Construction Law Blog

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Utility Contractor Held Responsible for Damaged Underground Electrical Line

Date: October 5, 2017  /  Author: Brett M. Hill  /  Categories: Change Orders, Claims, Damages, Delay Claims, Rants and Raves, Construction News and Notes, Contracting, Construction Bidding, Government Contracts  /  Comments (0)

The Washington State Court of Appeals recently addressed an excavation contractor’s responsibilities under the Underground Utilities Damage Prevention Act (UUDPA), RCW 19.122. That statute was enacted in 2011 and imposed certain statutory duties on parties involved with projects requiring excavation.

In this case, Titan Earthworks, LLC contracted with the City of Federal Way to perform certain street improvements including installation of a new traffic signal. During the process of excavating for the traffic signal, Titan drilled into an energized underground Puget Sound Energy power line. PSE sought damages from Titan and Titan sued the City of Federal Way.

Bertha – The Tunnel is Finished, but Her Legacy Continues

Date: September 27, 2017  /  Author: John P. Ahlers  /  Categories: Government Contracts, Construction Bidding, Contracting, Construction News and Notes, Liens/Bond Claims, Delay Claims, Damages, Claims, Change Orders  /  Comments (0)

The Tunnel Boring Machine (“TBM”) known as “Bertha,” built by Hitachi Zosen Corp in Osaka, Japan, was the world’s largest TBM at 57.5 ft. in diameter.  The TBM was built to drill the Seattle SR 99 Viaduct replacement tunnel.  Seattle Tunnel Partners (“STP”) has a contract with the Washington State Department of Transportation (WSDOT) to dig the two-mile tunnel which is now complete. 

In December of 2013, tunneling was stopped ostensibly because a 119 ft.-long, eight-inch diameter steel well casing halted the TBM.  See 2/15 Blog “Bertha is Stuck and She Remains Mired in Controversy.”  Reports are that WSDOT installed the pipe in 2002 to measure groundwater levels and the pipe was allegedly mentioned in the reference material provided to bidders. STP had assumed that the pipe had been removed until the steel casing got stuck in Bertha’s cutting teeth, halting progress.  See 1/30/14 Blog “Big Bertha Stuck: Differing Site Condition Principles Revisited.”

WSDOT Seeks Retraction of Waiver Excluding Non-Minority Woman-Owned Businesses from Participation Goals

Date: September 21, 2017  /  Author: Lindsay K. Taft  /  Categories: Employment, Recent Legislation, Rants and Raves, Construction News and Notes, Regulatory Administration, Contracting, Construction Bidding, Government Contracts, Out of the Ordinary, MBE/DBE/WBE  /  Comments (0)

If you are a regular reader of our blog, you will likely recognize that our firm has been actively involved and concerned with the results of Washington State Department of Transportation’s (“WSDOT”) Disparity Study, which impacts both Disadvantaged Business Enterprises (“DBE”) and general contractors who bid on federally-funded projects with DBE goals.  On June 1, 2017, WSDOT implemented a “waiver”, which excluded Caucasian women-owned firms (“WBEs”) from qualifying for Condition of Award DBE Goals on federally-funded projects.  This drastic action was the result of WSDOT’s highly criticized 2012 Disparity Study conducted by BBC Research & Consulting of Denver, Colorado, which concluded non-minority women-owned firms do not face “substantial disparities” in the federally-funded transportation contracting market. 

Subcontractor Allowed to Sue Designer for Negligence: California Courts Chip Away at the Economic Loss Doctrine (Independent Duty Rule)

Date: August 23, 2017  /  Author: John P. Ahlers  /  Categories: Government Contracts, Contracting, Indemnity, Delay Claims, Damages, Construction Defect, Claims  /  Comments (0)

An architect may have to pay over $1 million to a subcontractor who was contractually obligated to rely on the designer’s plans – even though the architect was not a party to the contract.  That was the ruling in U.S. f/u/b/o Penn Air Control, Inc. v. Bilbro Constr. Co., Inc. The dispute involved a $7.3 million design-build contract award to Bilbro Construction (“Bilbro”) to renovate a facility for the Naval Facilities Engineering Command in Monterey, California. 

Bilbro hired an architect (“FPBA”) to serve as the designer of record and provide all the architectural design services.  FPBA’s design team included an acoustical sub-consultant (Sparling).  The general contractor (design builder) also retained Alpha Mechanical (Alpha) as the mechanical electrical and plumbing (“MEP”) design/build subcontractor.

Court of Appeals Discusses Implied Duty of Good Faith and Fair Dealing in Public Works Contracting

Date: August 16, 2017  /  Author: Lindsay K. Taft  /  Categories: Government Contracts, Contracting, Regulatory Administration, Construction News and Notes, Liens/Bond Claims, Delay Claims, Damages, Claims, Change Orders  /  Comments (0)

The implied duty of good faith and fair dealing is implied in every contract, including construction contracts.  Generally speaking, this implied duty requires parties cooperate with one another so that they each obtain the full benefit of their contracted bargain.  Recently, the Court of Appeals (Division II) in Nova Contracting, Inc. v. City of Olympia discussed this duty’s application to a public works contract.

