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HEADLINES ADDED: October 20, 2009
New Maryland MBE laws go in effect October 1, 2009, Part 2
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HEADLINES ADDED: October 07, 2009
Court of Appeals Keeps MATOC Alive
The Court of Appeals for the Federal Circuit has decided two cases that assure the continued use of the Multiple Award Task Order Contract (“MATOC”) in federal construction contracting. In the first case, Weeks Marine, Inc. v. United States, the United States Court of Federal Claims decided a bid protest in favor of Weeks Marine. The protest challenged the right of the South Atlantic Division of the Corps of Engineers to use MATOC procurement to solicit all maintenance dredging and shore protection projects for the next five years by... Read More
HEADLINES ADDED: October 06, 2009
New Construction Industry Arbitration Rules for AAA Effective October 1, 2009
Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 tyles deflockedstate="false" defunhidewhenused="true" defsemihidden="true" defqformat="false" defpriority="99" latentstylecount="267"> at="true" name="heading 1"> * Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:auto; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Times New Roman","serif";} The American Arbitration Association revised its Construction Industry Arbitration Rules and Mediation Procedures. Effective October 1, 2009, the following highlight some of the important changes: The Rules may be applied to AAA arbitrations, even if the Rules are not mentioned in the contract which... Read More
HEADLINES ADDED: August 19, 2009
Government Held Responsible for "Utter Silence"
An Armed Services Board case, ADT Construction Group, Inc., involves an appeal from a contracting officer's final decision denying a claim for $826,725.16 and a 278-day time extension. The contractor had filed a claim for pre-construction delays arising out of a contract for the design and construction of a munitions maintenance facility at Nellis Air Force Base, Nevada. Although the contract in question was ultimately terminated for default and appealed to the Board (ASBCA No. 55358), the termination appeal was suspended pending the outcome of the appeal on the... Read More
HEADLINES ADDED: August 18, 2009
The Importance of Proper Licensing for Contractors
Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 tyles deflockedstate="false" defunhidewhenused="true" defsemihidden="true" defqformat="false" defpriority="99" latentstylecount="267"> at="true" name="heading 1"> * Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:auto; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Times New Roman","serif";} The Maryland Court of Appeals recently held that a Maryland contractor without a home improvement license cannot seek payment through a Mechanic’s Lien action. As a result, the contractor could not seek any recourse from obtaining payment totaling $183,418.60, which were due and owing... Read More
HEADLINES ADDED: July 27, 2009
HUD Makes $26.3 Million Available to Fight Housing Discrimination
Grants are available to investigate allegations of housing discrimination and to educate the public and the housing industry about their rights and responsibilities under the Fair Housing Act.... Read More
HEADLINES ADDED: July 25, 2009
Construction Industry Audit Technique Guide
... Read More
HEADLINES ADDED: July 20, 2009
Contractors, Consider Upgrading Your License Over Risking Disciplinary Action
In South Carolina, general and mechanical contractors have limitations on the amount of money a project they undertake may cost, unless the contractors qualify for the unlimited group. The limit is calculated based on the licensee's net worth. There are five groups of limitations for mechanical and general contractors respectively. The groups range from limitations of up to $30,000 to unlimited cost on projects. The limit refers to the total cost of construction: all cost incurred by the owner, all contractors, subcontractors, and other parties, for labor, materials, equipment, and... Read More
HEADLINES ADDED: July 18, 2009
When Does a Claim for Defective Work Arise?
Lee v. Prof’l Constr. Servs., 982 So. 2d 837 (La. Ct. App. 2008). A Louisiana Court of Appeal barred a claim against an engineer because it was brought beyond the limitations of the statute of repose. Plaintiffs sued the engineer for the improper design, fabrication, and construction of a radio communication antenna tower. The parties entered into the contract in 1998. Plaintiff discovered the alleged faults in 2005 and sued in 2006. The statute limiting the timeframe within which a claimant may sue referred specifically to professional engineers. It was enacted in... Read More
A Promise by E-Mail Must be Supported by Consideration
Inland Constr. Co. v. Cameron Park II, Ltd., LLC, 640 S.E.2d 415 (2007). A contractor sued a corporation for money owed by the corporation under the terms of their construction contract. The contractor constructed improvements to a building owed by the corporation. The agreement provided that any modifications to the project had to be done through a change order. The corporation then refused to pay for a heating, ventilation, and air conditioning unit not agreed to in the original contract. No change order referring to the change was presented in court. The corporation alleged... Read More
Employers, Keep in Mind Possible OSHA Inspections
Employers should be prepared for a possible workplace inspection by the Occupational Safety and Health Administration (OSHA). An inspection may be conducted because of a complaint, fatality in the facility, a scheduled inspection, or a follow-up visit. Violations vary depending on the nature of the operations. Common violations include machine guarding, lockout/tagout, ladders and scaffolding, hazardous chemicals, and electrical safety. Even if an inspection is limited to the area, it can be expanded if the inspectors find something inside. The OSHA inspection has four steps. First, the employer and the inspector... Read More
Short Contract Law Lesson
Construction projects usually involve many parties, many tasks, and consequently many different agreements. Thus, understanding basic concepts of contract law is very important. Where any of the contract elements is missing, a valid contract does not exist, and an alleged promise cannot be enforced. The elements of a valid contract include: offer, acceptance, consideration, and meeting of the minds. Some reasons for not enforcing an agreement are lack of capacity of one or more parties to the contract, illegality, misrepresentation, duress, unconscionability, ambiguity, or mistake. Remember, if the offer specifies a certain method of acceptance, the offeree, or the party receiving the offer, must follow the... Read More
U.S. Senate Expresses Concern over Chinese Drywall Issues
On March 30, 2009, Florida senator, Bill Nelson, introduced to the Senate Bill S.Res.91. The bill is entitled: "A Resolution Calling on the Consumer Product Safety Commission, the Secretary of the Treasury, and the Secretary of Housing and Urban Development to Take Action on Issues Relating to Drywall Imported from China." Between 2004 and 2007 the United States imported drywall from China, most of it for building houses after hurricane Katrina. The imported drywall turned out to be toxic, posing potential serious health threats to people and enraging and terrifying... Read More
HEADLINES ADDED: July 04, 2009
Rejection of All Bids for A Public Project in Maryland
A recent decision by the Maryland Board of Contract Appeals reaffirmed the state’s ability to reject all bids for a project, pursuant to the Code of Maryland Regulations (“COMAR”) 21.06.02C. A contractor submitted the apparent low bid for a construction project to repair erosion damage at the BWI Airport. After reviewing all of the bids, the Maryland Aviation Administration (“MAA”) decided to reject all bids and rebid the job. The MAA advised the contractor with the lowest bid of its decision and also notified that contractor that its bid... Read More
HEADLINES ADDED: July 02, 2009
Construction marketing: Universal laws and local rules
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HEADLINES ADDED: June 26, 2009
British Columbia Supreme Court rules market recovery funds were collected improperly
British Columbia’s open shop construction association and an electrical workers union can’t agree on what a B.C. Supreme Court ruling on market recovery dues really means.... Read More
HEADLINES ADDED: June 18, 2009
The Supreme Court, Judicial Elections and Contract Solutions
The United States Supreme Court recently reversed a decision by the Supreme Court of West Virginia on the basis that campaign contributions by Massey Coal's CEO, Don Blackenship, to one of the Judges in the West Virginia majority created an appearance of impropriety or a "serious risk of actual bias." Unlike Maryland, West Virginia has contested elections for its appellate judges. Several years ago Bowie & Jensen, LLC represented a contractor in a residential construction dispute against one of the justices on the West Virginia Supreme Court and her... Read More
