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A Q&A with Brian Perlberg, Senior Counsel of ConsensusDocs and AGC of America

In an exclusive interview with Who’s Who Legal, Brian Perlberg discusses his role at ConsensusDocs, the qualities he looks for when instructing external counsel and the challenges of fostering innovation within the construction industry.

WWL Construction 2017 - B Perlberg

Brian Perlberg is senior counsel for construction law and contracts for AGC of America, where he handles all construction law and contract matters. He also serves as the executive director and senior counsel for ConsensusDocs, a coalition of 40 leading construction organisations. Prior to joining AGC, he served as general counsel for the Design-Build Institute of America (DBIA). Mr Perlberg is a member of the bar for the United States Supreme Court, Maryland, and District of Columbia.

Tell us about your role at ConsensusDocs.

I am the lead in-house counsel for all construction law and contract matters for Associated General Contractors of America (AGC), the oldest and largest commercial builder association in the US. I also serve as the executive director and senior counsel for ConsensusDocs: a unique coalition effort that includes 40-plus construction associations and publishes best practices standard construction contracts, aimed at getting better project results for everyone. 

What are the main qualities that you look for when instructing external counsel?

I work with external counsel who are volunteering their time to give back to the construction industry that they serve, so I look for dedication to give back to the industry. And it sounds simple, but I like to work with people who are nice and make reliable commitments. 

Tell us about any projects that you have worked on recently. Which law firm(s) did you hire?

ConsensusDocs just recently published a new integrated project delivery (IPD) agreement that incorporates lean principles. It has already been used successfully on a US$55 million project in Michigan. It is incredibly gratifying to get something out the door that is cutting-edge, and you hear that it is being used in the field successfully. We had an all-star group working on the project including the foremost expert in lean construction from Boldt construction. Other key contributors were from Faegre Baker Daniels, Quarles & Brady, the in-house team at DPR Construction and Hinckley Allen Snyder.  

What made you decide to pursue a role in-house rather than in private practice?

I became a lawyer because deciding contentious issues based upon fairness and in an orderly matter is so superior to deciding by clubbing people over the head with a bat. As an in-house counsel at an association, I am able to leverage making a positive impact at the macro level. I thoroughly enjoy being at the intersection of law and policy. 

You have previously commented that “ConsensusDocs solves the Gordian knot of perceived bias by giving all the stakeholders in the construction process an equal seat at the table.” What are the main legal challenges that you tend to face when trying to achieve this goal?

The key is laying down simple and clearly communicated ground rules, which for us is establishing contracts that do what is best for the overall project, not just a single party. Once everyone buys into best practices and fair risk allocation, and you create trust within the group, the group basically self-regulates. Hopefully, success breeds success. We have established written procedures, and update those procedures, but the key to success is continued strong relationships and getting new people with new ideas incorporated while still maintaining that same culture. 

Are there any recent regulatory changes or cases in the sector that have caught your attention? 

A case out of Massachusetts, Coghlin Electrical Contractors, Inc v Gilbane Building Company threatened to undo a key component of construction law called the Spearin Doctrine, which creates an implied warranty for design plans. A lower court basically threatened to end the doctrine, but thankfully an appellate court had a much better-reasoned decision that, while raising some issues to the status quo, appears to be manageable.

How do you see the construction industry developing over the next few years?

Thankfully commercial construction has been growing and continues to grow. We definitely need more investment in our infrastructure, but unfortunately nobody seems to want to pay for it adequately. After recovering from the great recession, which for construction might better be described as a depression, the industry’s appetite for litigation has curtailed and I don’t see claims and litigation returning to pre-recession levels, and certainly not pre-recession billing levels for private practice law firms. Companies want to do more in-house and overall become more efficient to build a better mousetrap with less traps and more win-wins with good completed projects. Better technology, including BIM and 3D printing, will grow, and closing gaps with closer integration, communication and collaboration seems to have taken hold. 

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