1269

T R E N D L I N E S W W W . T H E Z W E I G L E T T E R . C O M O c t o b e r 2 2 , 2 0 1 8 , I s s u e 1 2 6 9

Social Media Spotlight

Keeping yourself fresh

I f you want your AEC firm to stay fresh and relevant, YOU – as the owners and managers of the enterprise – HAVE to stay fresh and relevant yourselves. That gets more and more difficult the older you get. I speak from experience! This is important stuff! Here are my thoughts: 1)Keep reading. While I am admittedly not a fan of the many “pop management” books out there, I do think we all need to keep reading. It stimulates the brain. And who knows what knowledge or inspiration we could get from it? 2)Follow the news and pop culture enough that you can talk about it. If you aren’t keep- ing yourself informed about these things you won’t be fresh. The opposite of fresh is stale! 3)Associate with younger people. They have a different energy from us older people. They can work their butts off. They also know new ways of doing things and new technologies. 4)Work out/exercise. It’s been proved that if you don’t stay active physically it affects your mental state. Keep moving! Then maybe your brain won’t atrophy! My mom who is 98 is a great example. She still lives on her own, doing everything everyone else does. And she hasn’t suffered any mental deterioration. 5)Travel the globe. You’ll gain new perspective from your travels and that will help you keep the ideas flowing. There’s no substitute for international travel and experiencing different cultures. 6)Take a class. Keep learning! There are so many great classes you can take through your local (or not local) colleges and universities. Here at the University of Arkansas we have everything

“We either grow or die. That applies to firms and the people in them. I don’t know about you, but I plan to keep on growing – and to stay fresh!”

In Zweig Group’s Social Media Spotlight portion of the 2018 Marketing Survey , the time and effort committed to social media was analyzed. Despite the known power, continued exposure, and relatively low cost of social media, most firms are spending less than an hour a week sharing their content across platforms. Interestingly, firms were using Twitter more than Facebook and LinkedIn to share links to news articles and press releases about their firm. F I R M I N D E X ATI Architects and Engineers...................4 Atlas Technical Consultants.....................4 Burns & McDonnell Engineering Co.......10 JKMM...................................................12 Morrison-Maierle.....................................6 NV5. .......................................................4 O’Connell Robertson...............................2 Piedmont Geotechnical Consultants. ......4 SCJ Alliance............................................2 Westwood Professional Services.............4

Mark Zweig

MORE COLUMNS xz GENERAL COUNSEL: Is there a doctrine in the house? (Part 4) Page 9 xz GUEST SPEAKER: Excel struggle bus Page 11

Page 6 Conference call: Scott Murphy See MARK ZWEIG, page 2

In the books

Page 3

T H E V O I C E O F R E A S O N F O R A E C F I R M S & M A N A G E M E N T C O N S U L TA N T S

ON THE MOVE O’CONNELL ROBERTSON PROMOTES FIVE KEY STAFF MEMBERS O’Connell Robertson recently recognized five staff members earning associate or senior associate titles through the firm’s Associate Program, which serves to recognize and encourage high impact employees who improve firm operations and contribute to the success and growth of the firm. “The unique strengths and contributions of these key team members at O’Connell Robertson are making a significant impact on our clients, firm culture and operations,” said Amy Jones, President. “We look forward to their continued contributions and leadership in their areas of expertise and beyond.” Jayna Duke has been with the firm for 10 years, serves as the firm’s interiors practice leader, and is a registered interior designer and LEED accredited professional. Duke’s experience includes a variety of healthcare and education projects, ranging from new hospitals and medical office buildings to athletic facilities and new schools. Duke earned a bachelor’s degree with a concentration in interior design from Texas State University. Becky Winovitch is a registered architect with 21 years of experience in planning and design for many of the firm’s projects, with a strong focus on technical resolution of design documents. She has been instrumental for the firm in additions, renovations, new buildings and interior finish-out projects. Winovitch holds a bachelor’s degree in architecture from Louisiana State University and is a member of the Construction Specifications Institute. Misela Vandewalle, a registered architect, brings the firm nearly a decade of experience in the planning, design and production of various facilities. Through design solutions tailored to the project mission, she shapes flexible learning environments that embrace diverse learning styles and promote innovation. Vandewalle has a Bachelor of Science in Architecture and a Master of Architecture. Kyle Fisher is a registered engineer with more than 10 years of experience in the HVAC industry as a DDC Controls and mechanical contractor project manager. Fisher oversees the commissioning process in addition to designing steam, water, and air HVAC installations.

