Construction Law Blog

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The Emergence of Lean Construction and its Legal Consequences

Date: May 22, 2014  /  Author: Matt Paxton  /  Categories: Rants and Raves, Construction News and Notes, Contracting, Alternative Dispute Resolution (ADR)  /  Comments (0)

Lean Construction is a way to design production systems in order to generate the maximum possible value by minimizing waste of materials, time, and effort.  With Lean Construction, the focus is having work flow reliably and predictably on the construction site.  This is possible only through the collaboration of all project participants during the early stages of the project.  With improved communication and collaboration, the likelihood of claims for delay or changed conditions is lessened.

Seattle Tunnel Partners' Plan to Fix Bertha

Date: May 20, 2014  /  Author: James R. Lynch  /  Categories: Rants and Raves, Construction News and Notes, Government Contracts, Out of the Ordinary  /  Comments (0)

The Ahlers & Cressman blog has been following with great interest the SR 99 viaduct replacement project and the saga of Bertha the Tunnel Boring Machine – whose online profile lists "Sunlight" among her "Dislikes" (more accurately, it is her only listed dislike). Recent articles include Bertha and Brenda: Two Sisters with Different Attributes and Big Bertha Stuck- Differing Site Condition Principles Revisited.

Another Reason for General Contractors to Think About Professional Liability Insurance

Date: May 15, 2014  /  Author: Masaki Yamada  /  Categories: Claims, Department of Labor & Industries, Construction News and Notes, Contracting, Notice Issues  /  Comments (0)

Many contractors now carry professional liability insurance in addition to their commercial general liability insurance because of the prevalence of alternative procurement delivery methods, such as general contractor/construction manager and design-build contracts.  In the wake of the recent Washington Supreme Court decision in W.G Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters, ___ P.3d ___ (Docket No. 88080-8) (2014), a decision by the United States District Court of Western Washington may give general contractors who do not already carry professional liability insurance another reason to think about procuring such insurance.  Read more about the W.G. Clark Constr. Co. decision here.

Training Opportunity: Tricks, Traps and Ploys Used in Construction Scheduling in Washington Seminar – Discount Available

Date: May 13, 2014  /  Author: Ryan W. Sternoff  /  Categories: Seminars  /  Comments (0)

Ahlers & Cressman, PLLC attorneys Ryan W. Sternoff and Brett M. Hill will be presenting a seminar on June 4, 2014 in Seattle, Washington covering a wide variety of issues relating to construction project scheduling.  The seminar will help you stay out of trouble and keep your project on track.  The seminar is put on by Lorman Education Services, who has graciously allowed Ahlers & Cressman to provide a 50% discount on the regular registration fee to our blog readers.  You will need to provide the discount code listed below when you register.

Waiver of Subrogation Provision in AIA General Conditions Does Not Bar Owner's Claim for Pollution Clean-Up Costs Against General Contractor

Date: May 8, 2014  /  Author: Bruce Cohen  /  Categories: Contracting, Construction News and Notes, Claims  /  Comments (0)

The waiver of subrogation provision in the AIA A201 General Conditions is included to protect parties in the construction process from claims for damages arising out of perils covered by property insurance.  Without this type of protective clause, an insurer who pays a claim would have the right to make a subrogation claim (i.e. pursue collection) against the party who caused the loss.  A recent Indiana case applying the AIA's waiver of subrogation provision suggests the scope of protection may not be as broad as many parties or insurance professionals may have expected.

