Construction Law Blog
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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.
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.
Construction contractors increasingly use drones to monitor and document progress on construction sites. Drones are becoming more and more common place in construction. One of our clients, an excavation contractor, uses a drone to fly the project before the bid. The contractor then uses the data gathered from the drone to create a topographic map, inputs the design elevations and plans in a computer, and calculates the quantities as a check of the owner takeoffs. This is an inexpensive check on quantities, which provides the contractor with a leg up in the bidding process.
Companies that do not themselves qualify for federal preferences as small, disadvantaged businesses can help in joint ventures with other qualified companies and enjoy many of the benefits these programs offer.
Federal agencies annually reserve over $12 billion in federal contracting opportunities for award to “8(a)” companies, which are businesses that have successfully applied for determination of being socially and economically disadvantaged under Section 8(a) of the Small Business Administration (“SBA”) Act. In addition, other categories of disadvantaged, small businesses, such as companies owned and controlled by service-disabled veterans, qualify for a growing allotment of set aside contracts and other preferences.
The U.S. Equal Employment Opportunity Commission (the “EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
When issuing citations under the Washington Industrial Safety and Health Act of 1973 (“WISHA”), the Department of Labor and Industries (“L&I”) commonly classifies violations as either “general” or “serious.” The level of severity has an effect on the civil penalty – for example, the civil penalty of “serious” violation can reach $7,000 per violation – as well as the contractor’s safety record. Contractors with poor safety records may pay more for insurance and have a more difficult time procuring work.
On March 25, 2016, the Occupational Safety and Health Administration (“OSHA”) published its final rule on occupational exposure to respirable crystalline silica (the “Silica Rule”). Crystalline silica is a basic component of soil, sand, granite, and many other materials. Silica exposure is classified as a human lung carcinogen and can cause lung cancer, silicosis, chronic obstructive pulmonary disease, and kidney disease. Approximately two million construction workers nationwide are exposed to respirable crystalline silica in their workplace as a result of drilling, cutting, crushing, or grinding silica-containing material, such as concrete and stone.
Since 2009, the City of Seattle Department of Constructions & Inspections (formerly part of the Department of Planning (the “Department”) has been considering requiring retrofits for buildings with unreinforced masonry (“URM”) bearing walls. URM buildings are the brick buildings built without steel reinforcements and ties and connections required by modern building codes. They were built throughout the city, but many can be seen in neighborhoods such as Pioneer Square, Chinatown/International District, Columbia City, Capitol Hill, and Ballard. URM buildings are the most likely type to be damaged during earthquakes, and retrofits will make these buildings less vulnerable to damage.
More than 100 new industries are now eligible for the Small Business Administration’s (“SBA”) Woman-Owned Small Business (“WOSB”) contract program. The SBA implemented the WOSB program in order to expand the number of industries where woman-owned small buisnesses could compete. The program allows set-asides for Economically Disadvantaged WOSBs (“EDWOSBs”) in industries where WOSBs are underrepresented and set-asides for WOSBs where they are substantially underrepresented.
Recently, the largest changes in more than 30 years were made in federal mortgage disclosure requirements. On August 1, 2015, the forms that have become second nature for generations of loan originators, attorneys, and borrowers—including the Good Faith Estimate (GFE), HUD-1, and Truth-in-Lending—are no longer used for new real estate transactions. In their place are two completely new forms and a new set of requirements for how and when they are provided to borrowers.