Yes, he actually said that … Marketing Awesomeness!  "Nametag Scott" is an entrepreneur, author, speaker, blogger and consultant.  Here is a short video about how Scott Epstein got into the nametag-writing-speaking-marketing business.

What does Best Practices for Marketing Awesomeness have to do with Best Practices Construction Law?  Not much … yet everything!  Take a minute and watch what Scott has to say about marketing awesomeness: 

http://cionametagtv.cachefly.net/FlowPlayerClassic.swf

Did you hear anything helpful?  While we are traditionally in the business of constructing buildings, homes, infrastructure (… and not client lists or fans or followers …), Scott had some inspiring words:

  • Don’t sell a product … start a movement!
  • Don’t make money … make history!
  • Find your fans (customer), deliver a value, thank them often, sell occasionally!

Whether a construction lawyer, developer, architect, engineer, contractor, supplier, or random Google visitor to this site, we cannot forget the importance of customer service.  Remember the "customer" … the person or company we promised to do something for or provide something to … as we focus on the day’s activities.  Integrity is sure to follow. 

Thanks to Cordell Parvin, a successful-construction-lawyer-turned-lawyer-coach in Dallas, Texas, who recently wrote a post entitled, Thinking Creatively About Your Future.  I first heard about Scott through Cordell!

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[Update: Got a nice note from Scott "Ginsberg, not Epstein" … If he had only put that on his nametag I would have gotten it right! Sorry Scott.]

In case you have not heard, on June 11, 2009, ConsensusDOCS released what is reported to be the first and only standard contract designed specifically for federal government construction projects. The ConsensusDOCS 752-Subcontract for Federal Construction Projects provides all of the necessary terms and conditions essential to comply with the Federal Acquisition Regulation ("FAR"). In addition to being FAR compliant, the ConsensusDOCS 752 includes all of the federally-mandated flow-down provisions. The release is important in light of the federal stimulus funding bill. McGraw-Hill Construction has a good summary of the new contract document here.

According to Tom Kelleher, Senior Partner in Smith, Currie & Hancock LLP and Chair of the national coalition of associations who wrote and endorse the new standard contract, the new "federal subcontract will keep needed construction projects from getting tangled up in red tape.”

Of course, the American Institute of Architects was not totally out of the race. The now discontinued and retired AIA A-201 SC 1999 included the Federal Supplementary Conditions for public construction projects that could be incorporated into the contract documents.

I know it’s a gamble to think that my wife or kids would be reading Best Practices … but in case you do … my birthday is right around the corner … and I want one of these:

Gadgets like the Canadian-based ecobee Smart Thermostat are coming to America!  ecobee has partnered with Brady & Associates, as well as opened a new office in Florida, to roll out this digital, energy-saving thermostat.  The ecobee has an integrated programmable smart thermostat with a WiFi-enabled touchscreen that automatically sets your household to conserve energy with a touch of a button. 

The ecobee can now also be purchased online … but that’s not the only thing happening via the Internet.  You can actually monitor and control your home temperate remotely from a personalized web portal.  That means I won’t have to get out of bed at night to turn on the air conditioner … I can use my Blackberry (… or iPhone … another birthday wish …)

This post, however, is not entirely about my wants and desires.  Let’s talk about this little gadget’s effect on the green building industry.  For example, the ecobee Smart Thermostat was installed in the Minto’s Inspiration line of echo-homes, which has been touted as "one of Canada’s greenest homes."  It has been reported that the ecobee company built its product platform around the LEED rating system.  The company’s Smart Thermostat was even selected for use in the "Smart Home: Green + Wired 2009" exhibit in March of this year, presented by Wired Magazine in partnership with Chicago’s Museum of Science and Industry.  The promotional material indicates that the device can recoup its $385 price tag within the first 12-18 months of use.

Has anyone out there installed and used an ecobee?  Let me know before July 12 … that special date right around the corner!

This occurred a few months ago:

“Honey, do you remember when we were talking about grace this week? Although you should eat all your food, I am going to show you some grace tonight. Even though you don’t deserve it, I am going to eat the rest of your chili for you.”  How nice of me.  I proceeded to spoon the rest of her chili into my bowl.  Happy tummy!

Without skipping a beat, my inquisitive daughter asked, “Dad . . . You got any grace for my broccoli?” 

For the rest of the story … go to Christopher Hill’s Construction Law Musings … where I provided today’s guest post.  Chris, thanks for the opportunity to tell another funny story about my kids and the lesson learned about changes and claims on a construction project!

