Editor's Column

• Author: By Lauren Catoe
• Pages: 4-5

Published in The Construction Lawyer Volume 43, Number 1, ©2024 by the American Bar Association. Reproduced with

permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any

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Forum on Construction Law The Construction Lawyer Volume 43, Number 1

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Editor’s Column

By Lauren Catoe

In furtherance of our goal to provide timely, scholarly content to Forum members in an efficient manner,

this issue marks the beginning of The Construction Lawyer’s paperless era. Given that the calendar

recently changed to 2024, I don’t think I can claim that The Construction Lawyer is an early adopter of

the trend toward a paperless world, but hopefully this transition will prove true the saying “better late

than never.” After reading through the articles in this issue, I think you will find that only the format of

the publication has changed, as the articles within it continue to be of the same quality you have come to

expect from this publication.

In “I Know What I Know–-Really Reminds Me of Money,” Robert J. MacPherson and Christian C.

Trevino address the contractual allocation of risk associated with differing site conditions. The authors

explain how the incorporation of a differing site conditions clause in a construction contract “relieves the

contractor of assuming the risk of encountering unanticipated or unusual site conditions and provides

a remedy–-typically a change order or claim–-if such conditions are encountered while eliminating

over-inflated contingencies and bids.” Stated another way, a well-drafted differing site conditions clause

results in an allocation of risk to the party in the best position to manage the risk (typically, the owner).

MacPherson and Trevino provide a helpful overview and analysis of differing site conditions clauses

found in federal, state, and local regulations, as well as those included in common contract forms in

the construction industry. Through the lens of a differing site conditions claim, this article touches on

a number of important principles in the world of construction law (e.g., contractual interpretation,

notice and claim requirements, damages, etc.). As the authors note, “[Differing site conditions] claims

are construction law in a nutshell and an examination of differing site conditions can lead to a better

understanding of construction law.”

Eric A. Berg, Kevin R. Garrison, and Wendy F. Klein Keane present the second article of this issue:

“Mastering MSAs.” As they describe, master service agreements (“MSAs”) “provide consistency and rapid

project delivery across a variety of different (or similar) construction projects.” An MSA is an umbrella

agreement form that includes the terms and conditions that will apply to any “work order” that is

subsequently negotiated and executed pursuant to the overarching MSA. The work order form addresses

the project-specific or deal-specific terms, such as scope, schedule, and compensation. Use of an MSA

makes most sense for parties who have, or plan to have, a longstanding relationship as it allows them

to get to contract faster for a particular project or scope (because, presumably, the terms and conditions

within the MSA will require little to no adjustment in the applicable work order). This article provides a

nice outline of the key provisions typically addressed in an MSA, and it concludes with some cases that

serve as examples of things to avoid when drafting and negotiating an MSA.

The final article in this issue, “Construction Lawyer’s Duty of Technological Competence--Ethical

Implications of the Use of Technology and Artificial Intelligence,” was authored by Catherine W. Delorey,

James A. Doppke, Jr., Sanjay Kurian, and Benjamin T. Johnson. Given the advancement of technology

and its pervasiveness in the practice of law, a lawyer’s well-established duty of competence has expanded

to include a duty of technical competence. In this article, the authors shed light on what it means to be

NOTES FROM THE EDITOR