own organizational scheme. But we only do this as a last resort. 

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Unifromat's Level-1 structure is a simple, Sensible List that categorizes all aspects of any building project, using capitol letters at Level 1 (because there are WAY more than 26 Level 2 options, and they wisely switch from letters to numbers when going from L1 to L2): 

A. Substructure

B. Superstructure

C. Interiors

D. Services

E. Equipment & Furnishings

F. Special Construction & Demolition

G. Building Site work

H. Other (This is added by PFCS because lots of our projects are in litigation and the issues don't always fit into Uniformat's building element codes. 

The actual building elements nest comfortably at Level 2 under the respective L1 categories. 

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In lots of what we do, we explain things by "working from large to small." I have explained this hundreds of times by asking people if they ever used Google Earth, where you start with an image of the entire Earth. You type in your address and the globe turns to orient toward your hemisphere, then it starts moving in toward your continent, then the your country, then your state, county, city, neighborhood, and ultimately your rooftop. And in going from large to small way we have been oriented perfectly to where in the world we are. First explain the forest we are in, then talk about trees. 

So buildings are, for the sake of consistency in naming, composed of "Elements" like foundations, walls and roofs. A "masonry wall" is a particular type of building element (at Level 2 in Uniformat). The bricks and mortar are "Components" of that building element, that would be at Level 3 or deeper. 

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This project was a Property Condition Assessment for twin high-rise condominiums, so virtually all of the building elements were addressed in our report. 

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This project was a construction defect litigation matter with discrete problems and repairs for all of those issues. 

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Even our Core Values are laid out in a 2-Level Work Breakdown structure! 

And from there, so, so many of the things we do have to be arranged in a sensible list: 

Contractor Pre-qualification Checklist

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Introduction

Background checks are necessary. There is a reason you are screened before buying a car, a gun, or getting hired for a prestigious new job. Pre-qualifying contractors and subcontractors is one of the most important steps in reducing risk associated with construction projects. A system needs to be put in place along the lines of what is expected of a contractor in order to make sure they can handle the work you want them to do.

At PFCS we have found that pre-qualifying contractors is an important step in our own unique system for hiring. In a blog post called "Avoid Bad Contractors: Basic Due Diligence in Hiring," Pete Fowler outlined 17 crucial steps in order to hire a good contractor. Pre-qualification falls on number 8. It is such an important step that it has seven sub-steps for ensuring the pre-qualification process is done thoroughly.

The following is a checklist compiled by FIRST, VERIFY that details the important steps in pre-qualifying a contractor.

The Checklist

Business

  • Business Attributes
  • Corporate Officers and/or Shareholders/Partners/Proprietor
  • Parent, Affiliate, and/or Subsidiary Companies
  • Employees
  • Operations
  • Equipment
  • Litigation/Bankruptcy/Judgments

Insurance

  • Contact for Insurance Information
  • Insurance Information
  • Surety Relations

Financial

  • Job History
  • Largest Contracts
  • Capacity
  • Anticipated Annual Volume

References

  • Banking Relations
  • List three (3) major suppliers
  • List three (3) General Contractors for whom you have worked in the last three (3) years

Bidding Interests

  • Add Bidding Interests

Safety Statistics

  • Experience Modification Rating
  • Workers Compensation
  • OSHA Recordkeeping
  • Safety Performance History
  • Regulatory

Safety Programs & Procedures

  • Written Safety and Health Program
  • Written Safety Program Administrative Procedures
  • Site-Specific Safety Plan
  • Policies
  • Substance Abuse Policy
  • Respiratory Protection
  • Management
  • Utilize Services
  • Medical
  • Benefits
  • Accident Investigation Procedure
  • Safety Inspections
  • PPE, Equipment Inspections, Audits
  • Meetings
  • Subcontractors
  • Safety Training/Orientation
  • Training Records
  • Safety Orientation Program for Newly Hired or Promoted Foremen/Supervisors
  • OSHA Construction Safety Courses
  • Craft Training
  • Comprehension

Supporting Documents

  • Certificate of Insurance
  • OSHA 300 log
  • NCCI Letter (EMR)
  • Contractor General Conditions Agreement
  • Other Desired Documents  

We've Moved!

