Showing 86 posts from 2012.

Time Is Of The Essence In A Subcontract Unless...

Factual Background – Shifting Completion Date(s)

A New York appellate court decision, Bast Hatfield, Inc. v. Joseph R. Wunderlich, Inc., 910 N.Y.S.2d 256, 78 A.D.3d 1270 (N.Y. 2010) (“Hatfield decision”) demonstrates the importance of ensuring that the completion date set forth in a subcontract is coordinated with that in the prime contract and is amended to reflect any changes to the overall project completion date. Failure to do that may negate a prime contractor’s ability to effectively assert that the subcontractor’s performance was not timely.    Read More ›

Money, As Well As Time, For Adverse Weather

A recent Armed Services Board of Contract Appeals (ASBCA) decision, DTC
Engineers & Constructors, LLC
, ASBCA No. 57614, 12-1 BCA ¶ 34,967, illustrates the necessary predicate for recovery of both time and money for weather delays following a government caused delay. Read More ›

FOIA Requests As Legal Business Espionage


The economic downturn in the construction industry did more than create razor-thin profits – it also raised the stakes of competition by introducing specialized Freedom of Information Act (“FOIA”) companies that competitors hire to obtain competitors’ commercial and financial information in an effort to obtain an edge for future contract awards. A recent case, Honeywell Technical Solutions v. Department of the Air Force, 779 F.Supp.2d 14 (D.D.C. 2011), illustrates how FOIA can be utilized by competitors seeking a competitive advantage and how best to protect the contractor from this legal form of business espionage.    Read More ›

Unambiguous Releases - Can They Be Avoided?

Claim releases are a pervasive part of federal government contracts. Most government change orders include language limiting the contractor’s right to make a later claim for delay or cumulative impact. This release language is frequently broad enough to cover future claims that are impossible to price and may be completely unanticipated at the time the change order is signed. This, in turn, can lead to disputes about the scope of the release. Releases may also be required to finalize termination for convenience settlements and to obtain final payment.    Read More ›

CGL Coverage - "Occurrence" Defined In Ohio


“Occurrence,” though a simple word at first glance, is the focus of many insurance coverage disputes. A term of art in insurance contracts, the issue of what constitutes an “occurrence” is often hotly contested because it can help determine whether coverage under that policy exists. “Occurrence” is often defined as an accident, including continuous or repeated exposure to substantially the same harmful conditions. But to determine what constitutes an “occurrence” in a specific factual context, it is important to examine both the particular state law governing the insurance policy and the language of the insurance policy. In some states such as Ohio, the courts have held that a defective construction or workmanship claim is not a claim for “property damage” caused by an “occurrence” and is not covered under a CGL policy.    Read More ›

Skip The Site Visit - Lose A Differing Site Conditions Claim


Surprises happen on construction projects. Contracts with the federal government, a large and sophisticated owner, contain clauses from the Federal Acquisition Regulation, (“FAR”), that address the risk of the unforeseen and unanticipated. For example, the Changes clause at FAR §52.243-4 allows the government to make changes in the work within the general scope of the project. The government can direct acceleration of the work or order changes in the method or manner of performance of the work to accommodate unexpected developments. The Differing Site Conditions clause at FAR §52.236-2 shifts to the government the contractual risk that overcoming certain unexpected site conditions may require extra work by the contractor and extra expense to the government.    Read More ›

Recovery of Legal Fees and Consultants' Expenses in REAs

Change Happens

One constant on most construction projects is change. Most construction contracts contain a specific clause (or clauses) discussing procedures and requirements that the project participants should follow in order to address these changes. Changes clauses are found in standard industry construction contracts, private construction contracts, and in the regulations and contract clauses governing federal government contracting. Relying on these contract provisions, the parties can more effectively manage and administer changes to the construction project, and their corresponding cost and time impacts. Read More ›

Practical Impacts of Design-Build on the Design Engineer

Project delivery using Design-build has become increasingly popular over the last thirty years. Owners have recognized the advantages of using a single source of responsibility for a project’s design and construction.   Many contractors have recognized the popularity of design-build and have made adjustments to their business model allowing them to offer this one-stop system for project delivery.   Architects and engineers also recognize that, unless they want to avoid this ever growing segment of the project design market, they too must adapt to working directly with the contractor. 

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Stuck Inside These Four Walls: Recognition of Sick Building Syndrome Has Laid The Foundation To Raise Toxic Tort Litigation To New Heights

Much has been written about poor indoor air quality (IAQ) over the past twenty years.  Poor building design and construction defects, among other factors, have sometimes led to poor IAQ and related health issues such as Sick Building Syndrome.  Attached to this post is a copy of Gene Heady’s law review article Stuck Inside These Four Walls: Recognition of Sick Building Syndrome Has Laid the Foundation to Raise Toxic Tort Litigation to New Heights, 26 Tex. Tech L. Rev. 1041 (1995).  Gene’s article won the Outstanding Comment Award, conferred in 1995 by the Texas Tech Law Review.  Over the years, copies of Gene’s article have been requested and cited numerous times.  The Texas Tech Law Review has graciously given us permission to post it here.  As the construction industry embraces green building, and as project participants seek Indoor Environmental Quality Credits for LEED certification, we are hopeful that the negative impacts associated with poor IAQ will be greatly diminished.

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Applications for Progress Payments Must be Truthful and Accurate to Avoid Allegations of Fraud and False Claims

To combat fraud, the federal government has available an arsenal of criminal and civil statutes that carry severe penalties for contractor wrongdoing.  Among its arsenal is the civil False Claims Act (FCA)—one of the government’s more effective weapons to combat fraud and deter false claims.  Any person who knowingly submits a false claim to the government or causes another to submit a false claim to the government or knowingly makes a false record or statement to get a false claim paid by the government may be liable under the FCA and can be severely punished.  Under the FCA, a party submitting a false claim to the government is liable for a civil penalty of between $5,500 and $11,000 and three times the damages that the government sustains.

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