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14 Nov, 2019

What Can You Do to Get Paid on Your Project?

2019-11-13T18:47:44-06:00November 14th, 2019|Construction Contractor Advisor, Construction Contracts, Getting Paid|

Recently, I have had a number of conversations with contractors that are worried about getting paid on a project. Invariably, these contractors want to know what they can do to get what they are owed. Rarely is there an easy button to force these funds out of the owner or upstream contractor’s hands. And, a number of factors will figure into the analysis. A few things I would want to [...]

23 Oct, 2019

Construction Contracts—Considering the Long Game

2019-10-21T13:47:45-05:00October 23rd, 2019|Attorney Fees, Construction Contractor Advisor, Construction Contracts|

 A recent case out of Maryland ruled that a subcontractor must pay a general contractor $2,500,000 for construction defects arising out of a 2004 project.  Now, the case did take three years to wind its way through the courts, but would you be ready to defend even a 12-year-old claim?  Would you have kept the contract and documents related to the project?  Background This project involved the construction of a [...]

13 Sep, 2019

Do You Have Lien Rights under a Pay-if-Paid Contract?

2019-09-11T10:18:30-05:00September 13th, 2019|Construction Contractor Advisor, Construction Contracts, Construction Lien, Pay-if-Paid|

How often do you review the payment terms of a contract with an eye toward whether you are waiving lien rights under that contract? This is something you should consider if your contract contains a pay-if-paid clause. I am often times asked about the difference between a pay-when-paid and pay-if-paid clause. The real difference is that a pay-when-paid clause simply allows a contractor a reasonable amount of time by which [...]

1 Aug, 2019

Waiving Goodbye to Liquidated Damages

2019-08-01T09:37:40-05:00August 1st, 2019|Construction Contractor Advisor, Construction Contracts, Liquidated Damages, Nebraska Construction|

Construction contracts often contain liquidated damage provisions, requiring a contractor to pay a set amount for each day the project is delayed.  But, as the Nebraska Supreme Court recently ruled, in U.S. Pipeline v Northern Natural Gas, an owner can waive liquidated damages where its actions induce the belief that the owner intended to waive liquidated damages. In this case, the parties agreed that the work would be done in [...]

19 Jul, 2019

What Is the Work?

2019-07-23T07:45:14-05:00July 19th, 2019|Construction Contractor Advisor, Construction Contracts|

When you review a construction contract, are you also reviewing the description of the Work that you’ll be doing?  I mean, are you really looking at that section to make sure that it accurately describes what you will be doing, and perhaps more importantly, it identifies Work that you will not be doing?  I recommend that you spend a few extra minutes with your contracts to make sure the Work [...]

9 Jul, 2019

Construction Project Problems–Who has to Pay for It?

2019-07-01T08:51:00-05:00July 9th, 2019|Construction Claims, Construction Contractor Advisor, Construction Contracts|

I often harp on the importance of having an experienced construction attorney review your construction contracts.  A recent situation at Dartmouth College emphasized the importance of anticipating the unexpected when reviewing your construction contracts. Dartmouth is building a new $200 million engineering school, with a 340 vehicle underground parking garage. The first step was to dig a 70-foot-deep hole for the 160,000 square foot building.  The problem is that the [...]

11 Jun, 2019

Construction Payments Held in Trust—Another Tool to Pursue Payment

2019-06-10T11:05:33-05:00June 11th, 2019|Construction Contractor Advisor, Construction Contracts, Trust Fund|

Construction contracts often require contractors to receive and hold payments in trust for the benefit of paying labor and materials furnished on a project.  The purpose of the trust is to protect downstream contractors and suppliers from the risk of nonpayment of their claims against a financially distressed contractor. Trust Contract Provision A typical trust provision provides: All sums received by Contractor under this Contract are received by Contractor in [...]