Introduction

For the past 15 years, Pete Fowler Construction Services' San Clemente office has been located in a small business park on Calle Negocio. We've been thinking about moving spaces for years, and the time has finally come.

With the recent expansion of the marketing team and purchase of Marc C. Viau & Associates, our little office was getting a bit crammed. Last time Pete was in, we had to set up a make-shift desk in the corner (see photo). So began our hunt for the perfect office space.

After searching high and low, we are eager to announce that on Monday (8/28), we will be moving to an office space a whopping 0.2 miles down the road from the current location to 905 Calle Amanecer, San Clemente, CA.

The outside of our new San Clemente office building!

The outside of our new San Clemente office building!

While we're sad to leave the space PFCS has called "home" for more than a decade... We aren't really all that torn up about it. How could we be?! Our new office is beautiful and has room for us all.

In the past week, we've had movers and painters come through to help make the space feel like a true PFCS workplace. On Friday, our San Clemente employees will pack up their desks and return to the new office on Monday morning. How exciting!

 

The foyer in our new building

The foyer in our new building

Photo Update - 9/6/2017

We've been in our new office for a little over a week now and we are in love. Here are some photos of the PFCS team enjoying the work space:

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Now that's what we call a conference room!

Now that's what we call a conference room!

Clean, new workspaces are exciting

Clean, new workspaces are exciting

Mike V. and Orchid getting a feel for Mike's new office

Mike V. and Orchid getting a feel for Mike's new office

Pete in his new space

Pete in his new space

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Farewell old office, you will not be missed!

Farewell old office, you will not be missed!

Additional Information

New Address: 905 Calle Amanecer San Clemente, California 92673

Article of the Week: "Turning Negative Thinkers Into Positive Ones"

Introduction

In a recent article from The New York Times, Personal Health columnist, Jane Brody, explores the advantages of positive thinking – even if only for a few moments a day.

Summary

Barbara Fredrickson is a psychologist at the University of North Carolina. She has done extensive research on fostering positive emotions and came up with a theory called "micro-moments of positivity." These micro-moments refer to events from everyday life. Fredrickson's research shows that people who are able to generate positive thoughts and feelings towards everyday tasks are more likely to succeed than those who do not.

Negative thoughts, feelings, and emotions are normal phenomenon of life. However, Fredrickson's research proves that "chronically viewing the glass as half-empty is detrimental both mentally and physically and inhibits one’s ability to bounce back from life’s inevitable stresses." The amygdala is the part of the brain which processes negative emotions. Another researcher and neuroscientist, Dr. Richard J. Davidson found that people who recover slowly from negative emotions such as fear, anxiety, or threat are more likely to develop health problems.

Both Dr. Fredrickson and Dr. Davidson found that practicing mindful meditation with a focus on kindness and compassion generate changes in the brain that increase positive thoughts, emotions, and behaviors.

Aside from mindful meditation, Dr. Fredrickson and other professionals recommend trying a few of the following things to promote a more positive mind:

  • Do good things for people around you - even if it's as small as opening the door for someone!
  • Appreciate the world around you. It's the little things that make life great. Take a detour to watch the sunset or admire the trees swaying in the wind.
  • Develop and bolster relationships. Surrounding yourself with friends and family increases self-esteem.
  • Establish goals that can be accomplished. Being un-realistic about goals can be a downer when they don't come to fruition. Aim high, but keep yourself grounded.
  • Learn something new. Again, be realistic! Don't frustrate yourself by trying something you're going to fail at - ease into it. The more you learn, the more you want to learn.
  • Choose to accept yourself, flaws and all. Narrow in on your positive attributes. The rest are pesky details.
  • Practice resilience. Use your negative encounters as learning experience for how to better handle your emotions in the future: "When life gives you lemons, make lemonade."
  • Practice mindfulness. "Let go of things you can’t control and focus on the here-and-now. Consider taking a course in insight meditation.