Fisher holds a bachelor’s degree in mechanical engineering. Jeremy Zorn is a registered engineer with more than 15 years of experience as an electrical engineer and possesses significant expertise in specification writing and product selection of power distributions, lighting systems, fire detection, alarm, emergency power and grounding. Zorn earned his bachelor’s degree in electrical engineering from Texas A&M University. O’Connell Robertson is a full-service architecture and engineering firm whose mission-driven approach creates education and healthcare environments that enrich the lives of the people they were designed to serve. JEAN CARR TAKES THE HELM AS SCJ’S PRESIDENT/ CEO Jean Carr became president and CEO of SCJ Alliance in October. Carr and former CEO Perry Shea founded the company 12 years ago along with Bob Jewell. The three of them have anticipated this transition for a number of years. Shea is now the chief business development officer, continuing his role as one of the firm’s lead practice builders. He will focus on advancing growing markets, such as cable and rail propelled transit systems, which include urban gondolas. In addition to the CEO change, SCJ welcomed the firm’s hundredth employee, this one in SCJ’s Centralia, Washington, office. The company also has offices in Lacey, Seattle, Ballard, Vancouver, Spokane, and Wenatchee, Washington, and another in Boulder, Colorado. Project teams often include people from multiple offices who work together virtually, creating dynamic groups that seamlessly collaborate with each other. SCJ Alliance is a multidisciplinary consulting firm specializing in civil engineering, transportation planning and design, landscape architecture, environmental and urban planning, and public outreach. The privately-held firm has been nationally recognized multiple times for growth, award-winning projects, and as a great place to work.

1200 North College Ave. Fayetteville, AR 72703 Mark Zweig | Publisher mzweig@zweiggroup.com Richard Massey | Managing Editor rmassey@zweiggroup.com Christina Zweig | Contributing Editor christinaz@zweiggroup.com Sara Parkman | Editor and Designer sparkman@zweiggroup.com Liisa Andreassen | Correspondent landreassen@zweiggroup.com

Tel: 800-466-6275 Fax: 800-842-1560

Email: info@zweiggroup.com Online: thezweigletter.com Twitter: twitter.com/zweigletter Facebook: facebook.com/thezweigletter Published continuously since 1992 by Zweig Group, Fayetteville, Arkansas, USA. ISSN 1068-1310. Issued weekly (48 issues/year) $250 for one-year print subscription; free electronic subscription at thezweigletter.com/subscribe Article reprints: For high-quality reprints, including Eprints and NXTprints, please contact The YGS Group at 717-399- 1900, ext. 139, or email TheZweigLetter@ TheYGSGroup.com. © Copyright 2018, Zweig Group. All rights reserved.

MARK ZWEIG, from page 1

from welding to yoga – and most of them are free. Isn’t that better than staying in and binge watching Better call Saul or some other such thing? 7)Embrace your hobbies. The right hobbies can help you meet other people, learn new stuff, and see the world differently. That’s good! It will keep you fresh. Make it happen. We either grow or die. That applies to firms and the people in them. I don’t know about you, but I plan to keep on growing – and to stay fresh! MARK ZWEIG is Zweig Group’s chairman and founder. Contact him at mzweig@zweiggroup.com.

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

P R O F I L E

The 2018 Elevate the Industry Panel Discussion was chaired by, from left to right: Josh Brown, Vice President, Huckabee; Steve Lucy, Managing Partner, JQ Engineering; Ozzie Nelson, Chairman & Co-CEO, NELSON; Sepideh Saidi, President & CEO, SEPI Engineering & Construction; and David Wantman, President, WGI.

In the books With the unequivocal success of this year’s Hot Firm & A/E Industry Awards Conference in Dallas, all eyes now turn to Las Vegas in 2019.

By RICHARD MASSEY Editor

C had Clinehens, Zweig Group’s president and CEO, said this year’s Hot Firm conference represented a quantum leap forward for the firm and its signature event. Record at- tendance of nearly 300, high energy among attendees, and a good mix of fun and education marked the two-day gath- ering, which unfolded at the palatial Fairmont Hotel. With Zweig Group’s new mission, Elevate the Industry, un- dergirding the 19th annual conference, Clinehens was ac- curate in his assessment that, indeed, Zweig Group has ar- rived at a new plateau from which to do bigger and better things for the market, people and firms it serves. He opened the conference with a bang, veering from a hu- morous story about a misadventure at the 2017 conference in Seattle, to the presentation of industry statistics culled from Zweig Group’s extensive catalogue of AEC research and intelligence. Clinehens ended his address with a pointed, forward-look- ing message, one that set the tone for the entire assembly. “Promote, diversify, educate, change, and celebrate,” Cline- hens told the audience. “We can’t do this alone. We must come together and be intentional. Zweig Group is ready to

continue our evolution as an advisor and hub of informa- tion and resources while leading this movement – one that brings us together to promote and advance the industry.” Before this year’s event was even over, people were looking west, to Las Vegas, where the 2019 conference will be held Sept. 18-20 at the Green Valley Ranch Resort. One hundred of the nation’s fastest-growing firms were honored this year, as well as dozens of Best Firms to Work For. Awards were also issued for Marketing Excellence and to individual Rising Stars. The 2018 event culminated in a black-tie gala and concert by ‘80s cover band Ultra Suede. As with many engagements hosted by Zweig Group, there was plenty of food and drink. At the heart of the conference were the breakout sessions, hour-long drill-downs on a variety of topics – presented by conference sponsors and consultants – from marketing and company culture to ownership transition, research and de- velopment, mergers and acquisitions, technology, strategy, business development, ESOPS, and an entertaining open mic by none other than firm founder and chairman Mark Zweig.