HEADLINES ADDED: June 16, 2009
Contract Rights and Selling a Mobile Home
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HEADLINES ADDED: June 11, 2009
Contract Modifications May Trigger Disruption Claims
A government agency hired a general contractor to construct a laboratory building. Bell BCI Co. v. United States, 81 Fed. Cl. 617 (2008). After nine months from the beginning of construction, the government asked that an additional floor be added to the building. The change resulted in over 200 modifications by the government and delayed the completion of the project by almost two years. Moreover, the government's modifications increased the cost to complete construction by $21 million. When the government refused to pay the contractor the additional costs, the contractor filed suit.... Read More
HEADLINES ADDED: May 20, 2009
Failure to Raise All Related Claims at Once May Preclude Parties from Bringing Any Remaining Claims Later
The legal doctrine of res judicata or claim preclusion precludes parties from bringing suit for claims they should have brought up in earlier suits. "Res judicata" is a Latin phrase that means a matter already adjudged. A simple example of the application of the doctrine is an owner who sues a builder for negligence in constructing his house (first suit). The court awards damages to the owner. The owner then brings a second suit, bringing claims of breach of implied warranties against the contractor (second suit). The owner is precluded from bringing the second suit... Read More
HEADLINES ADDED: May 18, 2009
The American Recovery and Reinvestment Act of 2009: What it Means for Federal Construction Contractors
Co-authored by Michael H. Payne and Craig A. Schroeder On February 17, 2009, the President signed Public Law 111-5, the American Recovery and Reinvestment Act of 2009 (also known as “ARRA,” the “Recovery Act,” and the “Stimulus Act”), including a number of provisions to be implemented in Federal Government contracts. The Recovery Act’s purposes are to stimulate the economy and to create and retain jobs. The Act gives preference to activities that can be started and completed expeditiously, including a goal of using at least 50 percent of the... Read More
HEADLINES ADDED: May 16, 2009
Court Enjoins Awards of Government-wide Task Order Contracts Because of "False Precision" in the Numerical Ratings of the Offerors
An important decision, Serco, Inc. v. United States was issued by the United States Court of Claims last week in a case involving a government-wide acquisition contract (“GWAC”) awarded by the General Services Administration (GSA) to provide technology products and services to the entire federal government. Sixty-two offerors competed for a chance to perform task orders under this GWAC. In ranking the technical proposals of these offerors, GSA teams assigned adjectival ratings to various subfactors and then converted them into whole numbers ( e.g., 3, 4, 5). Combining, averaging... Read More
HEADLINES ADDED: May 15, 2009
Bid Protests to GAO to be Allowed on Task Orders in Excess of $10 Million
Effective May 23, 2008, there will be important changes that pertain to a contractor’s ability to protest task and delivery orders. These changes are embodied in Section 843 of the 2008 Defense Authorization Act, "Enhanced Competition Requirements for Task and Delivery Order Contracts," and legislators expect the new provisions to increase competition for task and delivery order contracts. Most notably, the new law allows a contractor to protest a task order in excess of $10 million to the GAO. Previously, the Federal Acquisition Streamlining Act of 1994 (“FASA”) prohibited task... Read More
Exception to the Economic Loss Rule Extended to Commercial Construction
The economic loss rule is a court-created doctrine that bars liability in tort where the only damages are injuries to the defective product itself: this means no personal injuries or damages to other property exist. See Kennedy v. Columbia Lumber & Mfg. Co., 299 S.C. 335, 341 (1989). The rule only applies where the duty owed by the wrongdoer to the aggrieved arises out of a contract. In 2008, the Supreme Court of South Carolina considered the applicability of the economic loss rule in the context of commercial context. See Colleton Preparatory Acad., Inc.... Read More
HEADLINES ADDED: May 14, 2009
Contractors, Remember to Perfect Your Mechanic's Lien to Stay Protected
Section 29-5-10 of the South Carolina Code of Laws Annotated allows providers of labor or materials for the repair, alteration, or erection of a structure to file a lien either on the structure or on the owner's interest in the land on which the structure is located. The materials must be actually used in such repair or erection to be "lienable". Contractors must remember, however, to follow the statutory procedures for filing and perfecting a lien to be able to enforce their right to payment against owners. First, file the mechanic's lien within 90 days... Read More
HEADLINES ADDED: May 09, 2009
Wrongful Conduct Found Not Covered by Insurance Policy
The City of Shawnee, Kansas, hired a contractor to perform work on a project. Utility lines ran throughout the job site. The bid solicitation documents indicated that the utility lines would be relocated not to interfere with the contractor's work. The city failed, however, to relocate the utility lines as asserted during the bid solicitation, and the contractor encountered delay damages as a result. The contractor then sued the city for misrepresentations and resulting delay damages. The city then sued its insurer, Argonaut Insurance Company (Argonaut). See City of Shawnee v. Argonaut Ins. Co.,... Read More
HEADLINES ADDED: May 08, 2009
A Contractor's Liability for Negligence
Contractors may be held liable for their negligent performance of a contract. Under the economic loss rule, economic loss alone precludes punitive damages—additional damages to punish for wrongful conduct. Parties to a contract owe to each other the duty to perform the tasks they agreed upon. Negligence in performing or nonperforming those tasks is both a tort and a breach of contract. One court specified that if the negligence (or even gross negligence) of a contractor only results in economic loss to the subject matter of the contract, punitive damages... Read More
SHB 1555: Revised Retainage Rules for Public Works Contracts
Mike Purdy's timely and useful summary of the ins and outs of the Washington State public works retainage law, recently revised by SHB 1555, is available here in this post to his public contracting blog.... Read More
Division 1 Clarifies Estoppel Remedy for Bad Faith
This case, the latest from Division 1 in its treasure chest of condo defect / insurance coverage cases, contains two notable nuggets: A 14 month delay in responding to a tender of defense and indemnity was bad faith as a matter of law, estopping the carrier from denying coverage under the additional insured endorsement it issued to a GC under a subcontractor's policy. As a result, the carrier had to pay both the defense costs incurred by the GC as they pertained to the subcontractor's scope of work as well as the... Read More
HEADLINES ADDED: May 04, 2009
Keen Construction fined after worker injured in fall
Keen Construction based in Downton, Salisbury, has been fined £6,600 following an accident which saw a self-employed worker seriously injured.... Read More
HEADLINES ADDED: April 24, 2009
Bid-rigging: OFT decision could be as late as September
The Office of Fair Trading has confirmed that its decision on what action to take following its investigation into cover-pricing and "bid-rigging" could now come as late as September.... Read More
HEADLINES ADDED: April 23, 2009
Bid-rigging: OFT decision could be as late as September
The Office of Fair Trading has confirmed that its decision on what action to take following its investigation into cover-pricing and "bid-rigging" could now come as late as September.... Read More
HEADLINES ADDED: April 22, 2009
No-Damages-For-Delay Clause May Be Unenforceable
Williams & Sons Erectors, Inc. v. South Carolina Steel Corp., 983 F.2d 1176 (2d Cir. 1993). The parties to a contract may choose how to share liability. For example, the contract can address what amounts each party would owe or have to pay, when such amounts would be due, and who would be liable for additional costs. Similarly, the parties may agree how to deal with damages resulting from construction delays. In the Williams & Sons Erectors case, the contract provided the following no-damages-for-delay clause: "No claims for increased costs, charges, expenses... Read More
HEADLINES ADDED: April 18, 2009
Civic and Public (Refurb/Repair), INVERURIE, £1.5m
Equipment store. Burghmuir Place.... Read More
HEADLINES ADDED: April 14, 2009
Air Force General Suggests That "Unwarranted" Protesters Should Be Penalized