Why We Care

Here at PFCS, we strive to keep a positive environment. To maintain an upbeat atmosphere, it is important that each of us exercise a positive attitude. The more positive feelings and emotions harvested in the workplace, the more productive we can be! The list above is a nice, concise summary of best practices we can use both in our work and in our personal lives. 

Article of the Week: "For Want of a Comma, We Have This Case"

Introduction

Earlier this month, the FindLaw blog posted an article highlighting the importance of grammar and editing, especially in the legal field.

Summary

This article discusses the state of Maine's case of O'Connor v. Oakhurt Dairy. In this case, dairy delivery drivers were fighting their employers for overtime pay. However, Maine's law requiring employers to pay workers time and a half after 40 hours a week exempts a variety of jobs in the food production industry.

The law excludes "canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution." This case was brought to court to settle the dispute over a misinterpretation due to the lack of an oxford comma. The dairy drivers argued that the grammatical format of the law required they be paid overtime, while the Oakhurt Dairy strongly disagreed.

Both parties referred to the Cannons of Construction in their defense, but there was not enough evidence to fully support either side. In the end, the courts settled in favor of the drivers because of the unclear interpretation of the law.

Why We Care

"Things should be made as simple as possible, but no simpler." - Albert Einstein

Clarity of written communication is critical. Construction is not theoretically difficult to understand; it's not much more than sticks and stones stacked neatly. If we, as contractors, can't communicate our message clearly to someone who does not have much background in construction, it is a problem with the communicator (us), not the communicatee.

Hollywood U2 at The Canyon - 3/18/2017

Introduction

On Friday, March 18th, PFCS and friends gathered at The Canyon in Agoura Hills for the World's Greatest U2 Cover Band, Hollywood U2.

Here are some highlights from the night:

The Canyon is a spacious, yet intimate venue. We heard one of the original players from U2 was in the audience with us!

The Canyon is a spacious, yet intimate venue. We heard one of the original players from U2 was in the audience with us!

Hollywood Bono totally tore up the stage! Did you know he's preformed alongside the real Bono?

Hollywood Bono totally tore up the stage! Did you know he's preformed alongside the real Bono?

So much fun with Pete Fowler and friends!

So much fun with Pete Fowler and friends!

Making Drive Time Productive: Getting Your iPhone to Speak to You

Introduction

Are you getting tired of listening to the same silly pop songs on the radio while you're stuck in traffic on your way to and from work? So were we! Ever since one of our employees discovered the "Speak Screen" feature on the iPhone, sitting in traffic has never been the same.

To make the best of time spent commuting (and to keep yourself from having to look down at your phone while driving!), have your iPhone read out loud to you. By enabling the setting called "Speak Screen," your phone will read the words on your device out loud.

Speak Screen

Follow these step-by-step instructions to enable your iPhone to read aloud to you:


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Step one:

Open the Settings application on your iPhone. It looks like the image on the right.


 

 

 

Step Two:

Under Settings, click General, located at the bottom of the page.

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Step Three:

Under General, click Accessibility, located towards the bottom of the page.

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Step Four:

In the Accessibility folder, click on Speech. It is located in the middle of the page.

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Step Five:

Finally, to get your iPhone to read to you, turn on Speak Screen. All of the settings within the Speech folder will help to adjust the speed and tone of voice your phone will use to speak aloud.

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Final Step

Last, but not least, close out of Settings and navigate to a page with text (ex: a web article, your text messages, etc.). Drag three fingers from the top of your screen and your iPhone will begin to read to you.


Other Applications for the Car

Audible

Audible is an Amazon application that allows you to download and listen to audiobooks, radio and TV programs, and audio editions of newspapers and magazines. To use Audible, make sure you have an active Amazon account. Then, simply download the Audible application to your phone or computer and browse the shop – the first 30 days are FREE!