30 May, 2019

Your Contract is a Hodgepodge of Conflicting Proposals

2019-05-26T19:32:25-05:00May 30th, 2019|Construction Contractor Advisor, Construction Contracts|

Ouch.  That’s what a New York judge called a contract to remediate petroleum contamination at 47 gas stations.  Sometimes, it’s hard to believe the contracts that get signed. In this case, Environmental Risk hired subcontractor Science Applications to remediate petroleum contamination at 47 gas stations.  Environmental Risk first required its subcontractor to sign a Professional Services Master Agreement.  Environmental Risk then required its subcontractor to sign three separate, but basically identical, [...]

28 May, 2019

Dinosaur Bones Discovered on Work Site—What?

2019-05-23T08:15:31-05:00May 28th, 2019|Construction Contractor Advisor, Construction Contracts, Delay Damages|

What if you came across dinosaur bones on the work site like they did on a project in Denver, Colorado?  Would you get extra time to complete the work?  What does the construction contract allow? Let’s play out that scenario. You reach out to your local construction lawyer and inform him that your project has been delayed because you came across dinosaur bones.  After he stops giggling about the situation, [...]

16 May, 2019

Never Underestimate the Importance of Contract Language

2019-05-11T09:00:03-05:00May 16th, 2019|Construction Contractor Advisor, Construction Contracts|

A recent article in ENR described the setbacks associated with a public rail project.  There are problems with the schedule, concrete quality, including precast girders , panels and rail ties, and allegations of fraud.  In a nutshell--a mess.  But, I wonder if there are contract provisions that address these problems.  Below are some problems on the project and my thoughts on contract provisions. Schedule. The article mentions that the general [...]

7 May, 2019

Construction Material Costs are Rising–Are You Protected?

2019-05-06T10:19:26-05:00May 7th, 2019|Construction Contractor Advisor, Construction Contracts, Escalation Clause|

Construction material costs are rising, at least that’s what AGC, ABC, ACEC, ENR and the government are saying.  So, let’s assume that its true—construction material costs are rising.  What can you, as a general contractor or subcontractor do about it? Not surprisingly, it all comes down to your contract and whether you included a cost escalation clause. What is a Cost Escalation Clause? These clauses are pretty self-explanatory in [...]

23 Apr, 2019

The Risk of Conflicting Contract Provisions

2019-04-20T08:11:50-05:00April 23rd, 2019|Construction Contractor Advisor, Construction Contracts|

On large construction projects, with several layers of contractors, there is the risk of conflicting contract provisions.  For example, the owner’s architect may use an AIA contract, the general contractor may use its own contract with the subcontractors, and some subcontractors may use their own contract with subsubcontractors.  With so many contracts, there are almost certainly conflicting provisions, be it relating to indemnity, insurance and waivers of damages.  It is [...]

2 Apr, 2019

Construction Contract Review—Sole Discretion

2019-03-28T14:06:04-05:00April 2nd, 2019|Construction Contractor Advisor, Construction Contracts|

General contractors and owners often time include language in construction contracts that provides them with sole discretion to make decisions.  These provisions can severely limit a subcontractor’s ability to negotiate changes or increased pay applications. What do these phrases look like? The “sole discretion” language can take a number of forms, including: Contractor reserves the right, in its sole discretion to . . . As solely determined by Contractor ____ [...]

14 Mar, 2019

Getting Paid for Your Work

2019-03-14T07:38:09-05:00March 14th, 2019|Construction Contractor Advisor, Construction Contracts, Pay-if-Paid|

I’ve reviewed three construction contracts this week and all three of them contained a pay-if-paid clause.  Are you signing contracts with pay-if-paid clauses? Here are some suggestions to minimize your risk with pay-if-paid clauses. What is a pay-if-paid clause? Pay-if paid clauses eliminate the general contractor’s obligation to pay subcontractors if the general contractor does not get paid.   Courts reviewing these clauses have found that a subcontractor that signs a [...]

