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June 15, 2016


Means and Methods: Sword or Shield?

In conjunction with Brooklyn Law School

At this Symposium event, which also served as a CLE course for City employees, participants explored the term “means and methods” within the context of the construction contract and construction projects.  This event specifically focused on a Town+Gown research project that had undertaken the task of unpacking and analyzing various relationships on construction projects by subjecting “means and methods” contractual provisions to legal analysis, in the context of historical practice, risk shift conventions and regulation, in order to provide a foundation for future research projects related to risk analysis and management.

In the construction contract between owner and contractor, the term “means and methods” is a term of art, most often not defined in the contract, and used in practice by parties to advance and protect their respective interests.  Researchers and practitioners have noted the adversarial nature of participants “on the ground”, which is the result of risk shifting contract provisions and regulations and case law interpretations over the years. The historical movement away from the “master builder” into the modern specialized world of participants, many of whom have been professionalized and regulated, may also explain some of the bases for litigation and the adversarial nature of the industry. The historical analysis of the term began within the law of agency, focusing on the nature of “independent contractor”, as it evolved through early cases in tort law before governmental regulation and later into contract law, with the advent of professionalization of the architect and the promulgation of the early standard contracts by the American Institute of Architects.  Later state and federal regulations of construction participants and workplace safety added another level of complexity as many of the cases drew upon earlier tort and contract case law.

With interviews of construction industry professionals to supplement the legal analysis, the research concluded that, the sophistication of contracting has intentionally evolved, shaped by rational actors in the industry and the courts, and the continued use of the undefined term “means and methods” functions as a risk shifting device from which the owner appears to benefit the most.  Whether “means and methods” works as a shield or a sword appears to depend on the facts of the particular harm that resulted on the project so that analysis of case law revealed little conceptual structure to the term. The increasing sophistication of contract forms and provisions, linked with insurance products, in an environment of evolving advances in building technology and project service delivery methods, amid variance in laws governing construction, further hindered the ability to pin down the definition of the term. In view of the continued use of the undefined term and interview results that suggested that there is a need to define the term in light of dramatic inconsistencies of understanding of the term, the project included a survey instrument for distribution across the industry to identify issues for deeper understanding.  At this event, the researcher asked some of the survey questions of cross-section of industry practitioners on the multi-disciplinary panel.  The conversation confirmed the findings of the completed research, with participants suggesting further avenues for research in addition to fielding the survey instrument widely.