Pocket (the iPhone App, not your pants)

Pocket is an application that our president, Pete Fowler, swears by. This app was originally intended for desktop computers and went by the name "Read It Later." Once you have downloaded Pocket, it allows you to search for articles across the internet that interest you. The best part is that you can save the articles to read at a later time (hence, Read It Later...) or as we prefer – to listen to later!

Pocket has features to adjust the size of the text for easy reading, but more importantly, it can play the articles aloud for you.

Why We Care

Using your phone and driving is dangerous. Using Speak Screen or applications like Audible or Pocket keep you entertained while your eyes remain on the road. Next time you're in the car and need something to listen to, sign in to PFCS Client Access and tune in to one of our past webinars!

Bill Gates' Favorite Books of 2016

Article of the Week

He's done it again! In a December 2016 posting of Gatesnotes: The Blog of Bill Gates, he personally summarized the six books that he considered the best he read during the year.

One Minute Summary

In the article "My Favorite Books of 2016," Gates claims that although there are more ways to learn today than ever before (ie. online), books are still his favorite way to obtain information about a new topic.

String Theory by David Foster Wallace is a collection of five essays on tennis - however, it is not important to play or watch the sport to find the book interesting. Gates claims, "The late author wielded a pen as skillfully as Roger Federer wields a tennis racket."

Shoe Dog by Phil Knight is a memoir that reflects the trials and tribulations of building a successful business.

The Gene by Siddartha Mukherjee delves into the past, present and future of genome science.

Why We Care

Bill Gates is (A.) one of the richest and most successful men in the world and (B.) known to be a voracious reader. So, when he takes his valuable time to summarize the books he says are the best he read all year, everyone eager to expand their knowledge should sit up and listen. These books touch on "how things work," the physical world, and offer insight into the human condition. These are all things we are interested in.

Resources

Click here to see our post about Bill Gates' Favorite Books of 2015

Video

"National Safety Council 2016: OSHA's Top 10 Violations for 2016"

Article of the Week

As the year comes to an end, we tend to see a lot of "Top ___ of 2016" articles floating around. This week, we are taking a look at the preliminary list of OSHA's Top 10 Violations for 2016. The list consists of violations through September 30, 2016.

One Minute Summary

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1. Fall Protection - While the data shows that 39.9% of deaths in the construction industry are fall-related, this citation remains one of the most common violations year after year. In 2016, there were just under 7,000 violations.

2. Hazard Communications - This year, there were a total of 5,677 hazard communications violations. When two parties work together on a project, it is both parties' responsibilities to ensure worker safety. Violations included inadequate training, outdated data sheets and lack of programming to address hazard chemical exposure.

Scaffolding

Scaffolding

3. Scaffolding - With about 3,900 violations, fall protection plays a large role in scaffolding. The most common violations were improper assembly and insufficient access.

4. Respiratory Protection - OSHA found various instances where companies failed to provide medical evaluations of employees who wore respirators in situations with overexposure to contaminants and  instances where respirators were not property fit-tested. There were a total of 3,585 violations in 2016.

5. Lockout/Tagout - 3,400 citations were given for improper, inconsistent and nonexistent lockout/tagout training procedures.

Powered Industrial Trucks

Powered Industrial Trucks

6. Powered Industrial Trucks - There were about 2,900 instances where trucks were being operated in an unsafe manner, including being driven by uncertified workers.

7. Ladders - Citations were given when ladders were not being used according to design specifications. There were about 2,600 violations in 2016.

8. Machine Guarding - Machine guarding is hazardous and if machinery are not anchored/fixed, it can lead to amputation. There were almost 2,500 violations.

Electrical

Electrical

9. Electrical Wiring - Violations included unsafe substitutes for permanent wiring and dangerous use of extension cords.

10. Electrical, General Requirements - Improper installation of electric equipment was the most common electrical violation of 2016 with 1,700 citations.

Why We Care

PFCS is dedicated to provide an environment that is free of accidents and to ensure that every employee is provided safe and healthful working conditions free from recognized hazards.

Analyzing & Monetizing Construction Claims: Construction Claim Analysis 101

Introduction

PFCS President, Pete Fowler, presented the first webinar of 2017 on January 12 at 10 a.m.

