Construction Law Blog
Blog Disclaimer: The content provided on this website is for informational purposes only and is not legal advice. Transmission of this information is not intended to create, and receipt does not constitute, an attorney-client relationship. The information provided is intended for general information which may or may not reflect the most current developments. Read More
On July 29, 2014, the Senate passed the Highway and Transportation Funding Act of 2014, following the House of Representatives' passage two weeks earlier. The Act was signed by the President on August 8, 2014.
Small Business Administration Updates Small Business Standards - Increasing the Definition of “Small”
If your company participates in any small business, federal government procurement program, or certain state procurement programs such as the Federal Disadvantaged Business Enterprise (DBE) Program, the 8(a) Program of the Small Business Administration (SBA), or Washington State’s Minority or Women-Owned Business Enterprise (M/WBE) Programs, your size status may have changed on July 14, 2014, as a result of an update to the SBA’s small business standards. The majority of these small business procurement programs utilize SBA’s “Table of Small Business Standards” to define the government’s limits for what constitutes a small business. As the definition of “small” varies by industry and scope of work, this Table is based on the 2012 North American Industry Classification System (NAICS), which assigns six-digit codes to businesses based on their primary activity. In turn, each NAICS code is assigned either a revenue limit (based on average annual receipts) or average employment (number of employees). For example, for the past few years (since 2008), the NAICS code for framing contractors is 238130, and provided for a $14.1 million average revenue limit. Thus, any framing business with an average revenue (over the past three years) of less than $14.1 million met the definition of a “small business.”
Washington, D.C. is known for playing host to a variety of complex people and institutions. It should come as no surprise then that the modern construction lien - a complicated legal mechanism itself - was conceived in response to the establishment of this important American city.
President Obama, on Thursday, July 31, 2014, signed an Executive Order that requires contractors bidding on federal government work to disclose labor law violations and gives screening assistance to federal agencies awarding contracts. Termed the “Fair Pay and Safe Work Places Executive Order” will apply to companies pursuing federal contracts worth more than $500,000 and becomes effective in 2016. Government statistics indicate this executive order will affect roughly 24,000 businesses that employ 28 million workers on federal contracts. According to a White House fact sheet: “The Executive Order will ensure that the worst actors, who repeatedly violate the rights of their workers and put them in danger don’t get contracts and thus, can’t delay important projects and waste taxpayer money.”
Measuring Date for 90-Day Notice Under the Miller Act is the Date When the Last Equipment was Furnished in Open Book Account
On June 20, 2014, the Ninth Circuit Court of Appeals held that the measuring date for the 90-day notice requirement for a Miller Act claim in an open book account is the date when the last materials or equipment were furnished. As discussed below, this decision could have significant impacts on contractors' exposure to huge, unforeseeable Miller Act claims.
As readers of this blog can corroborate, construction is often a risky business. Defending against a lawsuit is just one potential hazard that contractors, in particular, must bear in mind when carrying out a project. As with many classes of risk, contractors can attempt to avoid this burden by purchasing insurance-such as a Commercial General Liability (CGL) policy-and shifting the responsibility to someone else.
The Limitation of Liability Clause is an increasingly important aspect of contracts involving design professionals. The Clause provides a cap on damages in the event of a breach. On its face the Limitation of Liability Clause seems to be one-sided and out of place in an agreement between responsible professionals. However, it appears with significant regularity and understanding its effect is essential for the project owner.
Most public works construction projects in Washington require public agencies to withhold a certain percentage of each progress payment as retainage until the completion of the project. In Washington, retainage of 5% is established as a trust fund for the protection of potential claimants, including subcontractors, suppliers, and laborers. Once a retainage bond is submitted in lieu of the public agency withholding retainage, any retainage previously withheld is released, and any future payments are for the full amount.
Ways to Make the Construction Dispute Resolution Process More Efficient and Less Expensive - Part II
This post is Part II of our discussion on resolving construction disputes less expensively and more efficiently. Read Part I here. Arbitration is a form of dispute resolution that is particularly well suited to construction disputes. Here are some tips on how lawyers and stakeholders can make things move quicker in arbitration:
This post is the first of two blogs about making the dispute resolution process more efficient in construction-related matters. In our view, construction is well suited to streamlining the resolution process, particularly when experienced lawyers and judges / arbitrators are involved.