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DESPITE AN INCREASING NUMBER OF GLOOMY ECONOMIC PREDICTIONS… I still feel confident that 2001 and 2002 will be robust economic times for the construction industry in the State of Florida. I am particularly optimistic about the financial prospects for the Southeast (Gold Coast) portion of Florida. Although all of Florida should be relatively strong in the next couple of years, we could see some slow down in the Central and Northeastern part of the State.

From a macro economic outlook, in the fourth quarter of 2000, the economists were looking for and hoping for what they call a “soft landing” for the economy. That is interpreted to mean a slow down in the growth of our GNP to approximately 2.5%. Recently, the macro economists have been talking about a “hard landing” which is interpreted to mean the possibility of zero growth in our GNP. Neither situation would cause us to be concerned about the “R-word” (recession).

You can be certain that President Bush’s first order of business will be to prime the economy through tax cuts and hopefully through Federal spending, whether in the form of grants to the states or in project spending. Either of these two scenarios will probably benefit the construction industry.

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To prepare those of us who will not be able to endure either a soft or hard landing of the economy, this issue’s quotes will be on “poverty”. Ring Lardner said: “I’ve known what it is to be hungry, but I always went right to a restaurant.” Don Herold made the observation that: “Poverty must have many satisfactions, else there would not be so many poor people.” George Bernard Shaw said: “Very few people can afford to be poor.”

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FINALLY IT’S OVER… and George W. Bush has been sworn in as our 43rd President. It is impossible for me to disguise the fact that I am a right-wing radical, but even putting that aside, I take great exception to the liberal point of view that the American people did not elect George W. Bush, but actually elected Al Gore. It should be noted that:

• Bush won 2,434 counties in the United States and Gore won 677.
• The population of the counties won by Bush was 143,000,000 and the population of the counties won by Gore was 127,000,000.
• The square miles of country won by Bush was 2,427,000 and the square miles won by Gore was 580,000.
• Bush won 29 states and Gore won 19.
• Of even greater interest to me was the fact that the average murder per 100,000 residents in the counties won by Bush was 0.1 whereas the average murder per 100,000 residents in counties won by Gore was 13.2. Interestingly, the researchers found that gun ownership in the counties won by Bush is much higher than the gun ownership in the counties won by Gore.

It is over and in my opinion the best man was sworn in as President on January 20, 2001.

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“Poverty is an anomaly to rich people; it is difficult to make out why people who want dinner do not ring the bell.” - Walter Bagehot

“Place the real disgrace of poverty not in owning to the fact but in declining to struggle against it.” - Thucydides (471-400 b.c.)

”The poor you always have with you.” - Jesus (John 12:8)

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IT IS POSSIBLE TO GET DAMAGES FOR OWNER’S DELAY… even if the contract bars them. Suppose an owner delays the project by giving you defective drawings or by not giving you access to the work site. As result, the project takes six months longer than you anticipate and you get hit with an extra six month’s worth of expenses as well as price increases in labor and supplies that you didn’t count on when you bid on that project. In reviewing your contract, you note that there is a clause known as a “No-Damages-for-Delay Clause”. The purpose of this clause is to release the owner from any liability for damages due to a delay caused by the owner, its agents or other contractors in its employ.

This does not necessarily mean you won’t be able to be compensated for owner-caused delays. There are certain circumstances that may give you grounds to collect delay damages even though your contract includes a No-Damage-for-Delays Clause. The following represents some, but certainly not all of the circumstances that may allow you to collect damages from the owner:

1. Delay caused by an owner’s active interference. Courts frequently don’t allow an owner who actively interferes in a contractor’s work to enforce a No-Damage-for-Delays Clause. The owner has an implied obligation not to interfere with your work.
2. Delay caused by an owner’s bad faith. All contracts include an implied obligation of good faith and fair dealing. If you can prove that the owner, by acting in bad faith, caused the delays a court probably will not enforce the clause. An owner acts in bad faith when it makes intentional misrepresentations or acts maliciously towards you.
3. Delay due to owner’s abandonment of project. A court won’t enforce a No-Damage-for Delays Clause if the owner delays a project for so long that it amounts to abandonment of the project.
4. Delay resulting from owner’s contract violations. If the delays result from an owner’s violation of its contract obligations, the owner can’t enforce the clause.

Examples of each of the above contractual violations by the owner could be given if space allowed. My best advice would obviously be to contact your attorney if you have questions or circumstances relating to the No-Damage-for-Delay Clause. Incidentally, there are four states that have laws that invalidate No-Damage-for-Delay Clauses in construction contracts with public owners such as government agencies. These states are California, Colorado, Massachusetts and Oregon. Massachusetts law actually requires that the contracting agency give a contractor costs for delays longer than 15 days. The four states previously named would not allow clauses in construction contracts with a public owner, but the best state in the Union to work as it relates to the No-Damage-for-Delay Clauses, would be Washington which invalidates this clause in both private and public contracts. If the lobbyists for the AGC, ABC, ECA, etc. in the State of Florida were looking for a good cause, invalidating the No-Damage-for-Delay Clauses in both public and private work in the State of Florida would certainly be a worthy project. I have seen these clauses do serious damage, financially, to a number of contractors over the years.

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