“Analyzing & Monetizing Construction Claims: Construction Analysis 101” is a free webinar that delves into the basics of what we do here at PFCS. This program covers a variety of subjects and could go by many titles:

  • Building Performance Analysis and Budgeting 101
  • Analyzing and Monetizing Construction Defects
  • How Building Owners and Managers Should Decide What Needs Fixin’... and More Important, What Doesn’t
  • Level 1 Analysis
  • Making Smart, Budgeting-Conscious Decisions About Construction

Pete Fowler has been a professional cost estimator for more than 20 years and through this webinar, he will follow up on one of our previous webinars about Building Performance Analysis by discussing how is related to the budgeting process.

Virtually all construction or property-related decisions should be made with costs in mind, but some people are afraid of math. We can help.

Whether you are a lawyer, insurance professional, property owner or manager, you need to be able to focus on the “vital few” issues and ignore the “trivial many.” That means knowing how much things cost; Not to the penny, but rather a reasonable approximation.

The best place to start when working to make smart economic decisions is on the big, expensive issues. You begin by chopping a project into logical parts and estimating the cost of those chunks so you can see both the big and small pictures. The earlier in the process you accomplish this, the better!

Learning Objectives

  • Why decision making about buildings needs to include performance analysis and cost analysis.
  • How to do a “Level 1” performance and cost analysis so you know the big picture early in the process.
  • Review case studies and real world examples of projects related to analysis and monetization of construction claims.

Program Outline

  1. Introduction
  2. A Sensible List
  3. Evaluating & Prioritizing
  4. Analyzing Construction Defects
  5. Budgeting Construction
  6. Roles & Responsibilities
  7. Conclusion

This program is approved for one hour of CLE for attorneys in California and Nevada, pending in Oregon, and pending for insurance adjusters registered with the California and Texas Departments of Insurance.

Finding the Best Social Media Managing Site for Small Businesses

Pete Fowler Construction Services is trying to improve our social media presence by incorporating the use of a social media management tool for the Marketing Team's convenience. As PFCS's Social Media Manager, I spent some time researching the best platform for the company to utilize.

It is important for the company to use a program that is both cost and time-effective and allows some flexibility and creativity with the content of the posts.

After scanning multiple articles, it became clear that Hootsuite is the highest ranked and most popular, overall. Hootsuite is preferred over similar programs because there is a feature that allows the user to interact with their news feeds directly inside of the application.

Throughout my research, I was keeping a close eye on Buffer because it had been recommended to PFCS by another company's Social Media Manager. However, I wasn't consistently seeing Buffer in the top three websites listed in articles, like I was with Hootsuite. The article "15 Tools Every Social Media Manager Should Use" listed Buffer at number six saying, "It's particularly useful for small businesses that don't have the time or resources to update their social media channels regularly, but would still like to maintain a social presence." Upon reading this article, I realized I needed to narrow my search and get a closer look at which site would be best for a small business like PFCS.

After limiting my search, I found that the top three social media management sites for small businesses were consistently Agorapulse, Sprout Social and Buffer. In the cases where Agorapulse and Sprout Social were favored, it is because the two sites allow feed browsing and interaction inside the application. On the other hand,  Buffer's simple intention is to build a social media queue and the user is required to open the specific social media platform to browse and interact with the news feed.

A screenshot of Buffer's Tweet Schedule feature

A screenshot of Buffer's Tweet Schedule feature

Following my research, I decided that Buffer is the best social media management site for PFCS because it allows freedom to customize posts and still set up a consistent queue on all relevant social media forms. I will start using Buffer to manage PFCS's social media and report back in a month!

End of Month Update

After messing around with Buffer and doing further research, I have chosen to accept defeat make the switch to Hootsuite.

Hootsuite is the #1 recommended social media management site for a reason. The "Professional" account package on Hootsuite offers more posts, more account access and better analytics for the same price as Buffer's "Awesome" account package. Sounds like a deal to me!

