Empower Your Arbitrator to Allocate or Award Attorneys' Fees

Claims and disputes involving construction projects tend to be technically complex and factually intensive.  As a result, the resolution of construction claims and disputes can be time consuming and costly.  In prosecuting or defending claims, one question that always arises is “Can I recover my attorneys’ fees if I win?” The traditional “American Rule” is that the winning party—referred to as the “prevailing party”—may not recover attorneys’ fees unless recovery is statutorily or contractually authorized via a “fee-shifting” or “prevailing party” attorneys’ fees provision.  Under the American Rule, each litigant must pay its own attorneys’ fees.  If there is a statutory or contractual fee-shifting provision in play in a lawsuit then the judge will sort out the respective rights of the litigants.  Another question that arises is “Who sorts out the attorneys’ fees issue if I arbitrate my construction claim rather than litigating the claim in a court proceeding?”   

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What are the risks and rewards of being certified as a small business?

Stephen Kelleher answers this question. Please read his comments in Associated Builders and Contractors, Inc.'s March 2014 issue of Construction Executive.   Read More ›

The Implied Duty of Good Faith and Fair Dealing Lives!

One of the heralded benefits to an owner using the design-build project delivery system is the single point of responsibility. Consistent with the scope of work, the owner is able to shred itself of implied warranty liability for the accuracy of the plans and specifications for the project. However if the owner wants a reasonable price for the project there are limits to risk shifting. Even if the owner is able to shift significant risks to the design-build contractor, it must provide accurate information and it has the duty to act in good faith and fair dealing with the design-build contractor if the information it supplied is inaccurate.    Read More ›

Why Contemporaneous Project Scheduling Is Important

A good project schedule may be critical to managing a project. When the project’s progress is impacted, the schedule can be revised to show the changes and their effect on the project. Contemporaneous schedule updates are not only good practice; they may also be mandated by the project’s contract. Often, the contractor is obligated to provide schedule updates at regular intervals during a project. If a schedule is not appropriately revised, its usefulness may be diminished, and the contractor faces not only risks associated with project completion but also challenges in advancing and defending against delay claims. Contractors need to anticipate that a court or board may express a preference for contemporaneously updated schedules over after-the-fact as-built schedules when assessing delay claims. The decision of the Armed Services Board of Contract Appeals, Hedgecock Elec., Inc., ASBCA No. 56307, 12-2 BCA ¶ 35,086, illustrates this point.     Read More ›

Lien and Bond Notice Pitfalls - Details Matter

“Did you send your statutory notices?” This question should be familiar to any firm seeking help in pursuing a bond or lien claim for nonpayment. Seasoned contractors also know that it is just the beginning of the inquisition. “When did you serve the notices?” “How did you serve hem?” “Where did you send them to?” “Do you have proof of delivery?” “When was your last date of work?” “Was it contract work or punch list work?” The questions may appear intolerably nitpicky, honing in on very specific and seemingly arcane details. But rest assured that there may be a very good reason for these questions. When it comes to bond and lien claim enforcement, the details matter. They really matter. Contractors, subcontractors, and suppliers that miss the details can pay a severe price.    Read More ›

Joint Venture Participants - Credit for Past Performance

In a bid protest decision regarding a “best value” award, the Government Accountability Office (“GAO”) sustained the protests by disappointed offerors on the grounds that the procuring agency unreasonably credited a joint venture awardee with the corporate experience and past performance of the separate affiliates of one joint venture partner, where the record did not show that the affiliates would be involved in the contract performance.      Read More ›

How to Pursue Out-of-State Judgments

Periodically, we receive calls from contractors and suppliers who have obtained judgments against debtors in other states only to find out that the debtors have relocated to, set-up shop, or have assets in Georgia. These “judgment creditors” want to know if there is anything that can be done to collect on their out-of-state judgments in Georgia. Fortunately, the answer to this question is yes!  Read More ›

False Claims Act - Retaliatory Discharge Claims

Recently, the United States District Court for the Southern District of Mississippi issued a detailed ruling dismissing an employee’s retaliatory discharge claim under the Federal False Claims Act (“FCA”). See McCollum v. Jacobs Engineering Group, Inc., No. 3:13-cv-866, 2014 WL 218441 (S.D. Miss. 2014). 

One Sentence Takeaway

While a whistleblower retaliatory discharge claim allows an employee to recover for a wrongful discharge, numerous factors will defeat the claim, particularly where the discharge was mandated by the applicable contract or where there is a documented history of performance deficiencies by the employee.      Read More ›

Fee Allocation in the Schedule of Values

When contractors prepare their budget for a project, they often allocate costs among various line items. This allocation typically takes the form of a schedule of values (“SOV”), which is often presented to the owner (or general contractor, in the case of a subcontractor) for approval prior to submitting the first payment application. The schedule of values is vital in tracking the progress of the work for payment purposes. Many industry contract forms provide for a percent-complete analysis of the work typically on a monthly basis. The cumulative percent complete is then applied to the current contract amount to determine the amount due. But development of line items and allocation of costs among those line items present risks that contractors should consider.       Read More ›

Is Your Arbitration Clause Enforceable?

Is your agreement to arbitrate disputes ironclad? You may be wrong. A recent Hawaii Court of Appeals decision proposes a modification to the theory to which many have subscribed:  ambiguous text renders the arbitration agreement as hollow. In this case, determining whether the arbitration agreement was enforceable hinged on indirect evidence of the parties’ intent to be bound by the agreement to arbitrate, not merely the provisions in the contract.      Read More ›