See IN THE BOOKS, page 4

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

IN THE BOOKS, from page 3

Looking back on nearly 40 years in the AEC industry, Zweig said the biggest changes he’s seen are that firms have finally embraced mar- keting, and that increasing value has been placed on business acu- men, not just design expertise. Zweig, of course, circled back to the foundation of any good firm – its people. “You have to treat your folks well or they will leave,” Zweig says. “You can’t be too cheap and you have to be nice.” This year’s sponsors were Corporate Tax Advisors, Bentley, Project- Boss, Wintrust Commercial Banking, AEC Business Solutions, Cli- ent Savvy, Ames & Gough, KiwiCo, BLK EYE Vodka, Hiball Energy, Menguin, and Civil + Structural Engineer magazine. Keynote speak- ers included Jay Steinfeld, founder and CEO of Blinds.com, and Christopher Parsons, founder and CEO of Knowledge Architecture. One of the liveliest breakouts was the one focused on an important topic in the AEC industry – mergers and acquisitions. Hosted by Ja- mie Claire Kiser, Zweig Group’s CFO and director of consulting, the panel featured Bryan Powell, VP, Land Division, Westwood Profes- sional Services ; L. Joe Boyer, CEO, Atlas Technical Consultants ; Paul DiDonato, CEO and president, ATI Architects and Engineers ; and Lawson & Weitzen attorney George Christodoulo. “Once you do a deal, the headhunters are on the phone,” said Christ- odoulo, referring to the ripple effect an acquisition can have on a selling firm’s employees. While staffers who must sign non-com- petes are important, the selling firm’s employees that really need to be retained, post-deal, are the ones on the next tier down. You lose them, and you could lose the firm. “What are my people going to think of this?” said Christodoulo, re- ferring to a critical question that all selling CEOs must ask them- selves – and appropriately answer. Boyer, who recently closed on the acquisition of Atlanta-based Pied- mont Geotechnical Consultants , had this to say about mergers and acquisitions: “There’s no such thing as a merger. There’s always a buyer and there’s always a seller.” Dickerson Wright, chairman and CEO of NV5 , the No. 1 Hot Firm for 2018 and 2017, during his keynote address spoke to the impor- tance of organic growth and how to keep employees satisfied and engaged. A publicly traded company, NV5 offers stock to all employ- ees. “Equity, equity, equity,” Wright said, referring to his firm’s approach to inclusion in a company with a flat org chart. Repeat conference sponsor and long-time management consultant June Jewell, founder of AEC Business Solutions, appeared in front of a packed house during her breakout session, Getting Your Em- ployees to Think (And Act) Like Owners. Having met with countless CEOs to discuss the ills that infect their firms, Jewell has her finger on the pulse of the C-suite and those they lead. Not surprisingly, her comments were consistently met with nods of approval as she moved through her presentation. Referring to over-delivery on projects, potential leaders that know nothing about business, employees that don’t use company sys- tems, increasing overhead and declining fees, disengaged employ- ees, work silos, and PMs that might be PMs in title only, Jewell looked at her audience and, with a knowing glance, said, “There are things that are happening in your company that you think should be different.”

SOURCE: The Changing Workplace: New School vs. Old School, 2018 Hot Firm & A/E Industry Awards Conference

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

ZWEIG GROUP 2019 EVENT SCHEDULE

MAR 13-15 27

Successful Successor Roundtable Excellence in Project Management

New Orleans, LA Kansas City, MO

APR MAY JUN JUL SEP OCT

CEO Roundtable Retreat The Principals Academy

10-12 24-25

TBD Dallas, TX

Leadership Skills for AEC Professionals

22-23

Philadelphia, PA

The Principals Academy Real Marketing & Branding for AEC Firms AEC Business Development Training

5-6 20 21

Seattle, WA Chicago, IL Chicago, IL Minneapolis, MN

The Principals Academy

17-18

Hot Firm & A/E Industry Awards Conference

Las Vegas, NV

18-20

Real Marketing & Branding for AEC Firms AEC Business Development Training The Principals Academy

10 11 23-24

Houston, TX Houston, TX New York, NY

NOV 13-14

Irvine, CA Leadership Skills for AEC Professionals

For more information

www.zweiggroup.com/seminars/

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

P R O F I L E

Conference call: Scott Murphy President and CEO of Morrison-Maierle (Best Firm #27 Multi-discipline for 2017), a 280-person firm based in Helena, Montana.

