Published: March 10, 2017

A recent decision from the Southern District of Florida heeds warning for Contractors and Owners to strictly comply with the terms of a payment bond.  See Arch Insur. Co. v. John Moriarty & Associates of Florida, Inc., 2016 WL 7324144 (U.S. Dist. Ct., S.D. Florida) December 12, 2016.  Here, the General Contractor’s failure to comply with the terms of the payment bond resulted in the rejection of a nearly $1,000,000 demand for completion costs under subcontractor’s performance-and-payment bond.

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Published: January 31, 2017

Economists are predicting a chill in the high-end rental market, which was previously experiencing a nation-wide boom in recent years as young, urban high-earners remained disillusioned by and recovered from the 2009 financial crisis and wealthy retired boomers turned to cities for empty-nest alternatives.

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Published: January 6, 2017

Significant amendments to Pennsylvania’s Mechanics’ Lien Law took effect on December 31, 2016, creating new rights and obligations for owners, contractors, subcontractors, and suppliers on qualifying construction projects.

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Published: January 5, 2017

The New Hampshire Supreme Court recently held in the case of City of Rochester v. Marcel that the statute of limitations applies to municipalities in contract actions, providing contractors, engineers and architects with a defense not previously available. 

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Published: January 4, 2017

A recent Massachusetts State Court decision denied a General Contractor’s claim for an equitable contract adjustment due to extreme winter conditions. See Cumberland Farms, Inc. v. Tenacity Construction, Inc., C.A. No. 2015-CV-01589-BLS2 (Mass. Super. Nov. 16, 2016)(Sanders, J.). The General Contractor alleged that harsh weather conditions during the Winter of 2014 delayed two construction projects. The Contractor claimed an “equitable adjustment” of the Master Contract, to receive additional payments from the Owner for diminished productivity and decreased efficiency. 

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Published: May 13, 2016

Summary On May 11, 2016, the Occupational Safety and Health Administration (OSHA) unveiled a final rule requiring electronic reporting of workplace injuries and illnesses, requiring employers to inform workers of their right to access injury and illness data, and prohibiting retaliation against employees for reporting on-the-job injuries and illnesses. The new reporting requirements take effect in January 2017; however, the anti-retaliation provisions take effect August 10, 2016.

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Published: April 20, 2016

The Federal Transit Administration (FTA) has proposed new policies on the applicability of the Buy America provisions in the Fixing America’s Surface Transportation (FAST) Act.  Under the proposed policies, the Buy America provisions in the FAST Act do not apply to contracts entered into before October 1, 2015.  FTA also proposed public interest waivers for contracts entered into between October 1, 2015 and December 4, 2015, and for some contracts entered into after December 4, 2015.  For contracts entered into after December 4, 2015 that do not fall within the scope of a gen

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Published: February 23, 2016

Maryland recently reaffirmed application of the “economic loss doctrine” to damages sought in construction disputes in Balfour Beatty Infrastructure, Inc. v. Rummel Klepper & Kahl, LLP, No. 496, Sept. Term 2014, 2016 WL 360875 (Md. Ct. Spec. App. Jan.

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Published: December 1, 2015

You cannot open a trade publication without reading about the shortage of skilled labor. Carpenters, welders, steel workers, electricians, project managers and estimators are in short supply. An Associated General Contractors of America survey found that 74 percent of the respondents believe there is a crunch in skilled trades and 53 percent report an inability to hire needed professionals; other surveys indicate the shortage is expected to worsen in coming years.

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Published: October 1, 2015

The Massachusetts Attorney General is taking action to ensure that general contractors working on public construction are complying with state requirements to use DBE/MBE subcontractors.

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Published: October 1, 2015

A Pennsylvania appellate court recently refused to enforce a “no damages for delay” clause and upheld an award of delay damages against a school district where the district actively interfered with a general contractor’s work.

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Published: October 1, 2015

Contractors and subcontractors who are aggrieved by erroneous information on construction documents may have an easier time proving an architect or other design professional made a negligent misrepresentation that harmed them financially under a recent decision from the Pennsylvania Superior Court.

In Gongloff Contracting, LLC v. L. Robert Kimball & Associates, the appellate court ruled that plaintiffs no longer need to expressly identify in their pleadings the design professional’s specific representations they allege to be erroneous.

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Published: August 26, 2015

The Pennsylvania Department of Transportation (“PennDOT”) expects to award bids to develop compressed natural gas (“CNG”) refueling stations throughout the state by the end of 2015 as the agency and its counterpart in Maryland increasingly employ Public-Private Partnership (“P3”) laws to align with private partners to facilitate new transportation projects.

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Published: August 26, 2015

Substantial completion is described in AIA Document A201™-2007 as “the stage in the progress of the Work when the Work or designated portion thereof is substantially complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work, in its entirety for its intended purpose.”  The provision often includes a laundry list of tasks that, if incomplete, prevent the work from being declared substantially complete.  Substantial completion is the triggering date for payment of retainage or, on the flip side, assessment of liquidated damages.

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Published: August 1, 2015

Pennsylvania’s Contractor and Subcontractor Payment Act (“CASPA”) is a powerful tool for contractors and subcontractors to ensure that they receive prompt payment for their work and may entitle them to expansive remedies, such as attorneys’ fees and penalties. The Pennsylvania Supreme Court recently ruled that this Act does not apply to construction projects where the owner is a governmental entity.

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Published: July 9, 2015

Pay-if-paid clauses provide that a general contractor is not required to pay subcontractors unless and until it receives payment from the owner.  The ConsensusDocs Standard Agreement 655 provides the following example:

Receipt of payment by the Contractor from the Owner for the Subcontract Work is a condition precedent to payment by the Contractor to the Subcontractor.  The Subcontractor hereby acknowledges that it relies on the credit of the Owner, not the Contractor, for payment of Subcontract Work.

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Published: July 1, 2015

The American Arbitration Association recently updated its Construction Industry Arbitration Rules and Mediation Procedures, effective July 1, 2015. There are six new rules, some of which are borrowed from litigation procedures.Highlights of the revisions include:

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Published: June 1, 2015

Construction contracts typically provide for changes in the scope of work through change orders, construction change directives and orders for minor changes.  AIA Document A201-2007 and the ConsensusDocs Standard Agreement similarly define a “Change Order” as a written instrument or order signed by the owner and the contractor that reflects the parties’ agreement to a change and any adjustments in the contract price or time.  By contrast, a “Construction Change Directive” (AIA A201-2007) or “Interim Directed Change” (ConsensusDocs) is a written order unilaterally issued by the own

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Published: May 1, 2015

P3 projects in Washington, D.C. are now much more viable after new legislation took effect on March 11, 2015. The Public- Private Partnership Act of 2014 establishes a defined procurement process for P3 projects and a new office to administer them in the nation’s capital. The legislation was unanimously passed by City Council on December 3, 2014, and was approved by Mayor Muriel Bowser a few weeks later.

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Published: March 25, 2015

This clause defines the scope of work in a construction project and the definition varies by source.

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Published: December 1, 2014

Consistent with statistics issued by the Centers for Disease Control and Prevention (“CDC”), outbreaks of Legionnaires’ disease continued to sweep the nation in 2015. During the summer, 12 people died and more than 100 became ill during an outbreak traced to a cooling tower on a recently renovated hotel in New York City. This fall, another dozen died at a Quincy, Illinois veterans’ home. The CDC estimates that the disease annually causes between 18,000 and 30,000 illnesses – approximately 10 percent of which are fatal.

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Published: December 1, 2014

Pennsylvania recently enacted a statute that will bring sweeping changes to its mechanics' lien law and substantially impact the rights of both owners and contractors. The new statute, Act 142 of 2014, features an online directory for lien-related notices on certain projects. This directory will allow owners to more easily assess their mechanics' lien exposure on projects, and also allow contractors (and others) to more easily search lien records. The directory is slated to come online by the end of 2016.