The Commander of the Air Force Material Command, General Bruce Carlson, recently told reporters at a forum sponsored by Aviation Week that there should be some sort of penalty for protests that are found to be unwarranted. It was reported that the General said “that some losing bidders file protests with 20 or 30 elements when perhaps only one part has any foundation. In recent years, nearly every significant defense contract has been protested by the losers to the Government Accountability Office.” The comments, which were reported by GovernmentExecutive.com... Read More
Department of Justice Adds Teeth to Current Contractor Ethics Rules
This has been a banner year for ethics in government contracting. This intense focus on integrity and honesty in business is evident in the evolution of the rules of the game-the Federal Acquisition Regulation. Just last December, changes to the FAR mandated contractors to “conduct themselves with the highest degree of integrity and honesty” and to document how they planned to achieve this standard in a Code of Business Ethics and Conduct (see our January 2008 blog article). In addition, the requirements for contractors were stepped up to include prominently displayed hotline... Read More
HEADLINES ADDED: April 10, 2009
Commercial General Liability Insurance Carrier Did Not Cover Liability for Professional Services
Wimberly Allison Tong & Goo, Inc. v. Travelers Prop. Casualty Co. of Am., 559 F. Supp. 2d 504 (D.C. N.J 2008). This case involved an architect who was sued by several parties who either sustained injuries or lost loved ones when a parking garage colapsed. Defendant, the architect, argued that its general commercial liability (GCL) insurance carrier and excess GCL insurance carrier had an obligation to defend under the architect's policy. The insurers, however, rejected the architect's claims, noting that the exclusion for liability resulting from professional services applies. The architect's argument... Read More
HEADLINES ADDED: April 07, 2009
Virginia Graeme Baker Pool and Safety Act in Maryland
On December 19, 2008, the Virginia Graeme Baker Pool and Spa Safety Act (“Graeme Baker Act”) took effect nationwide, including Maryland, imposing a federally mandated requirement for suction entrapment avoidance. The Graeme Baker Act promotes the safe use of pools, spas, and hot tubs by requiring the following: 1) all manufactured safety drain covers must conform with the American National Standard ASME A112.19.8 – 2007 Suction Fittings for Use in Swimming Pools, Spas, and Hot Tubs published by the American Society of Mechanical Engineers (“ASME”); 2) all new and... Read More
NC Court of Appeals Holds That Risk Allocation Provision Does Not Violate North Carolina Anti-Indemnification Statute
Indemnification and limitation of liability provisions are commonplace in construction contracts. By statute in North Carolina (N.C. Gen. Stat. § 22B–1 (2007)), any contractual agreement relating to the design, planning, construction, alteration, repair or maintenance of a building, road, appurtenance or appliance purporting to indemnify a party against liability for damages caused by such party’s own negligence, in whole or part, is unenforceable. This rule extends to the party’s independent contractors, agents and employees as well.Recently, the North Carolina Court of Appeals clarified that N.C. Gen. Stat. § 22B-1... Read More
GAO Rules that the VA Failed to Conduct Meaningful Discussions
A decision just published by the Government Accountability Office ("GAO"), Matter of Burchick Construction Co., mpany, involved a request for proposals issued by the Department of Veteran Affairs ("VA") for the construction of an ambulatory care center . After receiving five proposals and evaluating the technical evaluation factors, the VA conducted discussions with the offerors that only addressed their price proposals. The VA determined that the offeror providing the best value was Massaro Corporation at a firm fixed price of $38,530,000. Burchick Construction Company, whose price proposal of $36,686,000 was the lowest price offered, challenged the award... Read More
Use of Project Labor Agreements Encouraged in Executive Order Issued by President Obama
On February 6, 2009, President Obama issued an Executive Order encouraging agencies to use Project Labor Agreements ("PLAs") in federal construction projects with a total cost to the Government of $25 million or more. The purpose of the Order is to avoid some of the problems which typically arise during the completion of such large projects causing various delays in their timely completion. "Project Labor Agreements" are defined as, "pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a... Read More
HEADLINES ADDED: April 06, 2009
Purnell announces Tower Crane Register
Secretary of State for Work and Pensions James Purnell, has announced both a statutory and voluntary tower crane register.... Read More
HEADLINES ADDED: April 04, 2009
Bid Protest Brought By Second Lowest Bidder
Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 tyles deflockedstate="false" defunhidewhenused="true" defsemihidden="true" defqformat="false" defpriority="99" latentstylecount="267"> at="true" name="heading 1"> * Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-qformat:yes; mso-style-parent:""; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin-top:0in; mso-para-margin-right:0in; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:"Times New Roman"; mso-fareast-theme-font:minor-fareast; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;} The Maryland Board of Contract Appeals (“MBCOA”) recently permitted the second lowest bidder for a project to submit a bid protest after the contractor’s bid was rejected by the procurement officer. In this... Read More
HEADLINES ADDED: March 31, 2009
Wrekin ruby saga - Tanzania gem now on eBay
The elusive ruby known as “The Gem of Tanzania” has surfaced on eBay.... Read More
HEADLINES ADDED: March 30, 2009
Construction Company to Pay $325,000 for National Origin Harassment, Retaliation
The EEOC’s complaint in U.S. District Court for the District of Arizona charged that employees Leonard Lopez and Juan Campos were subjected to harassment based on their national origin (Mexican) and retaliation for complaining about it.... Read More
HEADLINES ADDED: March 27, 2009
President Obama Signs Executive Order Authorizing Use of Project Labor Agreements for Some Federal Construction Contracts
On February 6, 2009, President Obama signed an Executive Order authorizing federal executive agencies to use project labor agreements on federal construction contracts with a total cost of $25 million or more. The Order is effective immediately, and the Federal Acquisition Regulatory Council has been instructed to take “whatever action is required” to implement the Order within 120 days of its issuance. The Order also repeals Executive Order 13202 issued by former President Bush in 2001, which forbade federal agencies and other recipients of federal funding to require contractors... Read More
HEADLINES ADDED: March 26, 2009
Local councils get list of 'banned' jargon
Contractors working for local councils could soon find themselves having much more frank conversations with their clients, after the Local Government Association (LGA) produced a banned list of the 200 worst uses of jargon.... Read More
Residence Lien Recovery Fund - The Homeowner's Responsibilities
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Residence Lien Recovery Fund - Qualified Beneficiaries
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HEADLINES ADDED: March 24, 2009
Understand Before You Sign on the Dotted Line
A recent case before the United States Court of Appeals held an employment agreement is enforceable, even when one party to the contract is ignorant of the language in which the agreement is written. A Spanish speaking employee of a general contractor entered into an employment agreement requiring any disputes arising out of the agreement be arbitrated. After being terminated by the general contractor, the employee brought a lawsuit in the District Court of the United States. The trial court found that the employee could not be bound by... Read More
A Surety's Potential Liability
RLI Ins. Co. v. Indian River School Dist., 556 F. Supp. 2d 356 (D. Del. 2008). A surety was found responsible for a contractor’s financial obligations resulting from overpayment by owner. The owner made payments in reliance on payment applications submitted by the architect that did not reflect the actual construction progress. Upon learning of the nonconformity, the owner terminated the contractor. The surety sued the architect, construction manager (CM), and the owner for negligent misrepresentation, seeking to avoid having to pay the owner. The court concluded that the presented facts warranted... Read More
HEADLINES ADDED: March 23, 2009
Obtain a Subcontractor's Proof of Insurance for Each Job