By LIISA ANDREASSEN Correspondent

“I t’s vital to our success,” Murphy says, referring to en- trepreneurship in the firm. “For some employees, their role is outward focused with efforts to grow the business in existing/new markets. For others, it might mean creat- ing greater efficiencies in how we deliver services, internal- ly and externally. For everyone, it means looking to create more valuable and memorable client experiences every day.” A CONVERSATION WITH SCOTT MURPHY. The Zweig Letter: While M&A is always an option, there’s something to be said about organic growth. What are your thoughts on why and how to grow a firm? Scott Murphy: We embrace both, provided it’s grounded in creating new opportunities for our employee-owners to cul- tivate their careers and work with clients that value our ser- vices on challenging projects that make our communities a better place to live. Much of our 16 percent net revenue growth in 2016 was due to acquisition activities that result- ed in three new offices in a territory we formerly served at

a distance. Our 22 percent net revenue growth in the last 17 months has been fueled by organic growth, including services expansion in the new geographic regions gained through acquisition. We anticipate using similar combined strategies in the future. TZL: The list of responsibilities for project managers is seemingly endless. How do you keep your PMs from burning out? And if they crash, how do you get them back out on the road, so to speak? SM: While burn-out risk has not been pervasive in our firm recently, we see the potential for it in some particularly busy market groups. An effective response must be tailored to the individual circumstances. The acute situations may simply require a strong plan and recognition that the “end is in sight.” The more troubling situations are the chronic ones in a hot market with limited staff, or those that are self-in- duced. In the former situation, it takes the entire team to pitch in and support their colleague(s). In the latter, it takes

THE ZWEIG LETTER Octo

TZL: The design-build delivery model appears to be trending upward. What are the keys to a successful design-build project? What are the risks? SM: Our design-build project portfolio is growing, but is constrained somewhat by public project bidding laws in states where we have our greatest presence. We’ve had the most success in those mar- kets and with clients where regular proj- ects of a particular type (like highway bridges) have allowed us to partner with a single contractor and build a trusted re- lationship using staff who are motivat- ed and energized by the fast-pace of this type of work. TZL: The talent war in the A/E indus- try is here. What steps do you take to create the leadership pipeline needed to retain your top people and not lose them to other firms? SM: We feel fortunate that very few of our top leaders leave to join other firms. Broad-based ownership, combined with a dispersed and inclusive decision-mak- ing culture help tremendously in keep- ing our home-grown leaders at home. As for leadership and management training, we’ve recently refocused our efforts to ensure that our front-line managers have the training they need to succeed. We en- courage all employee-owners to take their own leadership and career development seriously, and we work to offer a variety of ways for them to spread their leader- ship wings inside the firm, or with com- munity or professional groups. TZL: While plenty of firms have an own- ership transition plan in place, many do not. What’s your advice for firms that have not taken steps to identify and empower the next generation of own- ers? SM: We’ve always had a strong owner- ship transition mindset, beginning with our founders who saw the benefit of en- couraging ownership among key employ- ees to drive business results. In 1994, our leadership created an ESOP to allow all employees the opportunity to realize ownership benefits. As of 2017, we’re 100 percent ESOP owned which, com- bined with S-corporation status, allows us maximum flexibility to reserve cash and reward employee-owners and grow the firm. It was the right decision for us, and one that I believe many firms would benefit from. My advice – if you haven’t got started yet, start the conversation. See CONFERENCE CALL, page 8

a manager working with the chronically overworked individual to recognize there really are ways to delegate or say “No.” Burn-out situations are never easy to ad- dress. TZL: There are A/E leaders who say profit centers create corrosive internal competition for firm resources. What’s your opinion on profit centers? SM: We have a long history of office- based profit centers. About 10 years ago, we introduced a market-based organi- zation and currently operate and moni- tor results in a matrix-fashion. By look- ing at financial information in a variety of ways, and designing incentive pro- grams to reward company performance over individual unit performance, we’ve broken down many barriers. Yet, we still question if this is the best way to achieve the optimal combination of growth and profitability. We’re nearing the end of our current seven-year vision timeframe and a hard look at our profit center structure will be a focus soon. Going forward, many of us believe fewer profit centers will re- move additional barriers and better en- courage optimized firm operations. TZL: What’s your policy on sharing the firm’s financials with your staff? Week- ly, monthly, quarterly, annually? And how far down into the org chart is fi- nancial information shared? SM: We’re 100 percent employee-owned, so we share financial data with all employ- ee-owners on a monthly basis, and office and market data is shared internally to each group by their leader about as often. Operational sub-groups within markets and offices, depending on circumstances, share financial data and project manage- ment data internal to their groups. We also regularly share other operational in- formation such as collection days, sales performance, employee engagement measurements, etc. Following each quar- terly meeting of our board of directors, a member of the board meets individually with all offices, in person or virtually, to debrief them on board topics and discus- sions. In sharing data and information widely, we attempt to do so from the standpoint of setting clear expectations and promot- ing continuous improvement. We mes- sage the importance of working cooper- atively to a client’s benefit, and have in- centive/bonus programs that weigh com- pany financial performance much more strongly than any group performance.