Berlin at The Coach House

On Friday, December 8th, 2016, PFCS and friends gathered at The Coach House in Orange County to see 80's Synth Electro-Pop band, Berlin.

Here are some highlights from the night:

The Coach House is an awesome, intimate venue with a great atmosphere. Awesome for a group gathering! Teri Nunn is still super talented.

The Coach House is an awesome, intimate venue with a great atmosphere. Awesome for a group gathering! Teri Nunn is still super talented.

Aurora Spine CEO and PFCS friend, Trent Northcutt, with Berlin's drummer, Chris Olivas, before the concert.

Aurora Spine CEO and PFCS friend, Trent Northcutt, with Berlin's drummer, Chris Olivas, before the concert.

The group enjoyed some food and drinks together during the show.

The group enjoyed some food and drinks together during the show.

The group got to meet and talk with Terri Nunn after the show for Trent's birthday. All smiles!

The group got to meet and talk with Terri Nunn after the show for Trent's birthday. All smiles!

Pete was lucky enough to spark up a conversation with Terri after the show!

Pete was lucky enough to spark up a conversation with Terri after the show!

Case Study: Slip & Fall Outside of a Nightclub

The Problem

A man was attending a comedy show at a shopping center in California. After the show ended, he stepped out onto the patio and slipped on a wet metal strip that was the transition between the wood and concrete walking surfaces of the patio, and suffered serious injuries. He alleged that several patrons had slipped and fallen on this metal strip before, also resulting in injuries, and that the Owners of the building had been made aware of this prior to his incident. He also alleged that the Owners and their Property Managers were negligent in their use and maintenance of the building, in that they knew the metal strip on the decking caused an unreasonable risk of harm and despite this knowledge, took no steps to repair, protect against harm, or give adequate warning of the condition.

The Solution

PFCS was hired by the Owners on a tight schedule with depositions coming within two months of retention, so we put our limited time to good use. We conducted a forensic inspection, documenting site conditions with photographs, field notes and diagrams; analyzed the available documents including plans, leases, incident reports, and deposition testimony from various parties; researched and analyzed applicable building codes and standards; and collected climate data for the day of the incident. Based on the totality of our analysis, we drew our conclusions and presented them at deposition:

  1. The pedestrian walkway was not a dangerous condition.
  2. The deck assembly complied with the applicable building code.
  3. The deck assembly was constructed of quality materials, in a workman-like manner, and remained in good condition after almost a decade in service.
  4. The metal transition between the wood and concrete walking surfaces was not a defective condition.
  5. Light rain was recorded on the afternoon and evening of the incident. Dry concrete and dry wood would absorb the precipitation immediately, within a few minutes. There were gaps within the dissimilar material which would facilitate drainage from the flat surface of the metal channel. Capillary action will cause water to run off the edges into the gap.
  6. There was no evidence that the Owners had been informed prior to this litigation that the metal transition between the wood and concrete walking surfaces was the cause of a fall leading to injury.
  7. There was no evidence that the Owners were negligent in their use or maintenance of the exterior walking surfaces generally, nor specifically related to the metal transition between wood and concrete walking surfaces.
  8. The exterior walkway was the location of regular public events with many people safely using the walking surface without incident, and the deck assembly was in service as is for nearly a decade without a similar incident related to the metal transition between the wood and concrete walking surfaces.
  9. The Owners had standard operating procedures in place to warn users of the walking surface that it was slippery when wet.

Ultimately, the case went to trial, and based on our testimony, the Owners received a verdict in their favor.

Case Study: Construction Cost Estimate for Water Damage in Condo

The Problem

This project concerned water-related damages to a unit in a low-rise condominium building in Encino, CA. One morning, a second-floor resident, the Plaintiff, heard noises from upstairs that sounded like someone was working on the plumbing system. That evening, the downstairs neighbor, informed the Plaintiff that water was coming through the ceiling and dripping down the chandelier in the lower unit. The Plaintiff then noticed water gushing from her own sink and spreading into the kitchen, dining and living rooms. The resident on the third floor (Defendant) in the apartment directly above the Plaintiff’s had hired a plumber to clear a clog in the pipes. The plumber used a device that forced highly pressurized water through the pipe which, in turn, caused the Plaintiff’s pipe to burst. After the incident, the Plaintiff hired an “Expert” who estimated the cost of repair for the damages at over $170,000.

