Construction Law Blog

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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.

Acceptable Worksite: New City of Seattle Specification Provisions Now In Effect

Date: July 7, 2017  /  Author: Lindsay K. Taft  /  Categories: Employment, Recent Legislation, Rants and Raves, Memorable Quotes, Construction News and Notes  /  Keywords: Acceptable Worksite: New City of Seattle Specification Provisions Now In Effect 2  /  Comments (0)

The City of Seattle’s City Purchasing & Contracting Services recently revised its General Special Provisions for City construction contracts to add new “Acceptable Worksite” language.  The City indicates that the purpose of the provisions is “to ensure that City construction worksites are respectful and appropriate, including prohibiting bullying, hazing, and other similar behaviors.”  An “Acceptable Worksite” is defined as a worksite “that is appropriate, productive, and safe work for all workers” and “free from behaviors that may impair production, and/or undermine the integrity of the work conditions including but not limited to job performance, safety, productivity, or efficiency of workers.” 

Ten Firm Members Recognized as Super Lawyers or Rising Stars

Date: June 29, 2017  /  Author: Ceslie Blass  /  Categories: Out of the Ordinary, Construction News and Notes, Memorable Quotes, Rants and Raves  /  Keywords: Ten Firm Members Recognized as Super Lawyers or Rising Stars 3  /  Comments (0)

While we avoid using this blog as a platform for self-promotion, we recently received share-worthy distinctions, which both flatter and humble us. We invite you, our loyal readers, to celebrate in our success, which in great measure is due to you.

Founding partner John P. Ahlers was ranked third overall across all practicing industries in Washington 2017 Super Lawyers and founding partner Paul R. Cressman, Jr. was ranked in the Top 100.  The following other firm members were also recognized as Super Lawyers: Founding partner Scott R. Sleight, Bruce A. Cohen (Partner), Brett M. Hill (Partner), and Lawrence Glosser (Partner).  In addition, Ryan W. Sternoff (Partner), James R. Lynch (Partner), Tymon Berger (Associate), and Lindsay (Taft) Watkins (Associate) were selected as Super Lawyers Rising Stars. Over half of the firm's lawyers received Super Lawyers distinction.

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 4  /  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. 

A New AAA Study Confirms that Arbitration is Faster to Resolution Than Court – And the Difference Can be Assessed Monetarily

Date: June 1, 2017  /  Author: John P. Ahlers  /  Categories: Out of the Ordinary, Alternative Dispute Resolution (ADR), Construction News and Notes, Memorable Quotes, Rants and Raves, Delay Claims, Damages, Claims  /  Keywords: A New AAA Study Confirms that Arbitration is Faster to Resolution Than Court – And the Difference Can be Assessed Monetarily 5  /  Comments (0)

There has been a perception among some litigators that arbitration is more expensive than court due to several factors.  Among them:

  • The “upfront” costs are higher in that filing fees for arbitration exceed those in court.  Arbitrators are paid, whether hourly or a flat rate, and the three arbitration panels can become very expensive.
  • Some arbitration clauses preserve statutory discovery rights, basically defeating the advantage of a simplified arbitration process.  Discovery wars are extremely expensive.  Depositions are the most costly of discovery, and in arbitration, as opposed to court, depositions are limited or do not exist.
  • Some arbitration clauses integrate the statutory rules of civil procedure, making arbitration almost equivalent to litigation.  These types of clauses do the parties no favors

General Construction v. Grant County PUD: Chalkboard Notice is Invalid and Engineer Cannot Waive Notice Requirements

Date: May 30, 2017  /  Author: Brett M. Hill  /  Categories: Change Orders, Claims, Damages, Rants and Raves, Memorable Quotes, Construction News and Notes, Contracting, Notice Issues  /  Keywords: General Construction v. Grant County PUD: Chalkboard Notice is Invalid and Engineer Cannot Waive Notice Requirements 6  /  Comments (0)

 

I previously posted a blog about the General Construction v. Grant County PUD case and the Court of Appeals’ rulings regarding notice and claim procedures.[i]  The General Construction case is also noteworthy for two other issues that were raised in that case.[ii]  The first issue involved whether a contractual written notice requirement is satisfied when the notice is provided on a chalkboard only.  The second noteworthy issue is whether the Public Utility District’s (“PUD”) own in-house engineer could waive the contractual notice and claim procedures in the PUD’s contract.

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 7  /  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) 8  /  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 9  /  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.