Within the past couple of months, BNA started a new report called Infrastructure Investment & Policy Report.  Earlier this week, I was contacted by BNA reporter Kate Naseef to share some thoughts about HR 2454, the climate change legislation that was recently approved by the House Energy and Commerce Committee and its affect on the construction industry. 

According to AGC and ABC representatives, Naseef writes, the climate change bill is a "mixed bag" because it offers both opportunities for new construction and building modifications, but it could also lead to increased costs and delays given the regulatory hurdles. The article also highlighted comments from Cathy Altman, a good friend and construction attorney in Dallas:

Fewer, Bigger, Green Projects
 
As building shifts to more carbon-friendly facilities, there will be fewer, but bigger projects “because of the higher capital costs of green construction,” Cathy Lilford Altman, an attorney with Carrington, Coleman, Sloman & Blumenthal, L.L.P in Dallas, said.
 
A cap-and-trade program and renewable energy standards are going to further experimentation and use of new technologies and new construction means and methods, “which could open up opportunities, but also create risks,” Altman said. “There’s a certain amount of trial-and-error that is going to be inevitable,” she said. Owners are going to want guarantees that designers and contractors might not be able to give until the new technologies and processes are tested.
 
Designers, engineers, and contractors are going to have to get accustomed to working with new materials and new technologies that add cost on the front-end of a project, Matthew DeVries, an attorney with Smith Cashion & Orr, PLC in Nashville and author of www.bestpracticesconstructionlaw.com, a construction law blog, said. Whether or not this results in savings down the road remains to be seen, he said. 

Although there are reports that HR 2454 will be brought to the House floor next week, it will be interesting to see any mark-ups from the Transportation and Infrastructure Committee chaired by Rep. James L. Oberstar.  For those of us outside the Beltway, keep us informed BNA!

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According to its website, BNA "publishes—in print and electronic formats—more than 350 daily, weekly, monthly, and up-to-the-minute news services covering the full range of legal, legislative, regulatory, and economic developments that impact the business environment around the nation and the world."  If you are not a subscriber of BNA, you can take a test run of all of its services. 

Essays are a great way to teach lessons. Right now, my eleven year old daughter … who I will simply call “Princess” … is at that age where almost everyday is an “Essay Day.” Last week, when caught in the middle of a lie—about an issue that was not even meaningful—my Princess was required to write an essay about INTEGRITY.  Despite the trend of repitition, she got most of it right:

Integrity means to be honest when no one is looking. If you have integrity you will have more privileges and trust and friends. If you have integrity your friends will trust you because they know you are trustworthy in all things and at all times. . . . If you have integrity, you are honest, trustworthy and you are a good friend to have especially when your friend needs help with an outfit choice.

A career in the construction industry, just like the legal industry, can be made or destroyed based upon your reputation. What if you are known as the contractor who cuts corners, is hard to communicate with, or is just plain difficult? What if you are the owner-developer who has a reputation for never approving changes or for always delaying on responses to requests for information? The fact is … your reputation will follow you.

Reputation, however, is not the only thing that should concern you. There are countless federal and state regulations and statutes that address (and sometimes require) ethical practices in contracting. Indeed, a 2007 Federal Acquisition Regulation amendment requires contractors receiving awards in excess of $5 million on a government contract adopt written codes of business ethics and conduct. Associated Builders and Contractors, Inc. published a four-page guide for complying with this rule.

The point is … ethics and integrity should be part of our everyday lives … no matter where in the construction diagram you fall. And it should not be treated as a marketing trend. In the words of one eleven year old: “You should be honest even when no one is looking.”

You may not know this, but I grew up in New Mexico . . . the Land of Enchantment . . . until I moved to Washington, D.C. to pursue a career in politics and law. In fact, I just had my 20-year high school reunion back in Albuquerque this past week. Do you know how hard it is to get seven of your favorite restaurants into only two days worth of mealtimes? I managed.

Coincidentally, right before my trip, I received an email from an acquaintance who I met during one of my seminars at the Falmouth Institutes’ Construction in Indian Country conferences a few years ago. Donavan Natachu, Project Manager for Zuni Housing Authority, wrote:

As far as our construction we are turning towards green building. So far we have built 4 units. We use ICF’s, low–e rated windows, energy star appliances, light fixtures, and bulbs. The ICF’s that we are using are Quad-Lock and they are very simple to set up. . . . There is so much and different new materials coming out for green building that it’s hard to make any decisions on whether to use them or not.

