Construction Law Blog

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Who is Covered by the Miller Act on Federal Public Works Projects?

Date: February 19, 2015  /  Author: John P. Ahlers  /  Categories: Government Contracts, Contracting, Regulatory Administration, Liens/Bond Claims, Claims  /  Comments (0)

Historically, the common law doctrine of sovereign immunity prevented liens against public property, and federal statutes allowed only those in privity of contract with the federal government to sue to enforce contractual rights.  To address this concern, Congress enacted the Heard Act in 1894.  In 1935, Congress repealed the Heard Act and enacted the Miller Act in its place.  The Miller Act requires that all general contractors post payment bonds on contracts in excess of $25,000.00.  If the contracting officer determines that a payment bond in the full amount of the contract is impractical, he or she may set a different amount for the payment bond.  Bonds of half the contract amount are common on federal jobs.

Bertha is Stuck and She Remains Mired in Controversy

Date: February 17, 2015  /  Author: John P. Ahlers  /  Categories: Out of the Ordinary, Construction News and Notes, Rants and Raves, Recent Legislation  /  Comments (0)

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.  

Valentine's Day - Workplace Romances and "Love Contracts"

Date: February 13, 2015  /  Author: John P. Ahlers  /  Categories: Out of the Ordinary  /  Comments (0)

Valentine's Day is around the corner, a befitting occasion to scrutinize workplace romances.  Employers wary of where cupid's arrow may strike are concerned about sexual harassment charges.  Therefore, some employers are turning to "love contracts" - or in lawyer terms, a "Consensual Relationship Agreement."  A Consensual Relationship Agreement is an effort to mitigate the risk of sexual harassment claims from an office romance gone awry by documenting that the relationship is consensual.

It's Time to Rebuild America's Infrastructure - A Prospective Presidential Candidate Has an Idea!

Date: February 10, 2015  /  Author: John P. Ahlers  /  Categories: Government Contracts, Construction News and Notes, Rants and Raves, Recent Legislation  /  Comments (0)

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.

Subcontractors' Attempts to Enforce Their Bids

Date: February 5, 2015  /  Author: John P. Ahlers  /  Categories: Construction Bidding, Contracting, Claims  /  Comments (0)

Washington courts have rejected subcontractors' contentions that a general contractor's mere use of their bids constitutes an "acceptance" of the subcontractor's bid and that the incorporation of the subcontractor's bid into the prime contractor's price to the owner constitutes an enforceable contract.  Examining three Washington cases on this subject provides some insights on how the courts might view a general contractor's listing of a subcontractor in its bid as an act of "acceptance."

Spearin Doctrine: The Implied Warranty of Plans and Specifications

Date: January 29, 2015  /  Author: John P. Ahlers  /  Categories: Government Contracts, Contracting, Construction News and Notes, Damages, Claims, Change Orders  /  Comments (0)

A basic principle of construction law is that one who furnishes plans and specifications for a project impliedly warrants that the plans and specifications are workable and sufficient.  A long line of Washington cases has recognized this rule.

Short Sale Tax Forgiveness Bill Extended for 2014 Sales

Date: January 27, 2015  /  Author: Lawrence S. Glosser  /  Categories: Bankruptcy, Out of the Ordinary, Construction News and Notes  /  Comments (1)

A bill that would extend a key tax break to tens of thousands of short sale sellers who sold their homes in 2014 for less than they owed on their mortgages was passed by the House and the Senate in late December, 2012.  The last-minute one-year extension of the Mortgage Debt Forgiveness Act, which expired December 31, 2013, was included in the Tax Increase Prevention Act of 2014 that was signed into law by President Obama on December 16, 2014.  Short sale advocates and real estate groups have been lobbying hard all year to help homeowners who sold their home through a short sale avoid a devastating tax bill, which they likely could not afford.

Construction Bankruptcy, Lien and Bond Claim Rights May Survive - Part II

Date: January 22, 2015  /  Author: John P. Ahlers  /  Categories: Bankruptcy, Construction News and Notes, Claims  /  Comments (0)

This is Part II of a two part blog on Construction Bankruptcy issues.  For Part I, click here

Construction Bankruptcy, Lien and Bond Claim Rights May Survive - Part I

Date: January 20, 2015  /  Author: John P. Ahlers  /  Categories: Bankruptcy, Construction News and Notes, Rants and Raves, Liens/Bond Claims, Claims  /  Comments (0)

The Bankruptcy Code is Federal law.  Bankruptcy courts are part of the federal (not state) judiciary system.  Lien and bond claim law, however, can involve federal or state law.  Federal bankruptcy intersects state lien and bond law when a participant in a construction project goes broke.  As with anything else, there are winners and losers when someone on a construction project goes bankrupt.  The goal is to take the available action to protect yourself.  The winners are the ones who get out of the project before the bankruptcy occurs, obtain a security interest for their claims, or swiftly assert their available rights once the bankruptcy petition is filed.  The losers are generally the ones who become unsecured creditors in the bankruptcy estate.  Unsecured creditors share in whatever meager assets remain in the bankruptcy estate after secured creditors and administrative fees are paid.

General Contractor is Primarily Responsible for Compliance with Safety Regulations

Date: January 15, 2015  /  Author: Matt Paxton  /  Categories: Department of Labor & Industries, Regulatory Administration  /  Comments (0)

In Washington, general contractors are primarily responsible for compliance with the Washington Industrial Safety and Health Act of 1973 ("WISHA"), even when it comes to the conduct of their subcontractors.  If a subcontractor commits a violation, the Washington Department of Labor and Industries ("L&I") may still issue a general contractor a citation.  The Board of Industrial Insurance Appeals - the quasi-judicial administrative body charged with reviewing L&I citations - has found a limited exception to a general contractor's "primary responsibility," but only if the general contractor has a safety program that is effective in practice and the violation was the result of unpreventable misconduct.