In early 2014, the City of Olympia published an invitation for bids to replace a culvert that conveyed a creek underneath a paved bike trail.  Nova Contracting was awarded the Project.  The specifications required that Nova submit a number of submittals, the approval of which was required before Nova could commence work.  The contract also provided that the City’s decision with respect to these submittals would be final and that Nova would bear all risk and costs of delays caused by non-approval of any submittals.

Subcontractors on Washington Public Projects Can Now Get Their Retainage Money Sooner

Date: July 20, 2017  /  Author: Brett M. Hill  /  Categories: Out of the Ordinary, Government Contracts, Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Recent Legislation, Claims  /  Keywords: SUBCONTRACTORS ON WASHINGTON PUBLIC PROJECTS CAN NOW GET THEIR RETAINAGE MONEY SOONER 1  /  Comments (0)

Subcontractors on public projects in Washington State will no longer be required to wait until final acceptance of the project to get their retainage money. A new statute, which goes into effect on July 23, 2017 and applies only to Washington public projects, will allow subcontractors to get their retainage sooner.

Under prior law, a subcontractor could only get its retainage prior to final acceptance if the general contractor provided a retainage bond to the public owner to secure a release of the general contractor’s retainage and the subcontractor then provided a similar retainage bond to the general contractor in the amount of its own retainage. If the general contractor decided to not provide a retainage bond to the owner, the subcontractor would be forced to wait until final acceptance of the project before it could get paid its retainage.

WSDOT Excludes Non-Minority Women-Owned DBEs from Participation Goals

Date: June 2, 2017  /  Author: Ellie Perka  /  Categories: Recent Legislation, Rants and Raves, Memorable Quotes, Construction News and Notes, Contracting, Construction Bidding, Government Contracts, Out of the Ordinary, MBE/DBE/WBE  /  Keywords: WSDOT Excludes Non-Minority Women-Owned DBEs from Participation Goals 2  /  Comments (0)

A drastic change has been implemented by the Washington State Department of Transportation (“WSDOT”) to the Disadvantaged Business Enterprise (“DBE”) Program in Washington.  Effective June 1, 2017, WSDOT has implemented a “waiver” to exclude women-owned DBEs[i] from qualifying toward Condition of Award (“COA”) Goals on federally-funded projects.  This move is significant.  It will likely result in long-lasting detrimental impacts on the DBE community, women-owned businesses, and the entire construction community in Washington.  The construction industry should be in an uproar over this change.  Instead, it has largely gone unnoticed (likely because its impacts have not yet been felt).  It is a de facto exclusion of women-owned businesses from the DBE program, and the severity of this change cannot be overstated. 

ASBCA Validates New Type of Claim Related to Unfavorable CPARS Review

Date: April 27, 2017  /  Author: John P. Ahlers  /  Categories: Government Contracts, Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Claims  /  Comments (0)

For government contractors, an unfavorable performance rating review posted to the Contractor Performance Assessment Reporting System (“CPARS”) can be extremely costly.  Many of the government-negotiated solicitations include past performance as an important, and sometimes even primary, evaluation factor for contract award.  An unfavorable CPARS review on a past contract can cause the contractor to incur substantial extra costs in addressing the unfavorable review with contracting officers on future solicitations, and, in some instances, the contractor saddled with an unfair or inaccurate CPARS may have to challenge the review and recover some of these costs.

President Trump’s Infrastructure Plan Requires a Viable Statutory Framework (PPP Statutes)

Date: April 12, 2017  /  Author: John P. Ahlers  /  Categories: Out of the Ordinary, Government Contracts, Construction News and Notes, Memorable Quotes, Rants and Raves, Employment  /  Keywords: President Trump’s Infrastructure Plan Requires a Viable Statutory Framework (PPP Statutes) 3  /  Comments (0)

Although we live in a politically-divided nation, there is one issue on which there seems widespread agreement: our country requires a massive upgrade to its infrastructure.  Rundown airports, crumbling highways, obsolete ports, and dangerous bridges are now endemic across the United States.  By contrast, Asian airports and elegant European bridges and rails show that our country needs an upgrade, the cost of which will be enormous.

Blog: Congress Strikes a Blow to President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673

Date: March 20, 2017  /  Author: John P. Ahlers  /  Categories: Out of the Ordinary, Government Contracts, Construction Bidding, Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Recent Legislation, Employment  /  Keywords: Blog: Congress Strikes a Blow to President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673 4  /  Comments (0)

On October 25, 2016, the Federal Acquisition Regulatory Council (FAR Council) and the U.S. Department of Labor implemented former President Obama’s Executive Order 13673: “Fair Pay and Safe Workplaces” rules.  The rules became effective on October 25, 2016 and fundamentally altered the way federal contractors and subcontractors will need to handle and resolve employment and labor claims, as well as compliance issues involving their entire workforce.  The final rules can also result in otherwise-capable companies being “blacklisted” and effectively barred from federal contracts and subcontracts based on labor and employment law violations related or unrelated to prior or current federal contract performance.  The centerpiece of the new regulatory scheme was the new disclosure and responsibility requirements.  Contractors and subcontractors needed to disclose all “labor law decisions” that they had during the three years (prior to bid submission) as part of the process of applying for a new federal contract or subcontract.  If a contractor or subcontractor has too many “labor law decisions” to report or the few it has are too severe, pervasive, repeated, or willful in the eyes of the government “experts,” the company could be deemed “non-responsible” and denied a contract.