In February, 2009, in Hardee v. McDowell, the South Carolina Supreme Court addressed a contractor's ability to shift liability under the South Carolina Uninsured Employer's Fund. The subcontractor worked on various job sites for the contractor. While the subcontractor presented the contractor with proof of insurance purporting to last a year, it turned out that the policy was cancelled a day before an employee was gravely injured. The contractor sought reimbursement from the Uninsured Employer's Fund. The South Carolina Court of Appeals interpreted S.C. Code Section 42-1-415 to require a contractor to obtain proof of insurance from... Read More
Scope of Contractors' General Liability Insurance
Auto Owners Insurance Co. v. Newman, a 2008 case in the South Carolina Court of Appeals, involved a commercial general liability (CGL) insurance policy issued to a contractor. The subcontractor in the case installed stucco siding defectively, which allowed water to seep into the home and cause damage. Consequently, the owner sued the contractor for breach of contract, breach of warranty, and negligence. The court sided with the owner. The contractor’s insurance provider, Auto Owners Insurance Company, then asked a court to declare that their policy did not cover... Read More
Impact Claims Must Be Released Expressly
The United States Court of Federal Claims allowed a contractor to recover losses suffered due to over 200 contract modifications by the defendant, a government entity called the National Institutes of Health (NIH). Bell BCI Co. v. United States, No. 03-1613C (2006). The contractor, Bell BCI Company (“Bell”), built a new laboratory building for NIH. After completion, Bell filed a so-called impact claim – a cause of action to recover for the cost born by the contractor because of the great number of contract changes by the owner. The NIH... Read More
What do we stand for?
... Read More
HEADLINES ADDED: March 19, 2009
Two firms fined £18,000 after scaffolding collapse on railway lines
Two building firms have been fined a total of £18,000 after the scaffolding they erected collapsed onto a railway line at Aberystwyth station.... Read More
An Architect Could Enforce Copyrights Several Years after the Statute of Limitations Expired
In Warren Freedenfeld Associates, Inc. v. McTigue et al., 531 F.3d 38 (1st Cir. 2008), the court of appeals reversed the trial court’s decision to dismiss an architect’s complaint because the period during which he could sue had expired. The court found no facts that showed the architect had notice of the alleged copyright violation before the limitations period passed. The defendant in this case hired plaintiff, the architect, to design a veterinary hospital. According to Article 6 of the contract between them, the architect was to retain all rights... Read More
Two firms fined £18,000 after scaffolding collapse on railway lines
Two building firms have been fined a total of £18,000 after the scaffolding they erected collapsed onto a railway line at Aberystwyth station.... Read More
HEADLINES ADDED: March 16, 2009
McAlpine accused of 'paying £26,000' to blacklist firm
Sir Robert McAlpine allegedly paid more than £2,000 a month to a private detective who supplied personal details about thousands of workers.... Read More
Contractors, You Cannot Contract Out of Liability for Your Own Negligence
A general contractor may enforce an indemnification clause against its subcontractor for the damages attributable to that subcontractor's negligence. In Brooks v. Judlau Contr., Inc., 2008 N.E.2d 549 (N.Y. 2008), the Court of Appeals of New York interpreted a New York statute that stated, in essence, that a promise related to a construction contract meant to hold the promisee (the one to whom the promise is being made) not liable for injuries resulting from the promisee's or the promisee's agents' negligence was against public policy. An ironworker was injured when he... Read More
Laing O'Rourke fined £80,000 after fall from height
Laing O'Rourke has been fined £80,000, and subcontractor Durable Contracts fined £25,000 after an accident in which a worker was seriously injured.... Read More
HEADLINES ADDED: March 09, 2009
Potential 50-Foot Plunge for Worker Leads to $70,000 Penalty for Contractor
OSHA standards require an effective form of fall protection whenever employees work at heights of six feet or greater.... Read More
Laing O'Rourke fined £80,000 after fall from height
Laing O'Rourke has been fined £80,000, and subcontractor Durable Contracts fined £25,000 after an accident in which a worker was seriously injured.... Read More
Colohan fined £66,000 after digger bucket kills site supervisor
Croydon contractor P Colohan and Company has been fined £66,000 after a site supervisor died when he was hit on the head by an excavator bucket on a north London construction site.... Read More
HEADLINES ADDED: February 26, 2009
Equipment Dealer Contracts
Because of changes in the construction market, we have had, from time to time, clients move from providing contracting services to dealing equipment for their particular trade. Maryland has a specific set of statutes that govern contracts between dealers and suppliers. Here are some of the highlights.- A supplier may not directly or through an officer, agent, or employee terminate, cancel, fail to renew, or substantially change the competitive circumstances of a contract without good cause. - a supplier who terminates, cancels, fails to renew, or substantially changes the... Read More
Statutory Provisions May Affect Open-Ended Contracts
In Maryland, open-ended contracts may be affected by statutory provisions enacted after the contracts were executed. An open-ended contract is a contract that does not provide a specific date of expiration by its own terms, but will terminate only after either or both parties end the contract. In a recent Maryland case, a supplier and a dealer entered into an open-ended contract in 1984, which provided that the contract could be terminated with 120 days notice. In 1998, Maryland enacted the Maryland Equipment Dealer Act, prohibiting a supplier from... Read More
HEADLINES ADDED: February 20, 2009
The Right of Contractors to Challenge Unfair Performance Evaluations is Further Expanded by the U.S Court of Federal Claims
We recently reported (see our earlier blog article) the decision of the United States Court of Federal Claims in BLR Group of America, Inc. v. United States, issued on November 25, 2008, in which the Court opened the door to contractor challenges of unfair or incorrect performance evaluations. Coming literally on the heels of the BLR case, the Court issued another decision on December 9, 2008, Todd Construction Co., Inc. v. United States, denying a government motion to dismiss and holding that the Court had the jurisdiction to consider... Read More
Court of Federal Claims Decision Paves the Way for Contractors to Challenge the Accuracy and Fairness of Performance Appraisals
In an interesting decision issued by the United States Court of Federal Claims on November 25, 2008, in a case entitled BLR Group of America, Inc. vs. United States, the Court ruled that it had jurisdiction to consider a contractor’s claim that a Contractor Performance Assessment Report (“CPAR”) was “false and highly prejudicial.” The case arose because the Air Force had assigned a final performance rating of “Marginal” to the contractor in several categories, and had refused to amend the rating pursuant to a rebuttal presented by the contractor. Instead, the... Read More
Cumulative Impact Claim Allowed by the United States Court of Federal Claims
In a decision issued on April 21, 2008, Bell BCI Company v, United States, the United States Court of Federal Claims issued a decision that can only be described as a “slam dunk” for the contractor. The case arose from the construction of a laboratory building at the National Institutes of Health (“NIH”) in Bethesda, Maryland. Approximately nine months into construction, NIH decided to add a new floor to the building. NIH issued more than 200 contract modifications that delayed the completion of the project by 19-1/2 months, and increased... Read More
Zoning Considerations: Developers' Reliance on Representations by the County
Quail Hill v. County of Richland, Ct. App. 2008). Plaintiff bought property from the government in reliance on representations by County officers and staff regarding zoning. During that time, Richland County advertised that the Development Services Center was the primary information resource for property owners who need to know what can be done with a property. Plaintiff was later told by a county official that the parcel plaintiff was interested in buying was zoned rural, which allowed for a manufactured-home subdivision. Once plaintiff bought the parcel, he submitted a site plan for approval by... Read More
HEADLINES ADDED: February 17, 2009
More 'Jobs for British workers' protests set for tomorrow
The "British jobs for British workers" row is far from over as hundreds of unemployed workers are set to picket two construction projects for new power stations.... Read More
The New South Carolina Illegal Immigration Reform Act!
