Monthly Archives: April 2014

First Aid / CPR / AED / Bloodborne Pathogen Course – June 24, 2014

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In the busy summer months, don’t forget to make sure you have at least one trained employee on every job site who can give life-saving care in an emergency. Knowing what to do and being prepared in case of a medical emergency can mean the difference between life and death. If your company needs instruction in life-saving techniques, please join us on June 24th. Please see below for details. To make a reservation, please contact Mary Ellen Higgins at 502-459-9800 or

Course Title: First Aid / CPR / AED / Bloodborne Pathogen

Date: June 24, 2014 at Builders Exchange of Kentucky, in Louisville, KY.

Time: 8:00a.m. – 1:30p.m.

Trainer: Bart Leist, Owner, Compass Safety

Cost: $85.00 per participant

Course Description: The Emergency Care and Safety Institute (ECSI) First Aid, CPR, AED, and Bloodborne Pathogen course is designed for all job-site workers and supervisors. During the course, an instructor conducts video-based lessons and works with students individually to complete their first aid, CPR, and AED skills practice and testing. The ECSI Course Completion Card is valid for two years. Bloodborne Pathogen training must be completed annually.

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87th Annual Gala Recap and Picture Gallery

Builders Exchange of Kentucky celebrated its 87th birthday in style at The Olmsted on March 27th! The annual gala was shared by more than two-hundred guests and was filled with many memorable moments. The evening’s festivities began with a hospitality hour and included a silent auction of more than forty generously donated items. Nearly five thousand dollars was raised to benefit the Builders Exchange Scholarship Program.

The evening’s program included a unique perspective of Louisville’s neighborhoods offered by Councilman Tom Owen, a heartfelt tribute to John Kelly, congratulatory awards presented to two Builders Exchange retiring board members (Paul Clements and Mike Harpring), firms celebrating milestone anniversaries with Builders Exchange, and the presentation scholarships to sixteen worthy recipients.

The event was unforgettable thanks to so many people. The sponsors, the silent auction donors, the presenters, The Olmsted, and the Builders Exchange staff all worked together to celebrate the evening in style! A special thanks goes to the Builders Exchange members. This celebration is for you!

Check out the gallery below!

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John David Kelly — September 3, 1946 – March 21, 2014

John KellyJohn Kelly served as the Executive Vice President of Builders Exchange of Kentucky from 1971 to 2011. He touched so many lives in his forty year career that his legacy will be felt for decades to come. Mr. Kelly departed this life on March 21st, but has left a challenge to each person who knew him, worked alongside him, and loved him. His challenge to us is to live like there’s no tomorrow, do the right thing when no one is watching, and serve others with all our hearts!

John Kelly had a distinguished career, and was recognized with numerous and prestigious awards by peers and colleagues for his integrity, unselfish energy, support, and significant contribution to advancing the commercial construction industry. He served on several industry and community boards and committees, and volunteered countless hours to benefit others through his wise counsel and servant leadership.

Mr. Kelly was a devoted family man, valued friend, trusted confidant, and unwavering advocate of the commercial construction industry. God bless you Mr. Kelly!

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Recent Opinion Affirms Contractor Reliance on Owner Provided Geotechnical Information

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by: Zachary D. Jones


In Metcalf Construction Company v. United States, the United States Court of Appeals for the Federal Circuit added further support for contractors’ reliance on owner provided geotechnical data. 2014 U.S. App. LEXIS 2515, 2014 WL 519596 (Fed. Cir. Feb. 11, 2014). The decision dealt, in part, with the federal government’s standard differing site conditions clause, 40 CFR 52.236-2; however, the decision may have some impact beyond federal contracts since many other standard contracts employ similar language.

