Construction Law Blog
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Public Private Partnerships (“P3”) generally involve a performance-based contract between a public sector (any level of government) and a private sector (usually a consortium of private sector companies working together) to arrange financing, delivery, and typically long-term operations and maintenance (O&M) of public infrastructure projects. P3 contracts referred to as Project Agreements are typically awarded through the competitive bidding process. The private partner is contractually obligated to fulfill the Project Agreement (at the risk of losing its investments), which binds its obligations as defined by the State.
The Washington Limited Liability Company Act (the “Current Act”) was first adopted in 1994. It has been revised several times in order to address specific issues, most recently in the 2014 Regular Session of the Legislature. The Current Act has not been the subject of comprehensive review and revision since its original enactment. The experiences of other states, and the experiences of business attorneys in Washington, have shown that the Current Act should be updated and modernized. The bill pending in the current legislative session was developed under the auspices of the Washington State Bar Association Business Law Section and is intended to make the Limited Liability Company Act more flexible and user-friendly, and to eliminate or modify provisions that create unnecessary problems for business people forming and operating LLCs.
The basic features of the proposed legislation are summarized in a memorandum from the Business Law Section and Partnership and LLC Law Committee, which is available here. The legislative history and the entire proposed bill is available here.
State and local infrastructure banks are again in the spotlight with the State Transportation and Infrastructure Financing Innovation Act (“STIFIA”), which Representatives Richard Hanna (R-NY) and Janice Hahn (D-Calif.) recently introduced into Congress. The concept of state infrastructure banks has been around for many years. These banks work to provide loans, construction debt financing, or lines of credit for infrastructure projects in various local areas. STIFIA is designed to amend a federal highway bill already in effect: the Moving Ahead for Progress in the Twenty-First Century Act (known as “MAP-21”). STIFIA would put the projects and their financing in the hands of state and local governments, which are more familiar with the needs and priorities in those areas than the federal government.
Late night host of Last Week Tonight, John Oliver, took us on a tour of the Nation’s infrastructure on Monday night. The deplorable state of U.S. infrastructure has been the subject of a number of Ahlers & Cressman posts (It’s Time to Rebuild America’s Infrastructure – A Prospective Presidential Candidate Has an Idea!; Public-Private Partnerships: Completing Infrastructure Projects Without Public Funds; More Washington Infrastructure Projects On The Horizon – Yakima River Basin Integrated Water Resource Management Plan; Hurricane Sandy A Wake Up Call To Strengthen U.S. Infrastructure – A Topic Lost In The Recent Presidential Campaign; Private Investors Testify that the US Infrastructure Bank is Key to Attracting Private Capitol for Public Works; New ASCE Report: Old U.S. Infrastructure is Costing the Public Billions; China’s Road-Building Pace Leaves U.S. In The Dust; Now That The Republicans Have Taken Over the House – What Does That Spell For Infrastructure Investment?; Infrastructure Investment Gets Boost From The Daily Show with John Stewart; Call For Boost to Infrastructure Investment; $4 Billion National Infrastructure Bank Proposed by President Obama; Water Main Break Highlights Need for Infrastructure Investment; Chelan Washington’s wooden pipes emphasize the need for radical infrastructure upgrades; Pew Research Gives Washington State An “A” For Infrastructure Government Performance). Oliver in 30 minutes gave viewers the comedic side of the sorry state of the U.S. infrastructure and convinces us that infrastructure is worth talking about. One of his memorable lines was: The average U.S. dam is 52 years old and has “something deeply broken inside” – “like Botox users and clog dancers.”
Home field advantage matters in sports, and it also matters in litigation. In litigation, many battles are fought over the location where a dispute is to be decided and who is tasked with deciding the outcome of the dispute.
Barely a day goes by without Seattle media attention focus on the Seattle Tunnel Project. Bertha, the tunnel boring machine (“TBM”), has been stuck (since last year) under Seattle’s waterfront approximately 1,000 feet from where the tunneling began. The tunnel is designed to replace the aging Alaskan Way Viaduct that was damaged in the 2001 Nisqually Earthquake. Read more here: Bertha Is Stuck and Challenges Persist: Latest Projected Opening is August 2017.
The American Society of Civil Engineers (“ASCE”) has calculated that an additional $1.6 trillion should be spent on infrastructure by 2020. ASCE gives our crumbling infrastructure a failing grade (D). For seven years, this blog has been tracking and reporting on the sorry state of our infrastructure.
Minimum Wage Increases in 20 States: On January 1, 2015, employers in 20 states and the District of Columbia, as well as those who perform work on federal contracts and subcontracts, will see an increase in the minimum wage. In nine states which make adjustments to keep up with rising inflation (i.e. Washington), the increase is automatic. In 11 other states and the District of Columbia, the minimum wage is being raised as a result of new laws approved by the legislatures or by vote of referendum. To assist you in determining which states have raised the minimum wage and what the minimum wage is in those states, the U.S. Department of Labor provides an interactive map and state-by-state report (available here), which employers can use to determine the applicable minimum wage in a state. Also, as previously reported in this blog (available here), the new minimum wage for federal contractors and subcontractors is $10.10 as a result of an interim final rule issued on December 15, 2014.
OSHA Reporting Requirements: Beginning January 1, 2015, employers covered by the Occupational Safety and Health Administration ("OSHA") are required to report all work-related fatalities within eight hours, and all inpatient hospitalizations, amputations and losses of an eye within 24 hours. Previously, employers were required to report all workplace fatalities and when three or more workers were hospitalized in the same incident. Employers may report these serious incidents to OSHA by calling the nearest OSHA area office during normal business hours (list available here); calling the 24-hour OSHA hotline at 1-800-321-OSHA (6742); or reporting online here.
Construction contractors and subcontractors with contracts covered by the Wage Rate Requirements (Construction) Statute (formerly known as the Davis-Bacon Act) will be required to pay employees no less than $10.10 per hour. The Federal Acquisition Regulatory Council on December 15, 2014 published an Interim Final Rule and request for comments on a proposed rule to implement Executive Order 13658, which President Obama issued on February 12, 2014. The Rule establishes a new minimum wage covering services in construction contracts of $10.10 per hour, which will be adjusted annually by the Department of Labor. The Rule does not excuse a contractor’s non-compliance with any applicable federal or state prevailing law or any applicable or municipal ordinance establishing a minimum wage higher than the minimum wage established by the Executive Order.
This is the second installment of a two-part blog on bid shopping in public contracts. Part I introduced the Subcontractor Listing Statute, RCW 39.30.060, which requires all general contractors bidding on public works projects of $1 million or more must submit the names of the plumbing, electrical, and HVAC (heating, ventilating, and air conditioning) subcontractors, with whom the prime contractor will contract. Part II discusses actions arising out of the Subcontractor Listing Statute in more detail.