While traditionally a federal issue, numerous states have taken the immigration matter in their own hands. South Carolina has recently adopted the Illegal Immigration Reform Act (“the Act”). In their article published in the November 2008 South Carolina Lawyer, Christian E. Boesl and Charles L. Appleby IV discussed requirements of the Act that employers should keep in mind. Governor Stanford signed the Act on June 4, 2008. The Act affects both private and public employers. The Act also does not change an employer’s obligation to complete an Employment Eligibility Verification Form, however, also... Read More
HEADLINES ADDED: February 12, 2009
Two firms fined £80,000 after worker killed by concrete hose
UCS Civils and Pochin Concrete Pumping have been fined a total of £80,000 after a worker was killed during a concrete pour.... Read More
Trust Fund Statutes
Officers of a closely-held construction company usually first pay debts for which shareholders may be found personally liable such as employment taxes or personally guaranteed debts. Many states have trust fund statutes that require contract income to be held in an express statutory trust for the benefit of subcontractors. Companies who pay other debts out of this trust may face the following consequences: (1) personal liability to unpaid subcontractors; 2) nondischargeable debt in bankruptcy; (3) possible charge of criminal theft. In his article Nondischargeability of Personal Debts for Violations of... Read More
HEADLINES ADDED: February 07, 2009
Residential Property Disclosure Statement
McLaughlin v. Williams, 379 S.C. 451 (Ct. App. 2008). A purchaser could not bring a claim for fraud and negligent misrepresentation when the purchaser had notice of the defects from the inspection reports. The purchaser entered into an agreement to buy a house and scheduled a closing. The seller gave the buyer the Disclosure Statement. In addition, pursuant to the agreement between the parties, the buyer had an inspection done and obtained a Home Inspection Report. The report indicated moisture damage to the exterior of the house. Also, a termite... Read More
A Contractor Must Pay a Subcontractor All Undisputed Amounts Due
A contractor did not meet the requirements of the Texas Prompt Payment Act when the contractor wrongly withheld undisputed amounts owed to the subcontractor. ARCO Construction Company, Inc. v. Americon Services Company, Inc., 2008 WL 2058214 (Tex. App. 2008). The contractor conditioned paying the undisputed amounts upon the subcontractor’s release of claims to the disputed amounts. Americon Services Company (Americon), the subcontractor, sued the contractor ARCO Construction Company, Inc. (ARCO) for not paying for work completed on a project. A jury awarded Americon $61,000, finding that ARCO violated the... Read More
HEADLINES ADDED: February 05, 2009
Subcontractors, Be Prepared to Deal with Your Contractor's Bankruptcy - Know Your Rights, but Also Your Obligations!
As a subcontractor, you should understand the challenges that come with a contractor’s bankruptcy. Authors Jay Clark and Larry Longsdon discussed the many issues to consider when a contractor files bankruptcy in The Contractor's Compass journal. Jay Clark & Larry Logsdon, Customer Bankruptcy! What’s a Subcontractor to Do?, The Contractor’s Compass, First Quarter 2009, at 12-13. Contractors that file bankruptcy are eligible for either a Chapter 7 or Chapter 11 proceeding. Unlike a Chapter 7 case, where a trustee takes possession of the debtor’s assets, Chapter 11 allows the debtor to keep possession... Read More
Attorney's Fees in a Mechanic's Lien Action
The South Carolina Court of Appeals affirmed the lower court's ruling of limiting awarded fees and costs to the amount of the mechanic's lien. Mozingo & Wallace Architects, L.L.P. v. Grand, 379 S.C. 478 (Ct. App. 2008). An architect who got a judgment against the owner appealed the amount awarded for attorney’s fees. In the original proceeding, the architect was found entitled to foreclosure and collection of a lien on owner’s property. The trial court limited the attorney’s fees to the debt recited in the notice and certificate of... Read More
HEADLINES ADDED: February 03, 2009
Florida District Court Holds that Satute of LImitations on Construction Defect Case Did Not Begin to Run until After Transfer of Control to Association
A Florida district court found that a condominium association had 4 years during which it could bring action against a contractor, developer, and architect for construction defects. Saltponds Condominium Association (Association) was developed by SPCe="FONT-SIZE: 12pt; FONT-FAMILY: 'Times New Roman'; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA"> Developers (Developer). Walbridge Aldinger (Contractor), the defendant, was one of the contractors on the project. The Association later filed a suit against the Contractor, Developer and the project architect alleging defects in construction. The Association claimed that the alleged... Read More
Differing Site Conditions and Were They Differing After All?
A contractor was unsuccessful in appealing a denial of its claim for equitable adjustment based on differing site conditions, commercial impractibility, undisclosed superior knowledge, and failure to cooperate theories in front of the Armed Services Board of Contract Appeals (ASBCA No. 50521, February 15, 2008). Contractor Tri-State Consultants, Inc. (Tri-State) hired subcontractor Hendry Corp. (Hendry) to complete dredging work for the U.S. Army Corps of Engineers (Corps). The Corps bid solicitation described the borrow area as dynamic with strong currents and waives. When Hendry started experiencing significant difficulties, Tri-State submitted... Read More
Interpreting Contract Terms Concerning Allocation of Risk
The Armed Services Board of Contract Appeals rejected a contractor's argument that it could charge the government an "equipment" price for what was in fact a cost for weather-damaged materials (ASBCA No. 54901, January 22, 2008). C.R. Pittman Construction Company, Inc. (Pittman) contracted with the U.S. Army Corps of Engineers (Corps) to do work on a drainage canal. Because of heavy rain, the Corps delayed the project by asking that Pittman stop work for a while. As a result, 100 of Pittman's timber mats deteriorated and had to be... Read More
HEADLINES ADDED: January 31, 2009
Comply with Construction Trust Fund Statutes to Avoid Personal Liability!