Metcalf Construction Company was the successful bidder on a contract to design and build 188 housing units at Marine Corp Base Hawaii. The Government provided Metcalf and the other bidders with “preliminary” soils information as part of the request for proposals. The bidders, however, were instructed to conduct their own independent investigation of the site. One wise bidder submitted a pre-bid question asking: “This requires an independent investigation after award. . . . Should we infer from this that any unforeseen soil conditions or variances from the Government’s soils report will be dealt with by change order?” The Government responded: “Yes, if there’s a major disparity from the Government’s soil reconnaissance report.”

Metcalf encountered soils significantly different than the government’s soil report indicated shortly after beginning construction on the project. Specifically, the soils were more expansive and susceptible to swelling than indicated in the Government’s preliminary report. In fact, Metcalf’s geotechnical engineer concluded that the building’s foundation would fail under the actual soil conditions unless additional measures were implemented. Accordingly, Metcalf submitted a request to the Contracting Officer seeking compensation for the additional work required to address the actual soil conditions; work that would not have been required if the soils were as the Government’s “preliminary” report indicated. The Contracting Officer denied Metcalf’s request and Metcalf was forced to file suit in the United States Court of Federal Claims under the Tucker Act, 28 U.S.C. §1491(a)(1), and the Contract Disputes Act, 41 U.S.C. §§601-13.

Metcalf lost at trial. The trial court read the contract requirement that Metcalf conduct its own independent investigation as, effectively, placing the risk of unforeseen site conditions on Metcalf. It also found that the pre-bid question and answer—where the Government acknowledged differing site conditions would entitle the contractor to a change order—was nullified after the contract was executed because of Metcalf’s obligation to investigate the site. Metcalf did not accept the trial court’s decision and, instead, appealed to the United States Court of Appeals for the Federal Circuit.

The appellate Court recognized the correct allocation of risks in the contract. The Court reminded the Government of prior decisions noting that the Differing Site Conditions clause exists to take the gamble out of bidding on projects when subsurface conditions are not fully known. It acknowledged that absent some contractual provision allowing contractors to receive an equitable adjustment when differing soil conditions are encountered, contractors would be forced to include large contingencies in their bids—contingencies that may not be needed and that would result in potential windfalls for contractors at the expense of the Government. Further, the Court pointed out the commonsense notion that there is something fundamentally distasteful about the government providing information to bidders, only to then tell the bidder they can’t rely on that information.

The Metcalf decision does not necessarily establish new law regarding the Differing Site Condition clause. Several prior decisions establish the general disfavor of geotechnical disclaimers. Despite this, many recent decisions tend to focus on contractors’ obligations to conduct reasonable site investigations. Some decisions even hold that an owner’s disclaimer of geotechnical data is enforceable notwithstanding that the contract contains a Differing Site Condition clause. To that end, Metcalf is important because it reinforces that, at least on federal contracts which incorporate 40 CFR 52.236-2, contractors may rely on geotechnical data provided by the government, even in the face of a disclaimer.

Of course, the Metcalf decision has its limits. In Metcalf the disclaimer was a little ambiguous. It stated that the “soil reconnaissance report [was] for preliminary information only.” Contractors should still be concerned if they encounter disclaimers that are less ambiguous. Further, Metcalf was a federal contract subject to standard clauses found in the Federal Acquisition Regulations. Contracts with other states, municipalities, or private owners may be subject to different interpretations under legal principles that do not apply to federal government contracts.

The cliché “The best offense is a good defense” certainly applies to contractors who are likely to face differing site condition claims. Contractors should develop a checklist before bidding on any project. That checklist should inquire whether the request for proposal or invitation to bid, specifications, and contract contain the following:

• Geotechnical/soils data
• A geotechnical/soils data disclaimer
• A Differing Site Condition clause
• Any reason to suspect adverse subsurface conditions
• The opportunity for a reasonable pre-bid site investigation

Thinking about these things before bidding on a project, like the wise bidder in Metcalf, may go a long way to ensuring you are not left holding more risk than you bargained for if adverse subsurface conditions are encountered after you get the job.

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