Bretha and Brenda: Two Sisters with Different Attributes

Date: May 6, 2014  /  Author: John P. Ahlers  /  Categories: Government Contracts, Construction News and Notes, Memorable Quotes, Rants and Raves  /  Comments (0)

Since December 2013, the tunnel boring machine ("TBM") known as "Bertha,"
built by of Hitachi Zosen Corp. of Osaka, has been stuck underground Seattle's waterfront about 1,000' from where it began.  It (she) is now expected to resume digging at the end of March 2015, after crews fix the damage to its seals and bearings.  Seattle Tunnel Partners ("STP"), the general contractor for the project, is digging a concrete-piling-lined pit in front of the stuck TBM.  STP will then tunnel its way through the pilings, giving workers access to Bertha's cutter head.  Next, STP is expected to remove the cutter head and repair whatever needs to be repaired.  This is no simple task: at 57.5' in diameter, Bertha is the world's largest TBM.  Since the machine is stuck underground, STP does not presently know the extent of damage.  There is simply no telling what will happen once Bertha is "unearthed."  In a recent radio interview, Washington's Transportation Secretary Lynn Peterson acknowledged that there was a "small possibility" that the tunnel will never get built.  The only scenario in which that might happen, according to Ms. Peterson, is if STP and WSDOT discover that "the machine is not going to actually be fixable." 

Here is What Happens When Corporate Shenanigans Meet a Contractor with Resources

Date: May 1, 2014  /  Author: Paul R. Cressman Jr. & Matt T. Paxton  /  Categories: Construction Discovery, Construction News and Notes, Rants and Raves, Damages, Claims  /  Keywords: Paul R. Cressman Jr. & Matt T. Paxton 1  /  Comments (0)

One of the primary benefits of conducting business through a corporation or limited liability company is the limitation of personal liability.  Shareholders or members are not generally liable for the debts of the entities that they own.  The corporate structure, however, can be abused by shareholders in order to defraud creditors from recovering on debts owed by the corporation.  As you will read below, shareholders may transfer a corporation's assets into the hands of another of the shareholder's business entities to shield those assets from creditors.

WSDOT to Exclude Non-Minority Women-Owned Business from DBE Participation Goals

Date: April 29, 2014  /  Author: Ellie Perka  /  Categories: Government Contracts, Contracting, Regulatory Administration, Construction News and Notes, Rants and Raves, Recent Legislation, Employment, MBE/DBE/WBE  /  Comments (0)

The Washington State Department of Transportation ("WSDOT") is moving forward with its proposal to exclude non-minority women-owned businesses from Washington's Disadvantaged Business Enterprise ("DBE") program goals for federally-funded contracts.  In early March 2014, WSDOT submitted its proposal to the U.S. Department of Transportation's Federal Highway Administration ("FHWA").  If approved by FHWA, this significant change will go into effect in Washington for the rest of federal fiscal year (FFY) 2014 and remain in place through FFY 2017.  WSDOT's proposal was originally reported on the Ahlers & Cressman blog on January 9, 2014.  Read our original article here.

The Basics of SBA’s Bundling Restrictions

Date: April 24, 2014  /  Author: Matt Paxton  /  Categories: Construction News and Notes, Regulatory Administration, Government Contracts  /  Comments (0)

Historically, a major factor preventing small businesses from participating in the government contracts was “bundling.”  Bundling occurs when two or more contract requirements, previously provided or performed under smaller contracts, are consolidated into a solicitation for a single contract that is likely to be unsuitable for award to a small business.  Attempting to increase efficiency and decrease administrative costs, Congress passed the Federal Acquisition Streamlining Act in 1994, encouraging the consolidation of certain contracts.  As a result, between 1992 and 2001, 44.5% of all reported prime contract dollars were in bundled contracts.

Washington Supreme Court Overturns 30-Year Law Protecting General Contractors From Trust Fund Liens on Public Works Projects

Date: April 22, 2014  /  Author: John P. Ahlers and Masaki James Yamada  /  Categories: Employment, Claims, Liens/Bond Claims, Construction News and Notes, Settlements/Releases, Government Contracts, Notice Issues  /  Comments (0)

Under Washington’s Public Works Statutes (RCW 39.08 and 60.28), general contractors who perform public works are legally required to post payment bonds and have retainage withheld from progress payments.  The purpose of these laws is to protect the public entity (owner) from subcontractor and supplier claims against the public project, while preserving the interests of mechanic’s lien rights (subcontractors and suppliers are provided bond claim and retainage rights, but have no lien rights in the public property).