Officers of closely-held construction companies usually pay debts for which shareholders may be found personally liable such as employment taxes or personally guaranteed debts first. Many states have trust fund statutes that require contract income to be held in an express statutory trust for the benefit of subcontractors. Companies that pay other debts out of this trust may face the following consequences: (1) personal liability to unpaid subcontractors; 2) nondischargeable debt in bankruptcy; (3) possible charge of criminal theft. Stephen Hess, in his article Nondischargeability of Personal Debts for Violations... Read More
Concurrent Delay Damages, Award and Allocation
Michael and Daniel Drewry discussed the downstream allocation of concurrent delay damages in the ABA newsletter Under Construction. Concurrent delays arise when two or more delays occur within the same time, affecting the owner, contractor, and/or other subcontractors. To be concurrent, the delays must be independent of each other; one delay cannot cause the next one. Most concurrency issues arise in the owner/contractor context. Drewry argues that the same upstream framework should apply downstream—from contractor to subcontractors. occur around the same time, courts will usually find they are concurrent. The... Read More
HEADLINES ADDED: January 30, 2009
No Mechanic's Lien on Property for Which Materials Have Been Fabricated but Not Delivered
The South Carolina Code provides: “A person to whom a debt is due for … materials furnished and actually used in the erection, alteration or repair of a building … by virtue of an agreement with … the owner … shall have a lien upon the building ….” S.C. Code Ann. Section 29-5-10(a) (Emphasis Added). In Wardlaw v. Troy Oil Mill, 54 S.E. 658 (S.C. 1906) a brick manufacturer sold brick to Troy Oil Mill Company to build a cotton seed oil mill. Troy Oil Mill used some of the... Read More
HEADLINES ADDED: January 17, 2009
Tricon Construction fined £10,000 after men injured in lift fall
Dundee-based Tricon Construction has been fined £10,000 at Dundee Sheriff Court following an accident in which two men were seriously injured.... Read More
HEADLINES ADDED: January 16, 2009
Rigger Faces Manslaughter Charges In Deadly NYC Tower Crane Collapse
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HEADLINES ADDED: January 12, 2009
Liquidated Damages Provision
Many construction contracts contain liquidated damages provisions. A liquidated damages provision is where the parties to the contract agree to a fixed sum as damages for the breach by one or both of the parties. It is a common misunderstanding, that the party making a claim for breach of contract must prove that they were damaged in order to recover under a liquidated damages provision. Under Maryland law, however, where a valid liquidated damages clause exists, a party need only prove a breach of the contract. Proof of damages... Read More
HEADLINES ADDED: December 22, 2008
Construction Contracts - Forum Selection
The United States District Court for Maryland dismissed a construction-related case because the contract required the case to be heard in either one of Maryland’s state court. Some construction contracts contain a provision known as a “forum selection clause”, whereby the parties to the contract agree on the location and governing law of any legal action. In this case, a $6 million dispute related to cost overruns arose between the developer and contractor of the project. Before the merits of the case could be heard before the United States... Read More
HEADLINES ADDED: December 18, 2008
OFT issues new guidelines on busting cartels
Cartel busters at the Office of Fair Trading (OFT) are making it easier for contractors to report on anti-competitive behaviour.... Read More
Surety Bonds in the Construction Industry
The importance of surety bonds in construction and specifically for the contractor is the latest topic of discussion on the Construction Business Podcast. Bill Maroney, president of the National Association of Surety Bond Producers and Senior Vice President with City Underwriting Agency Inc., joins this episode to talk about the key aspects that contractors will need to know about surety bonds and how they fit into today’s economic climate. Contact Bill Maroney Click here to go the National Association of Surety Bond Producers website Click here to go to... Read More
HEADLINES ADDED: December 17, 2008
Ex-employee jailed for £32,700 theft from builders merchant
A woman who stole £32,700 from Parker Severn builders merchants has been jailed for 20 months at Nottingham Crown Court.... Read More
Laing O'Rourke facing legal battle over Marbella development
Laing O’Rourke faces a potential winding-up order in the Irish courts following a dispute with Irish developer John Magnier.... Read More
HEADLINES ADDED: December 16, 2008
Award of Statutory Attorney’s Fees Disallowed in the Absence of a Formal Fee Agreement
In the case of Williamson v. Middleton, an employee and employer came to an agreement that the employer owed the employee $906.62 in back commission at the time of the employee’s departure from the employer’s business. After starting a new job, the employee continued seeking the commission and enlisted the service of a close friend and lawyer that had previously assisted the employee in an unrelated matter free of charge. The employee and lawyer decided they would agree on a fee at the conclusion of the case. The employer... Read More
One in 10 OFT probe firms in administration or liquidation
One in 10 of the contractors named in the OFT's bid-rigging investigation has fallen victim to serious financial problems or ceased to trade.... Read More
Inland Revenue launches clampdown on employment agencies
Contractors face tax fines as Inland Revenue reveals initiative to get tough on agencies.... Read More
HEADLINES ADDED: December 11, 2008
Irish contractors try to impose 10% pay cut on 200,000 workers
Contractors in Ireland are trying to tear up an agreed wages deal and impose a 10% pay cut on more than 200,000 construction workers.... Read More
HEADLINES ADDED: December 09, 2008
“Or Equal” or Not
This article was contributed by R. Bryan Barnes of my law firm. Bid specifications frequently contain the identification of a product to be provided by the bidder but, then allow an "or equal". Bidders who receive the contract may find themselves in the position of being unable to provide the product specified because the product manufacturer has discontinued the line, gone out of business or only provided a limited supply. The contractor’s remedy in these circumstances may differ based upon the procurement policy or procurement code of the governmental entity... Read More
Contractors slam red tape increase in Construction Act
Main contractors believe plans to amend the Construction Act announced in the Queen's Speech will increase red tape and costs.... Read More
HEADLINES ADDED: December 08, 2008
S.C. Supreme Court Rules that a Mechanic’s Lien Does Not Attach to Land When the only Work Done was Work to Prepare the Land for Landscaping
In order to file a mechanic’s lien, the party seeking the lien must have performed work in the "erection, alteration, or repair of a building or structure." S.C. Code Ann. §29-5-10(a). Section 29-5-10(a) further provides that "labor performed or furnished in the erection, alteration, or repair of any building or structure upon real estate includes the . . . work of making the real estate suitable as a site for the building or structure." In Raymond Skiba, d/b/a Skiba Landscaping and Construction v. Majorie Sue Gessner and Terral Monty... Read More
HEADLINES ADDED: December 06, 2008
Arbitration Clause Stricken for Unconscionability
In the case of Simpson v. MSA of Myrtle Beach, Inc., 644 S.E.2d 663 (S.C. 2007), an issue over the validity of the arbitration clause arose. The additional terms and agreements section of a consumer automobile purchase contract contained a broad arbitration clause. After suit was filed by the consumer, the dealer filed a motion to stay and to compel arbitration, with the consumer arguing that the arbitration was unconscionable and therefore unenforceable. The trial court denied the dealer’s motion to compel arbitration and then on appeal the Court... Read More
Proper Measure of Damages For a Claim Against Title Insurance for Newly Discovered Encumbrance is the Difference Between the Value of the Entire Tract While Encumbered and the Value of the Entire Tract Without Encumbrances.
In a recent case before the S.C. Supreme Court, Stanley v. Atlantic Title Ins. Co., 377 S.C. 405, 661 S.E.2d 62 (2008) a landowner purchased lakefront property, a portion of which, unbeknownst to the purchaser and title insurance company, served as a drain field for a neighboring tract of land. The purchaser sued the title insurance company and the case came before the South Carolina Supreme Court on the issue of measure of damages. The landowner valued the damages as the per-acre value multiplied by the number of acres affected.... Read More
Rules Established by the FAA for Vacating, Modifying, or Correcting Arbitration Awards Are the Exclusive Grounds for Modifying an Arbitration Award and Cannot be Modified by the Parties
The case Hall Street Assocs., LLC v. Mattel, Inc., 128 S.Ct 1396 (2008), arose from a dispute concerning the responsibility for clean-up of a manufacturing site when excessive levels of pollutants were found in the property’s well water. The tenant, a toy manufacturer, and the property owner agreed to arbitration. The Arbitrator ruled in favor of the toy manufacturer. The arbitration agreement included provisions that specifically required a trial court to vacate, modify, or correct any award if the arbitrator’s conclusions of law were incorrect. The trial court rejected the... Read More
HEADLINES ADDED: November 27, 2008
Work Without Visible Evidence at the Project Site
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HEADLINES ADDED: November 26, 2008
York House Construction in administration
York House Construction, which has been accused of cover pricing in the Office of Fair Trading’s (OFT) bid-rigging scandal, has gone into administration.... Read More
HEADLINES ADDED: November 25, 2008
Notice Provisions in Construction Contracts
A reader has asked whether a contractor must provide notice to preserve a claim when the contractor discovers that the plans and specifications are defective. The short answer is "yes." Virtually all construction contracts require that the contractor provide written notice of a claim. The notice provisions may differ from contract to contract, and in the instance of governmental contracts may be set by the applicable regulations, e.g., Federal Acquisition Regulations, Code of Maryland Regulations. Careful attention should be paid to the applicable notice provisions. The United States District... Read More
HEADLINES ADDED: November 18, 2008
Document Retention: Construction Projects
With the advent of electronically stored information, often referred to as ESI, courts have increasingly scrutinized the document preservation policies of businesses. The most prevalent focus has been on the need to preserve documents relevant to a dispute when a party knows or should know that their is a reasonable probability of litigation. Defining this point in time is not always easy. However, given the propensity for claims on construction projects it is important for contractors to keep this requirement in mind. The United States Court of Claims has... Read More
UPDATED - Employers Must Pay Accrued but Unused Vacation Leave
Maryland’s recent legislative session produces a mixed bag for employers. First, the good news, Maryland enacted legislation that clarifies when employers are required to pay employees accrued leave up their separation from employment. The bill corrects a recent decision issued by the Maryland Court of Special Appeals which held that employers must pay employees for accrued vacation upon their separation from employment even where the employer has a policy, which has been communicated to its employees, stating that no such entitlement exists. The new law requires employers to pay... Read More
HEADLINES ADDED: November 06, 2008
Cantillon files £400,000 counter-claim in historic Strand scheme row
The main contractor building an 11-storey hotel on the site of the BBC’s first radio broadcast has fired a counter-claim at a subcontractor suing for £1.5m.... Read More
HEADLINES ADDED: November 01, 2008
Builder accused of scamming £800,000 by lying about his qualifications
A builder who failed a practical carpentry exam has rejected claims that he was unqualified to carry out building projects.... Read More
Firms fined £130,000 after worker falls 23m to his death
Two firms have been fined £130,000 following the death of a man who fell 23m in Maidstone, Kent.... Read More
HEADLINES ADDED: October 16, 2008
'Inexperienced' builder accused of scamming £800,000
An “unqualified and inexperienced jobbing builder” scammed customers out of almost £800,000 by lying about his qualifications, a court has heard.... Read More
'Inexperienced' builder accused of scamming £800,000
An “unqualified and inexperienced jobbing builder” scammed customers out of almost £800,000 by lying about his qualifications, a court has heard.... Read More
HEADLINES ADDED: September 24, 2008
Eight busted in raids on Scottish construction sites
Police have continued their crackdown on rogue security firms in Scotland, raiding seven construction sites in Coatbridge, North Lanarkshire.... Read More
HEADLINES ADDED: September 22, 2008
Court clarifies public works contract claims procedures in relation to government tort claim procedures
On August 25, 2008, a California appellate court held that compliance with the claims procedures set forth in a public works contract relieves a contractor from the requirement to file a government tort claim prior to filing a lawsuit, unless the contract expressly mandates that a government tort claim also be filed. (Arntz Builders v. City of Berkeley (2008) 166 Cal.App.4th 276.)The case involved a construction contract between Arntz Builders (Arntz) and the City of Berkeley (City) for the renovation of the Berkeley Central Library. The contract set forth... Read More
HEADLINES ADDED: September 15, 2008
Liverpool firm fined £15,000 after fall from height
A Liverpool construction firm has been fined £15,000 after failing to implement safe systems for working at height.... Read More
Court clarifies subcontractor substitution requirements
A California appellate court recently clarified the requirements for substitution of a subcontractor on a public works project under Public Contract Code sections 4100-4114. (Titan Electric Corp. v. Los Angeles Unified School District (2008), 160 Cal.App.4th 188.) Public Contract Code section 4107 prohibits a contractor on a public works project from substituting a subcontractor unless the public agency consents to the substitution, and one of nine specific statutory circumstances has occurred. Section 4107 also requires the public agency to provide notice to the subcontractor being removed and to conduct... Read More
HEADLINES ADDED: September 10, 2008
Developers Have a Fiduciary Duty to Property Owners Associations
In Concerned Dunes West Residents, Inc. v. Georgia-Pacific Corporation, 349 S.C. 251, 562 S.E.2d 633 (2002),the South Carolina Supreme Court held that a developer has a duty to ensure that the roads and other common areas are in good repair at the time ownership of the common areas are transferred to a property owner’s association or to provide the association with sufficient funds to bring those common areas up to standard as of the date of the transfer. The court also held that the developer was responsible for making... Read More
Legal 500: the top construction law firms
Unsure where to turn to for legal aid? Contract Journal is the media partner for Legalease’s Legal 500, an authoritative listing of the country’s top law firms. Read on to find out who you would want representing you should you find yourself in court.... Read More
HEADLINES ADDED: September 05, 2008
New Final Rule from OSHA Requires Employer to Pay for All Safety Equipment Costs
On November 15, 2007, OSHA issued a new final rule requiring employers to pay for all safety equipment costs. The new rule goes into effect February 13, 2008 and full compliance is required by May 18, 2008. Click here to read the final rule. This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek a competent attorney for advice on any legal matter.... Read More
HEADLINES ADDED: September 02, 2008
O'Keefe sues Cantillon for £1.5m over historic Strand scheme
A bitter legal dispute is brewing over the construction of an 11-storey hotel on the Strand.... Read More
HEADLINES ADDED: August 28, 2008
Bid-rigging: OFT probe leads to book changes
Move by Office of Fair Trading is to ensure graduates know cover-pricing is illegal.... Read More
