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

- OR -

General Construction v. Grant County PUD: Courts Continue to Struggle with Mike M. Johnson Case

Date: May 24, 2017  /  Author: Brett M. Hill  /  Categories: Notice Issues, Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Delay Claims, Claims, Change Orders  /  Keywords: General Construction v. Grant County PUD: Courts Continue to Struggle with Mike M. Johnson Case 1  /  Comments (0)

Another court in Washington was asked to apply the Mike M. Johnson[i] decision to a contractor’s claim for extra work.  This time it was the Division III Court of Appeals in Washington.  The Division III Court of Appeals, which covers all of Eastern Washington, had a hand in the original Mike M. Johnson case.  That court is the intermediary court that ruled in favor of the contractor in Mike M. Johnson.  It held that there were issues of fact as to whether Spokane County, in the Mike M. Johnson case, had actual notice of the changed conditions and, thus, waived the notice and claim procedures that the County was attempting to rely upon.  The Division III Court of Appeals was later overruled by the Washington State Supreme Court, which held as a matter of law that the County of Spokane had not waived the notice and claim procedures.  This time around, the Division III Court of Appeals, for the most part, ruled in favor of the public entity and followed the Mike M. Johnson decision.

ASBCA Validates New Type of Claim Related to Unfavorable CPARS Review [i]

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

Date: April 12, 2017  /  Author: John P. Ahlers  /  Categories: Employment, Rants and Raves, Memorable Quotes, Construction News and Notes, Government Contracts, Out of the Ordinary  /  Keywords: President Trump’s Infrastructure Plan Requires a Viable Statutory Framework (PPP Statutes) 2  /  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 3  /  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.

Sanctions of $1.6 Million Plus Imposed on Contractor for Fabricating Evidence

Date: March 8, 2017  /  Author: Paul R. Cressman, Jr.  /  Categories: Out of the Ordinary, Construction News and Notes, Memorable Quotes, Rants and Raves, Damages, Claims  /  Keywords: Sanctions of $1.6 Million Plus Imposed on Contractor for Fabricating Evidence 4  /  Comments (0)

King County Superior Court issued sanctions of $1,641,721 in favor of Gefco and against Cascade Drilling, Inc. and its President, Bruce Niermeyer, composed of $1,394,435 in attorneys’ fees and $247,286 in expert fees.

Cascade Drilling is a contractor.  Gefco manufactures and sells large drilling machinery.  The dispute centered around a project that began in 2008.  Cascade was hired to drill a water well at a housing development in Wheeler Canyon, California.  Cascade used a 50K drilling rig purchased from Gefco.  The pump drive shafts on the drilling rig failed four times.  After each failure, Cascade ordered a replacement pump drive shaft from Gefco.

Want to Use Drones in Your Construction Project? FAA Has Just Made It Easier.

Date: February 28, 2017  /  Author: Masaki J. Yamada  /  Categories: Out of the Ordinary, Regulatory Administration, Construction News and Notes, Memorable Quotes, Rants and Raves, Recent Legislation  /  Keywords: Want to Use Drones in Your Construction Project? FAA Has Just Made It Easier. 5  /  Comments (0)

The new Part 107 FAA Rules took effect on Monday, August 29, 2016.  Unlike the previous requirements for flying a drone commercially, the new rules are much more simplistic and permissive of a broad amount of commercial drone usage.

The following is the basic knowledge you need to legally use a drone on your future projects.  To fly a drone commercially, there are now four major requirements:

 

  • You must be at least sixteen years old;
  • You must register your drone online;
  • You must pass an aviation knowledge test administered at an FAA-approved testing center; and
  • You must pass review by the Transportation Security Administration.

Rattlesnake Bite Triggers Potential Liability for Walmart

Date: January 27, 2017  /  Author: James R. Lynch  /  Categories: Out of the Ordinary, Construction News and Notes, Memorable Quotes, Rants and Raves, Damages, Claims  /  Comments (0)

A customer shopping at Walmart’s outdoor garden center in Clarkston, Washington, reached down to brush aside a stick covering a price tag for bags of mulch stored on wooden pallets. The “stick” turned out to be a rattlesnake, and bit his hand.

The customer sued Walmart on the legal basis of “premises liability,” claiming that as Walmart’s business invitee (one who enters the owner’s property primarily for the owner’s benefit), the store owed him a duty to warn or guard against hazardous conditions such as the rattlesnake.

Be Careful How You Terminate: Terminating for Convenience May Limit Your Future Rights

Date: January 11, 2017  /  Author: Brett M. Hill  /  Categories: Contracting, Construction News and Notes, Memorable Quotes, Rants and Raves, Damages, Construction Defect, Claims  /  Comments (0)

Many construction contracts contain a termination clause that allows a contractor to be terminated either for convenience or for cause.  Termination for convenience and termination for cause clauses have been discussed previously on the blog here, here, and here.  The distinction between a termination for convenience or for cause is an important one.

If a contractor is terminated for convenience, the rights of the party who has terminated the contractor for convenience could be limited in the future.  This is specifically true as to any defects in the terminated contractor’s work that are discovered after the termination for convenience.

New Megablimp to Deliver to Remote Alaskan Construction Sites

Date: January 5, 2017  /  Author: Ryan W. Sternoff  /  Categories: Out of the Ordinary, Construction News and Notes, Memorable Quotes  /  Keywords: New Megablimp to Deliver to Remote Alaskan Construction Sites 6  /  Comments (0)

For nearly 20 years, Lockheed Martin has been working on developing a “Hybrid Airship” that may transform the ability to construct facilities in remote project locations.[1]

On September 13, 2016, the Daily Journal of Commerce reported that the first of these “Hybrid Airships,” which can land in snow, ice, gravel, and water, are set to deliver from a facility operated by PRL Logistics in Kenai, Alaska, beginning in 2019.[2]  PRL will be operating the blimps in partnership with UK-based Straightline Aviation who placed the first order for the airships this year.  According to PRL, the hope is that the airships will provide low cost solutions for moving freight in Alaska, where runways and roads are not always available.  The helium-lifted behemoth blimps have space for 47,000 pounds of cargo and 18 passengers and cost about $40 million dollars.

Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage

Date: December 22, 2016  /  Author: Masaki J. Yamada  /  Categories: Construction News and Notes, Memorable Quotes, Rants and Raves, Damages, Construction Defect, Claims  /  Keywords: Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage 7  /  Comments (0)

Washington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy.  This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy).  In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured.  See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002).  The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend.  The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy.  See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007).  If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured.