November 2011: Legal Issues


Legal Issues

In August, the East Coast experienced a natural disaster rarely felt in that part of the country: an earthquake that registered with a 5.8 magnitude at its epicenter in the town of Mineral, Va. And, typical of earthquakes, aftershocks followed. Among the biggest aftershocks that followed the earthquake were the realizations that even historic structures cannot defeat natural forces, and qualified masonry professionals play an instrumental role in the restoration of the visual and physical integrity of historic buildings.

Standing at 555 feet, 5.5 inches, the Washington Monument is the world’s tallest masonry structure. As the result of a crack near the top of the monument, which was caused by the earthquake, the structure is closed indefinitely. Just a few miles from the monument in nearby Alexandria is Gadsby’s Tavern, a structure built in 1792. It served as a center of social life in the late-18th century and even was frequented by George Washington and Thomas Jefferson. The tavern also was closed for a period after the earthquake, due to damage to the brick chimney. In both of these cases, qualified masonry professionals have been contacted to evaluate the extent of the damage, and to consult on the most effective means of restoring these historic places.

Federal laws exist to evaluate the preservation of historic masonry structures. The National Preservation Act, Public Law 89-665; 16 U.S.C. 470 et seq., is arguably the most extensive preservation legislation existing in the United States. In part, the Act governs federal contracts for the renovation and repair of historic structures. The opportunities for lucrative masonry contracts are expanding as many buildings constructed in the first half of the 20th century with Portland cement mortar now are historic, and eligible for listing in the National Register of Historic Places. Deterioration demands that the buildings undergo the process of repointing or tuckpointing, the process of removing deteriorated mortar from the joints of a masonry wall and replacing it with new mortar.

If you are considering bidding on a historical project, be aware of the following:

Know the legal issues. Firstly, know the rules before bidding on a project. In additional to federal projects, state and municipal contracts are being awarded for local historic buildings. Different standards and rules may exist to bid or to secure contracts to perform work on damaged historic properties depending upon whether the project is managed by federal authorities or a state agency or political subdivision of a state. Secondly, do an inventory of your insurance policies. Every historic project demands that the successful bidder or contractor selected for the project has adequate worker’s compensation and commercial general liability policies in place. Thirdly, inquire if special licenses or permits are required to be selected or awarded a competitive bid. Finally, verify the references and insurances of subcontractors in order to limit liability.

Be prepared for extensive contract negotiation. Expect to provide information on other repointing projects. Prepare to make the other projects available for inspection. Develop a set of criteria for the selection of subcontractors. While bidding the lowest price is always a consideration in the selection of a contractor to perform work on a historic building, equal if not more important is the quality of the work that is performed.

Calculate unit prices as well as a base bid for a project. Work may vary from the scope of your original bid. For example, brick repointing and stone repointing have their own unit prices. If a contractor has 20 linear feet less of stone repointing than indicated on the contract documents, but 40 linear feet more of brick repointing, it will be easy to determine the final price for the work.

Consult with a historic preservation professional. Meet with a historic architect or other professional to get advice on what you need to do to navigate through the selection process. The American Institute of Architects is a resource to locate an architect to consult with you. Know in advance whether your company needs to be interviewed and the extent of the review process prior to, during the performance of, and after the completion of the work. The investment will pay for itself once you are selected to perform masonry work on the historic structure. Don’t be uniformed as it is a certainty that, before the actual work begins on a historic project, interested parties will given the opportunity to review the proposed work and to provide comments.

The restoration project for the monument requires that workers be suspended from cables hundreds of feet in the air, while inputting information onto iPads to get exact measurements. While not every restoration project will be as dramatic as the repair of the crack in the monument dedicated to our country’s first president, each restoration will be in furtherance of the preservation movement and will provide not only bragging rights, but economic opportunities for deserving masonry professionals.

Juanita Ferguson is an associate with the law firm of Bean, Kinney & Korman in Arlington, Va. She can be reached at and 703-525-4000.

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