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Published: December 1, 2014

Bid decisions by the Massachusetts Attorney General’s Office (“AGO”) are not binding and government agencies are not required to follow them. As a result, contractors face a dilemma when protesting a bid award challenge: file a bid protest with the AGO, or go directly to court and seek an injunction. An AGO challenge is more cost effective, however, it does not provide any finality.

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Published: August 4, 2014

The New Jersey Supreme Court has affirmed a state agency’s decision to award a contract to the lowest bidder even though the bid did not comply with the scope-of-work requirements of a request for proposal.  Matthew J. Barrick, Jr. v. State of New Jersey, et al., (A-8/9-13) (072795) (N.J. Supreme Court July 23, 2014).

To read the full story, please click here.

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Published: June 19, 2014

The American Arbitration Association (“AAA”) unveiled supplementary rules for construction proceedings that seek to remove some uncertainty from the resolution of construction disputes.  The new rules, which took effect on June 15, 2014, permit the parties to predetermine certain aspects affecting the cost and time necessary to resolve their construction dispute.  The parties may elect to place limits on the time within which the arbitration must be completed and the number of days to hold hearings.  Perhaps most important, the cost of the arbitration may now be capped in adv

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Published: June 12, 2014

On June 9, 2014, the United States Supreme Court, in CTS Corp. v. Waldburger, ruled that an individual state’s statute of repose is not preempted by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). Therefore, a state’s statute of repose may bar certain individual state tort claims for damages sustained after a particular number of years since the contaminating act.

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Published: March 24, 2014

Beginning on March 24, 2014, federal contractors that have a government contract or subcontract of $50,000 or more and have 50 or more employees must implement new affirmative action programs, including: (1) asking in every job application whether the applicant has a disability; (2) keeping track of the number of applicants and newly hired employees who self-identify a disability; (3) striving for a 7 percent disabled workforce, and (4) submitting a new affirmative action program that includes recruiting efforts toward attaining a 7 percent disabled workforce goal.

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Published: January 20, 2014

In an attempt to strengthen its Crystalline Silica exposure rule, on September 12, 2013, OSHA proposed significant changes that could result in higher compliance costs and may require additional risk management strategies for affected industries. 78 Fed. Reg. 56274. The more stringent proposed rule will affect the construction and manufacturing industries, as well as operations using industrial sand products, such as hydraulic fracturing in the oil and gas industry.

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Published: November 22, 2013

On November 19, 2013, the Associated Builders and Contractors (“ABC”) filed a lawsuit seeking to prevent the implementation of new federal regulations affecting employers with more than 50 employees and with more than $50,000 in federal government contracts. The new regulations include a 7 percent disabled workforce goal and more stringent employer tracking of employment statistics. ABC has filed for an injunction to prevent the new regulations from taking effect on March 24, 2014.

To read the full article, please click here.

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Published: March 28, 2013

In a decision under the Uniform Commercial Code (“UCC”) that could apply in any state, the Massachusetts Supreme Judicial Court (“Court”) ruled this month that when a general contractor agrees to an assignment of payments to a subcontractor’s lender, and the general contractor mistakenly makes payments to the subcontractor, the general contractor is liable to the lender for all mistaken payments, even if all payments exceed the lender’s damages. See Reading v. Co-Operative Bank v. Suffolk Construction Company, Inc., 464 Mass. 543 (2013).

Facts:

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Published: March 12, 2013

Continued budget cuts likely will trigger construction issues and disputes in the coming months and years. As a result, contractors should take precautions on federally funded construction projects.

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Published: February 22, 2013

Pennsylvania's General Assembly recently enacted the Public Works Employment Verification Act (the "Act" or "Verification Act") (43 P.S. §§ 167.1 et seq.), aimed at ensuring that contractors and subcontractors on public works projects within the Commonwealth comply with federal employment eligibility requirements.

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