Construction Law Blog

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ConsensusDocs Updated

Date: April 1, 2014  /  Author: John P. Ahlers  /  Categories: Government Contracts, Contracting, Construction News and Notes  /  Comments (0)

From 1888 through 2007, general contractors and architects met and agreed on the standard construction terms and conditions that are in the American Institute of Architects' ("AIA") "family" of documents.[i]  The AIA documents are probably the most commonly used construction forms for building projects in the United States.  The AIA, through its forms, seeks to strike a balance between the interests of the owner, contractor, and the design professionals.  Borrowing a phrase from Fox New anchor Bill O'Reilly (Bill did not coin this phrase), the AIA documents seek to be "balanced and fair."  The AIA contracts shift and allocate risk with three philosophical tenets in mind:  (1) controllable risk is allocated to the party best able to control the risk; (2) preventable risk is allocated to the party best able to protect against an unexpected cost (sometimes through insurance); and (3) if neither party can control or prevent the risk, it is shifted to the owner.

Design-Build Contractor Held to Same Different Site Condition Standard as Design-Bid-Build Contractor

Date: March 27, 2014  /  Author: John P. Ahlers  /  Categories: Change Orders, Construction News and Notes, Construction Bidding, Government Contracts  /  Comments (0)

In September 2012, we reported on the case of Metcalf Construction Co., Inc. v. United States, in which the U.S. Court of Federal Claims held Metcalf Construction Co., Inc. ("Metcalf"), a design-build contractor, to a very high standard of proof to demonstrate a differing site condition.  Read our blog article about the Federal Claims Court's decision here.  In that decision, the court took the position Metcalf had assumed the risk of subsurface conditions because it was a design builder and thus, was obligated to prepare a design that would accommodate conditions that differed significantly from the soils that were described in the government's RFP report.  The court relied heavily on the disclaimers in the RFP soils report, which stated they were for "preliminary information only."

Government Bid Protests: If You're Early, You're On Time; If You're On Time, You're Late

Date: March 25, 2014  /  Author: John P. Ahlers  /  Categories: Government Contracts, Construction Bidding, Regulatory Administration, Construction News and Notes, Memorable Quotes, Rants and Raves  /  Comments (0)

Today, we can almost always communicate immediately in some way, shape, or form because we are always connected with our electronic devices.  We can tweet, text, or email a "running a little late" note at any time and having that ace up our sleeve, with no consequences to using it, has led to more delayed meetings than I care to count.  New York Giants' head coach, Tom Coughlin, is notorious for his insistence that his players show up punctually.  If his players showed up to a meeting "on time," they were actually late.  Coach Coughlin wants his players arriving to the meetings early, prepared, and ready to go at the start of each meeting.  If players failed to adhere to this philosophy, there were consequences.  Government contractors might be wise to adopt Coach Coughlin's "if you're on time, you're late" philosophy when submitting bids and proposals.

Texas Supreme Court Limits Contractual Liability Exclusion

Date: March 20, 2014  /  Author: Matt Paxton  /  Categories: Claims, Construction Defect, Construction News and Notes  /  Comments (0)

On January 17, 2014, the Texas Supreme Court ruled that a Contractual Liability Exclusion contained in a general liability insurance policy did not preclude coverage of a general contractor for a claim arising out of its defective work merely because the contractor agreed to perform its work in a "good and workmanlike manner."

Federal Procurement Bidding on "Brand-Name or Equal" Products

Date: March 18, 2014  /  Author: John P. Ahlers  /  Categories: Government Contracts, Construction Bidding, Regulatory Administration, Construction News and Notes  /  Comments (0)

This post primarily pertains to federal government procurement, however, many of the practice pointers and issues apply to state public works contracts as well.

Offer to Modify Subcontract Insufficient to Cut Off Prejudgment Interest

Date: March 11, 2014  /  Author: Matt Paxton  /  Categories: Change Orders, Claims, Construction News and Notes, Contracting, Settlements/Releases  /  Comments (1)

On January 23, 2014, the Oregon Court of Appeals held that a general contractor’s offer to modify a subcontract upon acceptance by subcontractor was an insufficient form of tender to cut off the general contractor’s obligation to pay prejudgment interest.

More on Termination for Convenience in Washington

Date: March 6, 2014  /  Author: Douglas R. Roach  /  Comments (0)

In recent posts, we discussed termination-for-convenience provisions in construction contracts, noting that such provisions appear in both governmental and non-governmental contracts.  Construction Contracts Termination Basics - Part I; Part II.  This post provides more detail on the state of the law on such clauses in Washington.

Subcontractor's Claim Against Structural Engineer For Negligent Misrepresentation Dismissed

Date: March 4, 2014  /  Author: John P. Ahlers  /  Categories: Claims, Construction Defect, Indemnity, Construction News and Notes  /  Comments (0)

When confronted with extra costs on construction projects caused by architects and engineers who were hired by the owner (and have no contract with the contractor), contractors are generally inclined to seek direct recourse against the perceived wrongdoers.  Generally, unless there is some personal injury or property damage involved, however, the "economic loss rule" precludes the contractor from suing an entity with whom it lacks privity of contract.  

Two Companies Fined for Failing to Locate and Mark Underground Utilities

Date: February 27, 2014  /  Author: Matt Paxton  /  Categories: Out of the Ordinary, Regulatory Administration, Construction News and Notes, Recent Legislation, Damages  /  Comments (0)

On January 9, 2014, the Washington Utilities and Transpiration Commission ("UTC") announced that it has fined two utility companies, Pacific Power and Light Co. ("Pacific Power") and Frontier Communications Northwest, Inc. ("Frontier"), under Washington's new Underground Utility Damage Prevention Act (the "Act").  These are the first two penalties issued by the UTC since the Act took effect on January 1, 2013. 

Son's Performance of a Public Contract Bid By and Awarded To Father Found Illegal and Unenforcable

Date: February 25, 2014  /  Author: Paul R. Cressman Jr.  /  Categories: Government Contracts, Contracting, Regulatory Administration, Construction News and Notes, Department of Labor & Industries, Delay Claims  /  Comments (0)

Recently, Division II of the Washington Court of Appeals held that a Pierce County contract with a son's proprietorship was illegal, void, and unenforceable when the project was competitively bid by the father's proprietorship and awarded to the father by the County.  Bankston v. Pierce County, 174 Wn.App. 932, 301 P.3d 495 (Division II, May 21, 2013).