Donavan also said that the Zuni Housing Authority is currently seeking additional HUD funds in the stimulus package that will include green construction. I was glad to hear back from Donovan and the Zuni’s commitment to best practices in construction.

I wonder what resources are available to Indian Country for green construction projects? Here are a few of the more interesting tidbits: 

The California Guide is the most informative resource for providing an overview of “green” building practices to help tribes evaluate and choose sustainable options as they develop projects with architects, contractors, suppliers, or other building professionals.  The Indian Gaming article really highlights the desire to maintain a tribe’s cultural heritage with sustainable design and building practices.

And I only have 18 days until my test … because I am taking the test on the "second to last" day.  If you are wondering why I am calling it the "last" LEED AP 2.2 test, GreenSource explains the basic requirements of the new LEED categories, including an easy-to-read chart of credentials.  If you have not already registered for the version 2.2 test, then it’s too late.  If you have registered, then you should already have a scheduled test date … and June 30, 2009 is the last possible date to take the LEED AP 2.2 test.  If you already passed, BuildingGreen.com explains what it means for you.

I know there are endless resources (…free and not-so-free.,.) out there that can help you prep for the exam.  Well, thanks to my partner Vic McConnell (…Mom always liked you best…) who passed the exam last week, I have a plan of action.  With the obligatory disclaimer (…there are no guarantees that you will pass if you follow this method…), here are some of the materials that I am using for my preparation: 

Here is a list of substantive issues that I am focusing on for the test:

  • Certification ratings and points
  • Six credit categories (WIMSIE)
  • Code/Standards referenced (especially ASHRAE)
  • Exemplary Performance Credits/ID Credits
  • Project registration
  • Project certification process
  • CIR process (Credit Interpretation Rating)
  • Appropriate rating system (LEED-NC)
  • Certification application & fees
  • Prerequisites
  • Introductory sections to each credit
  • Submittals for each credit
  • Submittal phases
  • Commissioning (EAP1 & EAc3)
  • Synergies between credits
  • Relations between SS 6.1 & 6.2; SS 5.1 & 5.2; and SS 7.1 & 7.2
  • Energy Performance credits EAP2 & 1
  • EQ Credits (3.1 – 3.2)
  • EQ Credits (4.1 – 4.4)
  • Water efficiency  – plumbing fixtures involved
  • Project administrator duties

 All you LEED-ers, did I miss anything? 

ip.jpg“Intellectual property is an extremely important and valuable asset that is often overlooked or ignored in the construction industry.” So said Brian Hickey and Edward Benes at the ABA Forum on the Construction Industry’s annual meeting in April in New Orleans.

In their joint presentation entitled When the Colors Run Together: Recent Development in the Intellectual Property Aspects of Construction, Brian and Ed highlighted the risks and liabilities associated with the four basic types of intellectual property: (1) copyrights; (2) trademarks, service marks, and trade dress; (3) patents; and (4) trade secrets. Here is why intellectual property finds its way onto our radar screen at Best Practices:

“Economic realities and environmental initiatives will drive a search for streamlined designs, new systems, and innovative materials. Industry leaders will develop standard components and process that can achieve savings in time and money. To the extent that some of these new products, methods, and designs may be protected through copyrighted drawings, trademarks, patents, trade secrets or other means, the inventors and creators will endeavor to do so.”

Brian and Ed did a great job explaining in their presentation how intellectual property relates to construction, architecture and engineering. In simple terms: Construction begins with ideas. Ideas take the form of an expression. Expressions are copied, stored, distributed. Those expressions are edited and improved.  You see where this is going … the expressions become subject to protection. These authors packaged this broad issue—intellectual property in the construction industry—in such as way as to understand the risks and walk away with some good pointers, including the following:

  • Allocate ownership of copyrights through contractual provisions
  • Understand the “thorny” collaborative design issues that naturally arise with multiple parties
  • Appreciate the risks of “copying” information
  • Evaluate the need for registration of your own information

I truly appreciate Bryan and Ed’s hard work to bring to light intellectual property for all those hardhat construction lawyers, owners, developers, architects, engineers, contractors and suppliers. 

[Note: Unfortunately, I was unable to attend their presentation because I was speaking on The Green Explosion: The Legislative Impact of Alternative Energy, Climate Change and Sustainability on the Construction Industry. However, their written paper was thorough and easy-to-read.]