The Solution

PFCS was hired by the Defendant to conduct a site inspection at the Plaintiff’s apartment and deliver our own cost-of-repair estimate for the damages observed. During our inspection, we learned that the Plaintiff’s Expert had considerably overestimated the cost of certain items, including cabinets, flooring and content storage. We delivered an inspection summary of the damages caused by the water event and a corresponding estimate totaling around $45,000. The case went to trial and due to our Expert witness testimony, the Plaintiff was only awarded about $46,000 for construction-related damages and another $14,000 for non-construction-related issues. The Plaintiff was awarded a total of $60,000; Over $100,000 less than what was originally proposed. The jury found that our estimate reflected what the Plaintiff had already been paid and would be a sufficient amount to address the damages.

Case Study: Plumbing Leaks in High-Rise Condo

The Problem

This project involved a mixed-use 12-story art building that was built in the early 2000's. The first four levels of the building are a combination of retail and parking, and the upper eight levels are residential units. Beginning in January 2008 and continuing for the next year and a half, leaks from burst pipes in the CPVC plumbing system were discovered in the fourth-floor garage, residential and commercial units. The Owner spent $575,000 repairing the damage, so the subcontractor that installed the CPVC plumbing system in the building was served a "notice of defect". The Owner then retained an Expert who recommended a full water distribution system replacement.

The Solution

PFCS was hired by the plumbing installation company, and applied our Building Performance Analysis (BPA) Process to the problem:

  1. Document & Information Management
  2. Meetings & Interviews with Key People
  3. Building Information Management
  4. Inspection
  5. Analysis
  6. Testing
  7. Estimate
  8. Report / Repair Recommendations

PFCS reviewed the original design documents, product installation manuals, product testing, and required code compliance. Conflicts between drawings, project manuals, product manufacturer literature and code were discovered and then resolved through numerous expert meetings. PFCS also attended testing by a 3rd-party forensics company, and surveyed and mapped out the building plumbing system, with isolated issues noted throughout. A favorable resolution was negotiated between the original subcontractor repair scope and the full system replacement as recommended by the Owner's Expert, with the value of the negotiated repair scope being less than 10% of the system replacement! PFCS was notified afterwards that, "The case has settled, in no small part because of your help."

Case Study: Nightclub Construction Audit

The Problem

A historic 1921 downtown Los Angeles building was converted into a 4-level, above and below-grade nightclub. The repairs and retrofitting of the above-grade structure, as well as the build-out of the nightclub, were paid for by the Tenant. A dispute arose between the Tenant and Owner related to the $3 million cost of the work claimed by the Tenant, who was in bankruptcy, for the retrofit/repair (Owner responsibility) versus the nightclub build-out (Tenant responsibility).

The Solution

PFCS was hired by the Owner to review the project documents and to prepare a report regarding the costs and expenses that could reasonably be attributed to the retrofit of the structure compared to the costs associated with the build-out of the club. PFCS carefully reviewed all of the documents subpoenaed from an accountancy firm, consisting mostly of checks and invoices related to the retrofit process and expenses incurred in updating and refurbishing the nightclub. Following this detailed review, PFCS clearly outlined the costs that were relevant to the nightclub build-out versus the costs associated with the building envelope and structural repairs. PFCS presented the financial analysis in a deposition, which ultimately resulted in a favorable settlement for the Owner.

 

Window & Door Installation

Introduction

On December 8, 2016 at 10 a.m., Alex Prokop presented a FREE webinar called "Window & Door Installation". Window & Door Installation introduces principles of design, construction, and installation of window and door components. Improper installation of windows and doors is one of the leading sources of building performance failures that lead to construction defect litigation.