YEAR FOUNDED: 1982 HEADQUARTERS: Helena, MT OFFICES: 12 offices in 4 states:

❚ ❚ Montana ❚ ❚ Wyoming ❚ ❚ Washington ❚ ❚ Arizona NO. OF EMPLOYEES: 280 SCOTT MURPHY: In January 2017, Scott Murphy was named Morrision-Maierle’s eighth president/ CEO. He’s been with Morrison- Maierle since 1998 and has held various leadership positions since 2000. SERVICES: ❚ ❚ Airports ❚ ❚ ARFF training centers

❚ ❚ Buildings ❚ ❚ Industrial ❚ ❚ Development ❚ ❚ Natural resources ❚ ❚ Surveying ❚ ❚ Transportation ❚ ❚ Waste/waste water

VISION 2020: In 2013, Morrison- Maierle’s employee-owners came up with a plan that provided a path toward its goal of becoming an extraordinary place to work and the preeminent engineering firm in the West. This is now known as “Vision 2020” which is based on culture, leadership, opportunity, growth, community, collaboration, and excellence.

ober 22, 2018, ISSUE 1269

8 TZL: Zweig Group research shows there has been a shift in business development strategies. More and more, technical staff, not marketing staff, are responsible for BD. What’s the BD formula in your firm? SM: Our business development culture is strongly aligned to the seller-doer model, and always has been. As with any firm using this approach, the challenge is keeping the BD flywheel moving during the busy times, particularly when trying to grow into new markets and geography with new clients. We watch this situation closely and are working to develop better forecasting tools that our leaders can use to ensure the pipeline is full and filling at all times. With a sell- er-doer model, formal and informal BD training is key. We are working to make improvements in this area. CONFERENCE CALL, from page 7 “We message the importance of working cooperatively to a client’s benefit, and have incentive/bonus programs that weigh company financial performance much more strongly than any group performance.” TZL: Diversifying the portfolio is never a bad thing. What are the most recent steps you’ve taken to broaden your revenue streams? SM: As a full-service engineering, surveying, planning, and environmental consulting firm, we’ve always embraced and encouraged a diverse portfolio of clients, markets, and ser- vices. Recent firm acquisitions in Wyoming communities brought additional geographic diversity, and are allowing us to expand from the three to four service-lines these firms operated in to the broader full-market capabilities of our entire team. We’re winning work in Wyoming that would have been unlikely before, and we’re finding client-welcom- ing opportunities for our buildings group and other mar- kets. TZL: What is the role of entrepreneurship in your firm? SM: It’s vital to our success. For some employees, their role is outward focused with efforts to grow the business in existing/new markets. For others it might mean creat- ing greater efficiencies in how we deliver services, internal- ly and externally. For everyone, it means looking to create more valuable and memorable client experiences every day. In a classic entrepreneurial sense, our industrial market group is a great example. Created only a few years ago, its genesis was the identification of a niche we could fill for large industrial and mining organizations that require full- service engineering, surveying, and environmental partner- ships on projects at existing sites. These projects are typi- cally of substantial size to our firm, but perhaps not so for large consulting firms with a national footprint. The indus- trial/mining organizations we work with get a level of ser- vice from us that they don’t always see from these national firms which have trouble being as nimble and responsive. Our industrial market group is one of our fastest growing and most profitable.

