Q: Our firm was hired by a contractor to perform engineering services on a number of construction projects. Our contract specifies that any claims or disputes that arose out of the agreement and could not be resolved by discussion or mediation would be resolved by binding arbitration. We both agreed that we would be bound to whatever happened in arbitration and could not take our claims to court. The contractor accused us of negligence, fraud, and breach of contract claims arising out of a dispute over one project. Rather then submit the matter to arbitration, the contractor filed a lawsuit. Should all of these claims be arbitrated?

A: Whether claims come under the coverage of an arbitration clause depends largely upon the specific wording of the arbitration clause. Tort claims such as negligence and fraud may not be covered under contract arbitration clauses unless “all claims and disputes arising out of or concerning the contract or breach thereof” is part of the arbitration clause language. Often, parties choose to limit their arbitration clause to contract disputes, not other potential causes of action. More limiting language includes, “the interpretation, application, or enforcement of the agreement,” which tends to reinforce that only contract issues are the subject of arbitration.

The Federal Arbitration Act is generally broader and generally covers multiple disputes under an arbitration clause. Under the Federal Arbitration Act, tort claims are subject to arbitration, including claims of fraud. In short, the ultimate answer will largely depend on the arbitration clause itself, state arbitration statutes, and whether the Federal Arbitration Act would apply to a particular dispute.

Q: Can you give a few basic pointers of what we should be on guard for in relationship to “green” in our contracts?

A: The universe of green projects continues to grow despite the current economic recession. More than 10 federal agencies, 30 states, and 175 counties, cities, and towns either require green construction or provide incentives for it. The federal government itself has authorized billons of dollars for energy efficient projects through direct stimulus packages.

While it is difficult in this short space to summarize many of the issues, it behooves the engineer or design professional when drafting specifications to identify green products with long lead times. It is a matter of reality that certain sustainable products are in high demand and low supply, which may result in long lead times. While this may be more within the scope of a construction manager/general contractor, it would be in the design professional’s interest to be aware of specifying products that require a long lead time to ensure appropriate schedule compliance for the project.

Be careful about your obligations regarding coordination and constructability. The industry is still on a learning curve with respect to sustainable design and construction and it may be particularly difficult to be aware of all of the nuances and interfaces that are required to identify all problems and conflicts. If you take on a constructability review as part of your services, you may want to limit your responsibility for errors and ambiguity of the design documents to those you actually discover.

Another concern is project certification. Design professionals should not assume blanket responsibility for LEED certification or other required certifications. There is always the risk that the U.S. Green Building Council might not certify a product, project, or some other item. The same is true of any other accrediting agency. Since the reasons for not certifying a project may include errors beyond the design professional’s control, avoid any contractual language that imposes overall responsibility on the design professional for achieving certification. It is recommended that the construction documents specifically identify the various tasks and issues required for a project to achieve the desired certification and clearly allocate the responsibility to each party who is best suited to satisfy the certification requirement.

Michael J. Baker, Esq., is a partner in the Cerritos, Calif.-based law firm of Atkinson, Andelson, Loya, Ruud & Romo. He is an expert in design and construction contracts, mediation, and litigation. Please send him your legal questions via e-mail at mbaker@gostructural.com.

The answers to the questions provided herein, although intended to be accurate, authoritative, and informational, may or may not accurately reflect the law in your jurisdiction or where you do business. In providing answers to these questions, it should be recognized that neither the author nor the publisher is engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional licensed in your jurisdiction should be sought. The information provided herein is for informational and hypothetical purposes only.