We will begin by explaining the basics of modern window & door installation techniques, and how variation from these fundamental principles can lead to problems and defects. Next, we will discuss different types of windows and doors, factors that can complicate their installation, the basics of how materials react together, and the damage that these reactions can cause. Finally, we will review the most applicable codes and standards related to window and door installation, performance, testing and evaluation. 

This program is important for architects, attorneys, insurance adjusters, general contractors, trade contractors and building industry professionals because many factors and players must come together to properly execute durable window and door installations.

Learning Objectives

  • Explain the basics of modern window & door installation techniques
  • Review of window & door types
  • Discussion of most commonly alleged construction defects
  • Discussion of the evolution of building codes
  • Review applicable industry and trade standards
  • Examples of how to analyze construction defects
  • Estimating costs for repairing defects
  • Allocating responsibility to applicable partners

Program Outline

  1. Introduction
  2. Window Installation
  3. Common Window Defects
  4. Door Installation
  5. Common Door Defects
  6. Codes & Standards
  7. Conclusion

This program is approved for one hour of CLE for attorneys in California, Nevada and Oregon, and insurance adjusters registered with the California and Texas Departments of Insurance.

50 Coffees

Thinking about making a really big adjustment in your life? Then you owe it to yourself to have coffee with 50 people. In a recent article, Peter Thomson discusses a technique he has used to help him with major life decisions.

Summary

Each time you decide you want to make some sort of major life change, whether it be raising investment for a start up, moving to a new city, or changing careers, you should have coffee with 50 people to get their views on your plans. Setting a precedent of having coffee with 50 people forces you to be clear about your goal, makes it stronger, and makes you commit to the move you want to make. You also will receive great input from smart and interesting people.

Thomson first came across the idea while reading the book, What Colour is Your Parachute?. Although he was not the first to come up with the idea, he realized the hidden insight in it, in that the biggest changes in your life will only happen through the people that you meet and conversations you have. Humans create and convey meaning through stories and conversations. If you change the conversations that you’re a part of, then your life changes automatically.

Now, this isn't supposed to be coffee with 50 total strangers. Most of the people will be friends/acquaintances, but you should also be open to meeting new people. Think one degree of separation. Ask the people you know if they know of anyone interesting you should meet and go from there. Try and find people with different backgrounds, you might meet some great people and make new friends!

The author had 50 coffees when he left law for design. He did it again when he moved to London, and most recently when he published a book. The 50 coffees idea had worked so well for him in the past, that he realized his best ideas came up during heated conversations because people tend to think better when they have an intelligent partner to debate with.

Tips to Make the Most Out of Your Coffees

  • Be intentional and focused
  • Be honest about what you want
  • Don't ask for anything
  • Think ahead
  • Take notes
  • Don't waste people's time
  • Never steal time
  • Pick a good place
  • Make it a good time
  • Be interesting and direct
  • Travel to different places

Why We Care

Here at PFCS, we're always making improvements to our company in order to better serve our clients and the community. We may not always have 50 cups of coffee for every improvement, but we do conduct "team consulting sessions" over coffee with our staff when large improvements are considered. These sessions typically last 10 to 30 minutes or sometimes as long as an hour when several ideas and suggestions are brought into the mix. So, the idea in this article goes hand-in-hand with that thought process.

2016 CLM National Construction Claims Conference

This year, PFCS sponsored the 2016 CLM (Claims & Litigation Management Alliance) National Construction Claims Conference in San Diego, California! Pete Fowler and Mike Villalba were there representing PFCS and the show was a major success!

Summary

From the CLM website:

This September, the CLM will hold the most comprehensive construction claims conference ever. In addition to addressing construction defect claims, conference sessions will also address facets of construction-related claims including construction site accidents/injuries, coverage issues, subcontractor issues, and new technologies. Sessions also will address issues on the national, regional, and state levels.
 
In addition to three days of interactive, educational sessions, conference attendees will have many opportunities to network with other thought-leaders in the construction claims industry.

Where

Manchester Grand Hyatt San Diego
1 Market Place
San Diego, CA 92101

When

September 28 - 30, 2016