TZL: In the next couple of years, what A/E segments will heat up, and which ones will cool down? SM: Making bold predictions is a fool’s game in my experi- ence. General economic indicators remain positive and so we’re planning for all of our current market segments to re- main strong for the next six to 12 months. I’m more con- cerned about how to plan and react to unfolding events. We’re thinking more about scenario planning and less about predictions. The next recession likely won’t be triggered in the same way as the last one, but we’re better prepared to react now. TZL: Measuring the effectiveness of marketing is diffi- cult to do using hard metrics for ROI. How do you evalu- ate the success/failure of your firm’s marketing efforts when results could take months, or even years, to mate- rialize? Do you track any metrics to guide your market- ing plan? SM: We’ve typically tracked our success rates on some of our business development efforts, but that is a far cry from tracking marketing success. More recently, we’ve been working on development of a balanced scorecard. Within the customer perspective of this effort, we’ve been working to identify, and begin tracking, some metrics that we antici- pate will help us measure the effectiveness of our marketing and external communications efforts. Check back with me in a year or two; I may have a different perspective on this question. TZL: They say failure is a great teacher. What’s the big- gest lesson you’ve had to learn the hard way? SM: We were slow to react during the Great Recession, par- ticularly as it played out in different ways and at different speeds in our upper Rockies and southwest locations. A strong balance sheet and cash position as we headed into the recession were significant buffers to a need to react quickly to a declining backlog and revenue. As an organiza- tion that prided itself on not being a “hire and fire firm,” we took too long to act in retrenching and retooling our staff- ing mix, market capabilities, and geographic locations. Go- ing forward, we’re purposefully more diverse in our service offerings in each geographic location and have better tools in place for managing our business. TZL: Do you use historical performance data or metrics to establish project billable hours and how does the type of contract play into determining the project budget? SM: For most projects, historical performance data serves either as the starting point, or as an important “check and adjust” step for establishing project budgets. In either case, a tight scope of work tailored to the needs of each client is essential for budget success. We encourage project manag- ers to use our ERP system to divide work scope into man- ageable tasks, with assigned budgets, so that actual perfor- mance can be tracked on current efforts, and used to help establish budgets for subsequent projects. Tightly scoped lump sum project contracts are our preference, but many of our public clients are precluded from using this approach due to funding constraints or administrative rules. In the end, any type of contract can be successful if paired with a proper scope, a budget that effectively addresses risks and a project manager adept at dealing with inevitable change.

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

O P I N I O N

In the absence of extraordinary situations, the courts will rely on the contract’s terms, not the Impossibility of Performance Doctrine. Is there a doctrine in the house? (Part 4)

M y wife and I visited St. Peter’s Basilica in Rome a few years ago. A friend recommended that we try to see St. Peter’s tomb, which is located beneath the grand cathedral and requires a special ticket for admission. When I inquired about tickets, however, the Vatican sales clerk told me that these tickets are sold weeks in advance and it was “impossible” to merely walk up to the window and buy one. I thought for a moment about where I was and said, “With God, nothing is impossible.” He smiled and said, “With God, yes! But with you, it is impossible!” This harkens back to another legal doctrine, commonly known as the Impossibility of Performance Doctrine.

William Quatman GENERAL COUNSEL

In the Supreme Court’s 1918 ruling in U.S. v. Spearin, it was stated that, “Where one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered.” But what if the “thing” to be done is not physically possible to perform? The courts have created the Impossibility of Performance Doctrine to cover such situations, which excuses a party to a contract from performance “when an act of God, the law, or the other party renders performance

impossible.” The doctrine also covers physical constraints that make the work impossible. This doctrine is not based on whether a particular contractor cannot perform the work, but whether “any” contractor could perform it. Courts have held that, “performance is rendered impossible only when it is objectively determined that no contractor could perform the work.” Impossibility of performance is not subjective and is recognized only in the nature of the thing to be done, and not in the inability of the party to do it.

See WILLIAM QUATMAN, page 10

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

WILLIAM QUATMAN, from page 9

time work becomes more difficult than anticipated. As a result, a party may invoke the Doctrine of Commercial Impracticability as a defense to performance of a contract only when it can show that it had the ability to perform a contract at the time it entered into the contract, but that circumstances changed due to events beyond the party’s control, which now render performance commercially impracticable. Therefore, to fit squarely within the impracticability rule, there must be some intervening event which has occurred which makes performance impracticable. A substantial and latent design error, undetected in bidding, could be such a condition if it would cause “extreme and unreasonable difficulty, expense, injury, or loss to one of the parties.” If so, this is a type of constructive change and the contractor may be entitled to an equitable adjustment in compensation. “If you sign a contract to do a job possible to be performed, the courts will not normally excuse performance or award additional compensation, merely because unforeseen difficulties are encountered.” The Doctrine of Commercial Impracticability is embodied in Section 2-615 of the Uniform Commercial Code, which has been adopted in most states. That section of the UCC excuses delay in delivery or non-delivery, in whole or in part, by a seller of a product if performance as agreed has been made impracticable by: 1)The occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made. 2) By compliance in good faith with any applicable foreign or domestic governmental regulation or order, whether or not it later proves to be invalid. Mission impossible? To prevent abuse, the impossibility and impracticability doctrines are not regularly accepted by the courts. In the absence of extraordinary situations, the courts will hold the contracting parties to the terms which were bargained for at the time the contract was signed. As the Supreme Court held 100 years ago in U.S. v. Spearin, if you sign a contract to do a job possible to be performed, the courts will not normally excuse performance or award additional compensation, merely because unforeseen difficulties are encountered. Also, if you fail to plan your vacation to Rome properly, you will find that the ticket clerks are also unsympathetic, and will not grant relief. So it is up to you to plan your construction projects and your vacations carefully and not rely upon the impossibility doctrine! G. WILLIAM QUATMAN, ESQ., is general counsel and senior vice president at Burns & McDonnell Engineering Co. He can be reached at bquatman@burnsmcd.com.

