School administrators are often frustrated by cost overruns and delays on much needed capital improvement projects in recent years. Yet many of those same administrators and their counsel continue to employ the same techniques and methodologies that have failed in the past. Our firm had the opportunity to serve as counsel on probably the largest individual school project in Ohio history, the Penta Career Center in Northwest Ohio, and to employ unique strategies designed to avoid the “same old problems.” We were aided by an experienced and savvy superintendent and his committed staff, and were not encumbered by OSFC regulations as the district had the good fortune to be able to build the project from their own funds.

The district elected to retain our firm on a percentage (% of construction cost) basis rather than on a fixed fee or hourly rate basis. This provided an advantage over the hourly rate in that the amount was quantified upfront and included in the budget, and allowed the district to involve their construction lawyers as much as they wanted from the very beginning at no additional cost.

As a result of these creative strategies, and the hard work of all concerned, this $90 million new construction project was completed without any claims or disputes well within budget and an entire school year early. Such a successful end result warrants discussion of the strategies utilized to effectuate this unusual and satisfying result:

1. Equitable Documents

Traditionally, owners have employed one-sided contract documents, which are bid upon by prime contractors who impose even more one-sided subcontracts on their subcontractors, and so forth, all the way down the “construction food chain.” Inequitable documents often unfairly shift the risk and encourage adversarial relationships, including excessive letter writing and “finger-pointing,” early on in the project when all parties should be working together as a team to effectuate the desired result. On this project, we instead employed equitable contract documents, which were protective of the district’s interests, but also treated the rest of the construction team fairly. As a result, we achieved better cooperation from the construction team, and presumably received better pricing on bid day.

2. Quick Pay

On many public works, payment is delayed several months to the contractor, who then delays payment to the subcontractors, who are paying their employees every Friday and their suppliers every 30 days. This “forced financing” of the project by the construction team often leads to adversarial relationships, poor performance, and the costs of the “forced financing” are often included in the price on bid day, which ultimately increases the overall project cost to the taxpayers. School districts that have employed “quick pay” often get better performing contractors interested in the project and better pricing on bid day. That appears to have been the experience with respect to this project as well where good contractors were low bidders and no payment problems were encountered during the course of the entire project. The district paid its prime contractors five days from receipt of the approved draw by electronic transfer of funds, and insisted that the prime contractors pay their subcontractors promptly as well.

3. Line Item Release of Retainage

Contractors and subcontractors often include the cost of “financing the project” in their bid prices, particularly when the retainage rates are higher than their profit and retainage is expected to be withheld for a significant period of time. Early finishing trades often have their retainage held for a couple of years while a large project is being finished by other trades. It does not help the owner get the punchlist done if the contractor or subcontractor who finished early has been off the site for an extended period of time and still does not have his retainage. Therefore, we included a provision that allowed for line item release of retainage so that early finishing trades could finish all of their work (including those annoying punchlist items) and get their full payment (which certainly had been earned once their work was 100 percent satisfactorily complete). Once again, this reduced overall project costs and encouraged earlier completion and timely resolution of punchlist items.

4. Prevailing Wages

As this project was being constructed in a highly-unionized area, and the district has traditionally enjoyed a fine relationship with trade contractors in the area who regularly employ many of their graduates, the district elected to make this a prevailing wage project. As a result of being a prevailing wage project, union contractors actively participated in the project and experienced tradesmen were the norm, not the exception. As a result, there was greater labor cooperation and “esprit de corps” that was often lacking on school projects in Ohio.

5. No A/E or C/M Markup on Changes

Districts are often frustrated to find their design professionals or construction managers profiting from their own mistakes. For example, if an error of omission leads to a change order, and the construction cost of the project increases, the designer frequently receives additional compensation because their fee is based on a percentage of construction costs. This perceived inequity caused us to make sure that there would be no markup on changes for the designer or the construction manager, and perhaps encouraged their close scrutiny of change orders for appropriateness.

6. Early Site Package

A late or wet spring has slowed progress or delayed completion of many school construction projects over the years. With this in mind, the district put out for bid an early site package, which allowed the site work to be done in dry fall conditions before winter. This ensured prompt work on the pad the following winter and spring when the balance of trade contractors began work. This “jumpstart” to the project was very helpful to the overall project schedule.

7. Quick Finish

As a result of the strategies employed above, the project was put in a position where it could finish early if we had the “buy in” and cooperation of all the trade contractors. We then secured their approval to an early completion of the project which would allow them to end their general condition costs earlier than otherwise. For no additional compensation from the District, the contractors agreed to finish early and achieved completion of the school in time to open an entire school year early. This had great and tangible benefits to the District and its students and yet was achieved for the original budget sum.

Lessons Learned

The lessons learned from this exciting and successful project can perhaps help other school districts in Ohio, and perhaps even the OSFC, find creative ways to “do more for less” during these difficult economic times. Employing creative and unique strategies seems far preferable to simply “doing more of the same” and complaining about the inevitable frustrating results.