Secondary Rules of Contract Interpretation
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HEADLINES ADDED: August 26, 2008
"Total lunacy" of construction director jailed over skylight death plunge
A company director has been jailed for one year over the manslaughter of a Chinese man who died after a fall on a Norfolk building site.... Read More
HEADLINES ADDED: August 23, 2008
"Total lunacy" of construction director jailed over skylight death plunge
A company director has been jailed for one year over the manslaughter of a Chinese man who died after a fall on a Norfolk building site.... Read More
HEADLINES ADDED: August 11, 2008
Construction boss fined after worker suffers memory loss
A construction boss who failed to report a fall that left a man with short-term memory loss put a further two employees at risk of a similar accident.... Read More
HEADLINES ADDED: August 09, 2008
Carillion fined £70,000 for worker's fatal fall
Carillion JM, formerly known as Mowlem, has been fined £70,000 after one of its employees fell 17m to his death in 2003.... Read More
Two firms fined £120,000 after death fall
Two construction firms have been fined a total of £120,000 following a fatal fall from height.... Read More
HEADLINES ADDED: August 06, 2008
How a court will assess a claimant's damages
In a recent case in the Technology and Construction Court, useful guidance was given on how the courts would assess damages in the event that a claimant's quantification of damages was unopposed by the defendant.... Read More
HEADLINES ADDED: July 29, 2008
OSHA Fines Concrete Contractor $870,000
Pay attention: OSHA has fined Broadway Concrete for 15 willful violations involving fall protection and unprotected rebar on a 50-story NYC building. Let's not let it happen again. © 2008 Hal, Reforming Project Management. | Permalink | No comments Add to del.icio.us. | Search blogs linking this post with Technorati Want more on these topics? Browse other posts tagged safety, construction.... Read More
HEADLINES ADDED: July 28, 2008
Time for JCT to embrace sustainability
As sustainability continues to move up the business agenda and with around 70% of construction contracts let on JCT standard agreements, contractors are seeking clearer guidance on green issues. Paul Howard discusses sustainability contracts.... Read More
HEADLINES ADDED: July 25, 2008
Refurbishment firm fined £7,000 after employee falls 4.5m
A refurbishment firm has been fined £7,000 after a worker fell 4.5m through a roof and onto a concrete floor.... Read More
Supreme Court sides with owners in three construction contract disputes
Glenn W. Ackerley, a partner with legal firm WeirFoulds LLP of Toronto, says three recent cases stand to have an impact on Canadian construction contract law: Double N Earthmovers Ltd. v. Edmonton (City); Design Services Ltd. v. Canada; and Tercon Contractors Ltd. v. British Columbia (Transportation and Highways).... Read More
Lawyers warn eco-town approvals could be unlawful
Government plans to push through eco-towns could be unlawful, lawyers have warned ministers.... Read More
HEADLINES ADDED: July 23, 2008
Building scam artist gets seven years jail after £120,000 con
A scammer who worked with bogus builders to con a pensioner out of his life savings has been jailed for seven years.... Read More
HEADLINES ADDED: July 22, 2008
Builder jailed after conning pensioner out of life savings
A builder has been jailed after conning a pensioner out of over £120,000 of his life savings.... Read More
HEADLINES ADDED: July 19, 2008
30,000 contractors hit with 800,000 tax fines
Around 30,000 building contractors have been hit with more than 800,000 fines since November for not filing tax returns on time.... Read More
HEADLINES ADDED: July 18, 2008
Bid rigging: CC blasts OFT over 'unsubstantiated claims'
The Construction Confederation has fired a fresh broadside at the Office of Fair Trading over its investigation of the industry.... Read More
New Britain, Conn., Contractor Faces Fines for Fall Hazards
BMA General Contractors LLC is facing $140,000 in OSHA fines for fall hazards at two Connecticut work sites. The company was cited for similar hazards in 2006 and 2007.... Read More
HEADLINES ADDED: July 17, 2008
Builder jailed after conning pensioner out of life savings
A builder has been jailed after conning a pensioner out of over £120,000 of his life savings.... Read More
Personal Liability Affirmed in Maryland Construction Trust Law Case
The Maryland Court of Special Appeals affirmed for the first time the personal liability of an individual for not paying subcontractors under the Maryland Construction Trust Law, only four weeks after issuing an opinion reversing a finding of personal liability on behalf of a managing agent who received money from a general contractor but failed to pay his supplier. See Wednesday, May 21, 2008 Blog Entry entitled “Maryland’s Construction Trust Laws Limited by Court of Special Appeals.” In the most recent case, the Court found that the subcontractor met... Read More
HEADLINES ADDED: July 15, 2008
Building scam artist gets seven years jail after £120,000 con
A scammer who worked with bogus builders to con a pensioner out of his life savings has been jailed for seven years.... Read More
The Shift in Legal Issues Affecting Construction Contractors
Fred Jacoby, Vice Chairman of Cozen OConnor, shares his experiences on the recent shift in legal issues he views to be having a significant affect on contractors. To follow up on these or other construction-related law items, you can e-mail Fred at fjacoby@cozen.com... Read More
HEADLINES ADDED: July 04, 2008
Homeowner's Refusal to Make One Payment in a Construction Installment Contract Constitutes a Substantial Breach of the Contract
The South Carolina Court of Appeals recently decided that a homeowner's refusal to make an installment under construction contract constituted a substantial breach of the contract. See Silver v. Aabstract Pools, 376 S.C. 585, 658 S.E.2d 539 (Ct. App. 2008). A homeowner and contractor contracted for the construction and installation of an in-ground swimming pool. The contract called for five payments upon the completion of five scheduled tasks. The homeowner made three of the payments according to the schedule, however, the homeowner refused to make the fourth payment because he... Read More
HEADLINES ADDED: June 30, 2008
“Opt-out” Class Action and Notification Procedure is the Exclusive Method of Class Action Litigation in South Carolina
In a recent decision, the S.C. Supreme Courtheld that the“Opt-out” class action and notification procedure is the exclusive method of lass action litigation in South Carolina. See Salmonsen v. CGD, Inc., 377 S.C. 442, 661 S.E.2d 81 (2008). Several homeowners instituted a class action suit seeking damages arising from the application of defective synthetic stucco Exterior Insulation and Finish System ("EIFS") to residential homes in the Charleston area. On appeal the South Carolina Supreme Court addressed procedural questions concerning the certification of the class and whether certification orders were immediately... Read More
Basis for Liens and Assessments Under the S.C. Horizontal Property Act
Liens for non-payment of assessments to a community association can arise under two different situations. First, the S.C. Horizontal Property Act provides a statutory basis for the creation of liens in the case of condominiums only. Second, liens may arise by contract through the Covenants, Conditions, and Restrictions. S.C. Code Ann. Section 27-31-190 of the S.C. Horizontal Property Act provides as follows: "The co-owners of the apartments are bound to contribute pro rata in the percentages computed according to Section 27-31-60 toward the expenses of administration and of maintenance and... Read More
HEADLINES ADDED: June 28, 2008
Maryland Expands Scope of Mechanic's Lien
This year, the Maryland legislature passed a new law that expands the definition of work or materials furnished “for or about the building” to include interior design services provided by a certified interior designer. This new legislation takes effect on October 1, 2008. This expands the scope of Maryland Mechanic’s Lien, because Maryland courts have previously held that work done or materials furnished that are not specifically listed in the Maryland Mechanic’s Lien statute cannot be the subject of a mechanic’s lien. For example, in Maryland, the court held... Read More