In the words of one court, “You can engage a contractor to make snowmen in August, if you spell it out clearly [that] you are not warranting there will be any subfreezing weather in that month.” This quote points out the reluctance of courts to excuse performance where commercial parties contract with each other for known and foreseeable risks, even when the work is very difficult. Problems encountered due to acts of God, changes in law, design errors or site conditions may be so extreme, however, that the contractor simply cannot perform the work as specified. Where problems are this severe, two questions are raised: 1) Is it physically possible to perform the work? 2) If so, is the cost or difficulty in the work so extreme that, while not impossible to perform, it is commercially impracti- cable? One example of an impossible specification was one which required the contractor to build six bookcases four feet wide each, and to install them between two windows that were only 18 inches apart! In a 1965 case, the specifications called for use of a thin steel piling which turned out to be inadequate due to soil conditions. The contractor claimed that it was impossible to drive pilings to support the new hospital building using the specified pilings, and was awarded damages for delay plus extra costs incurred in installing the pilings under this doctrine. However, due to improvements in modern construction technology, there are relatively few construction tasks which are physically impossible to perform – even making snowmen in August. This has given rise to a related legal doctrine called the Doctrine of Commercial Impracticability. Under this doctrine, a contractor may be excused from performance because the cost of performance makes literal compliance with the specifications commercially impracticable. Some courts have merged the two doctrines together, holding that, “the doctrine of impossibility does not require a showing of actual or literal impossibility of performance but only a showing of commercial impracticability.” “To prevent abuse, the impossibility and impracticability doctrines are not regularly accepted by the courts. In the absence of extraordinary situations, the courts will hold the contracting parties to the terms which were bargained for at the time the contract was signed.”

To widely apply the impracticability doctrine could give rise to abuse by contractors who seek contract relief every

TALK TO US Are you interested in having your firm featured in our Business News section? Let us know. If interested, please send your press release to sparkman@zweiggroup.com.

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

S P O N S O R S H I P

Excel struggle bus

While the software is a proven workhouse for data storage and analysis, there are 7 good reasons to stop using it to manage your projects

Editor’s note: ProjectBoss was a sponsor of the 2018 Hot Firm + A/E Industry Awards Conference in Dallas. I get it. It’s right there on your desktop, occupying the same spot it did 25 years ago. The familiar green icon beckons you to click on it, open your project “template” (complete with 17 different tabs), and start filling in the blanks. A few hours later (and several skipped sections and tabs), you have an outline, some graphs, and maybe some charts. You save it on the shared drive, send an email to the project team (forgetting to include a few people), and off you go.

Mark Little GUEST SPEAKER

Half the team doesn’t even bother to open it and look at it. In the following days and weeks, the Excel file isn’t updated and gets stale. In a panic, you open it two hours before your meeting and scramble to get input from your team to hopefully have a reasonably accurate document. It’s usually weeks or months after the project is over before you have a complete financial picture of the project, which was probably late and over budget. Rinse and repeat. It’s a recipe for frustration and failure. Don’t kick yourself too hard. You’re not alone on the Excel struggle bus, and we have a solution to put an end to your Excel nightmares once and for all.

Here are seven reasons to stop using Excel for project management: 1)Lack of Gantt charts. Yes, you can drag and ex- pand columns, change background colors, enlarge fonts, etc. However, updating tasks and milestones becomes a major chore. And forget about creating dependencies between tasks. Gantt charts are a much easier and better solution to laying out your projects. Just click, drag, and drop. You also won’t need to print out several pieces of paper and tape them together to get everything to line up properly for your meeting.

See MARK LITTLE, page 12

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

BUSINESS NEWS AMOS REX: A NEW CULTURAL POWERHOUSE FOR HELSINKI The latest addition to Helsinki’s cultural quarter opens with “teamLab: Massless” a major international exhibition by the Tokyo-based art collective teamLab filling its 2,200 square meter gallery space with digital art. Finland’s capital Helsinki has gained a major new cultural institution and a striking new public space with the completion of Amos Rex. The art museum opens after a five-year, €50 million project designed by architecture firm JKMM , which has seen the refurbishment of the landmark 1930s Lasipalatsi building in Central Helsinki. At the heart of the museum, 13,000 cubic meters of rock was excavated to create a new 2,200-square-meter world- class flexible gallery space topped with a series of domes and skylights that form the new undulating landscape of the Lasipalatsi Square. Amos Rex’s exhibition program extends from the newest, often experimental, contemporary art to 20th-century modernism and ancient cultures. Amos Rex aims to present captivating and ambitious art refreshingly and exuberantly. The goal is for the past, present, and future to produce unique experiences and surprising encounters beneath and above ground, and on the screen.

Amos Rex opens with Massless, an exhibition by the Tokyo-based digital art collective teamLab, which will run until January 6, 2019. In the early half of 2019, Amos Rex will present a retrospective of the Dutch art collective Studio Drift as well as Rene Magritte: Life Line, the first major exhibition of this pioneer of the surrealist movement in Finland. Kai Kartio, director of Amos Rex, said: “The opening of Amos Rex is one of the biggest events to occur in the cultural life of Helsinki for a generation and will offer unrivalled facilities for the display of art, exhibitions, film, and performance.” Asmo Jaaksi, founding partner of JKMM said: “Integrating one of Finland’s architecturally pioneering 1930s buildings – Lasipalatsi – as part of the Amos Rex project has been a moving experience. By adding a bold new layer to Lasipalatsi, we feel we are connecting past with present. We would like this to come across as a seamless extension as well as an exciting museum space very much of its time”; The square adjacent to Lasipalatsi is one of the most important public spaces in Helsinki. We hope the newly landscaped Lasipalatsi Square with its gently curving domes will be received as a welcome addition to Helsinki’s urban culture; a place everyone and anyone in the city can feel is their own.”

Toshiyuki Inoko, founder of teamLab said: “We are very excited to have the opportunity to participate in the inaugural exhibition at Amos Rex. teamLab aims to explore a new relationship between humans and the world, and between people and nature through art. Digital technology has allowed art to liberate itself from the physical and transcend boundaries, and we believe digital art can turn the relationship between people in the same space into a positive experience.” Amos Rex is the latest addition to the buzzing cultural quarter of Helsinki, which already includes the Kiasma Museum of Contemporary Art, Helsinki Music Centre, Alvar Aalto’s Finlandia Hall, the National Museum of Finland, the Finnish Museum of Natural History, the Ateneum Museum, Helsinki Art Museum and the soon-to be completed Oodi Central Library. The centrepiece of the new museum is a 2,200-square-meter gallery space created beneath the Lasipalatsi square which will offer the curators of Amos Rex the opportunity to accommodate large scale works of art and performance, and to stage exhibitions, installations and performance in a hugely flexible space with a high degree of technical control.

MARK LITTLE, from page 11

XML, but how many of your team members work with XML? (again, see No. 3) Integrations with other systems (time- keeping, financials, etc.) are not included. Finally, with more employees using smartphones and tablets in and out of the office, large Excel spreadsheets become clumsy and difficult to work with on a small screen. “Laying out a schedule of work in Excel isn’t difficult, but how do you find out if the employees assigned to perform the work are available? Many firms will keep this information in yet another Excel file. What happens if the project is pushed back or delayed?”

2)Lack of collaboration. Excel doesn’t provide you with an easy way to share your file and allow other team members to make changes. Ultimately, one person must be responsible for merging in all of the various updates. Excel also doesn’t allow you to automatically notify collaborators when the file has been updated. 3)Expertise needed. Most computer-savvy employees can use the basic functions in Excel (adding, grouping, etc.). However, to get the most use out of Excel, your employees would need to know how to create pivot tables, manipulate/search/find data across multiple tabs, and master the advanced Excel for- mulas. This type of expertise (or training) can be expensive and doesn’t easily translate to the rest of the team. 4)Time tracking is difficult. A lot of firms use Excel as a timesheet tool. Getting this data into the project manage- ment Excel file is cumbersome and tedious at best. 5)Can’t forecast resources and allocations. Laying out a schedule of work in Excel isn’t difficult, but how do you find out if the employees assigned to perform the work are avail- able? Many firms will keep this information in yet another Excel file. What happens if the project is pushed back or delayed? Keeping these sources in sync is difficult and time consuming. 6)No reporting. Sure, you can create some basic charts and analysis (see No. 3), but Excel isn’t going to give you the infor- mation you need to make proactive decisions during or after your project has been completed. 7)Doesn’t play well with other software or mobile devices. Excel has added the ability to import and export data via

Are you struggling to manage your projects with Excel?

With a cloud-based mobile-friendly solution such as ProjectBoss, you can avoid these headaches and have one easy-to-use platform to handle all your project and business management needs. And yes, you can even import your legacy data into ProjectBoss from your old Excel files. MARK LITTLE has nearly 20 years of experience in the technology arena, primarily as a software engineer. Prior to becoming a co- founder and chief technology officer of ProjectBoss, Mark worked on key projects at companies such as JPMorganChase, Oracle, and ThermoFisher Scientific. He can be reached at mark@projectboss.net.

THE ZWEIG LETTER October 22, 2018, ISSUE 1269

Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12

Made with FlippingBook Annual report