5 Jan, 2016

Your Contract is a Hodgepodge of Conflicting Proposals

2018-04-23T23:55:09-05:00January 5th, 2016|Construction Contractor Advisor, Construction Contracts|

Ouch.  That’s what a court called a contract to remediate petroleum contamination at a number of gas stations in New York.  Sometimes, it’s hard to believe the contracts that get signed. Environmental Risk hired Science Applications to remediate petroleum contamination at 47 gas stations.  Environmental Risk had previously entered into a Professional Services Master Agreement with Science Applications, but also required Science Applications to sign three separate, but basically identical, subcontracts called [...]

7 Dec, 2015

Changing Course Midstream Did Not Work in River Dredging Project

2018-04-23T23:55:09-05:00December 7th, 2015|Construction Contractor Advisor, Construction Contracts, Government Contracting|

  A contractor learned a $12M lesson when it tried to change course on a Corps of Engineer river dredging project.  The case also illustrates the importance of documenting problems on a project and providing notice of those problems to the owner. In Weston/Bean Joint Venture v U.S., Weston/Bean was awarded a Corps of Engineers project to provide maintenance dredging on the Miami River to a depth of 15 feet.  [...]

2 Nov, 2015

Know Your Obligations Under Both the Prime Contract and Subcontract

2018-04-23T23:55:09-05:00November 2nd, 2015|Construction Contractor Advisor, Construction Contracts|

A recent case out of New Mexico highlights the importance for subcontractors to review their contract with the general and the contract between the general and the owner.  In Centex/Worthgroup, LLC v. Worthgroup Architects, L.P, the architect claimed that the limitation of liability clause in the prime contract trumped the provisions of the subcontract.  The court disagreed and ruled that the specific provision in the subcontract controlled. In the case, [...]

30 Aug, 2015

Liquidating Agreements—Bridging the Privity Gap for Subcontractors

2018-04-23T23:55:10-05:00August 30th, 2015|Construction Contractor Advisor, Construction Contracts|

What is a subcontractor to do when the owner has demanded additional work, but has refused to pay for it?  Typically, a subcontractor cannot sue the owner because the subcontractor doesn’t have a contract with the owner.  Perhaps the subcontractor and general contractor should enter into a liquidating agreement through which the general contractor can pursue the claim on behalf of the subcontractor. Liquidating agreements bridge the privity gap between [...]

24 Aug, 2015

Flow-Down Clauses Can Drown Your Project

2018-04-23T23:55:10-05:00August 24th, 2015|Construction Contractor Advisor, Construction Contracts|

Flow-Down or pass-through clauses obligate downstream contractors to certain provisions contained in the up up-stream contractor contracts, such as the contract between the general contractor and the owner.  These clauses are contained in every major form subcontract and they can expand the scope of your potential liability.  This blog will look at typical language of a flow-down clause, what it means and how you can deal with them.     [...]

3 Aug, 2015

Subcontractors Have a Duty to Clarify Ambiguities in Bid Documents

2018-04-23T23:55:10-05:00August 3rd, 2015|Construction Contractor Advisor, Construction Contracts|

Several months ago, I wrote about an escalator subcontractor that sued a general contractor, demanding payment for work completed based on approved shop drawings.  The trial court agreed with the subcontractor, but the general contractor appealed.  Ten months later, the Court of Appeals reversed, finding that the subcontractor had a duty to bring to the general contractor’s attention major discrepancies or errors they detect in the bid documents. The subcontractor [...]

8 Jun, 2015

The Problem with One Year Warranties

2018-04-23T23:55:11-05:00June 8th, 2015|Construction Contractor Advisor, Construction Contracts|

Contractors often ask if they should include a one year warranty in their subcontracts.  I tell them that they can, but it may be more effective to include a one-year correction period.  If a contractor does include a warranty in the contract, it may actually extend the time in which a contractor may be sued. I recommend instead a Correction Period. Typical Construction Warranties Form construction contracts, like the AIA forms, [...]

11 May, 2015

Suspend the Work, but Don’t Get Fired

2018-04-23T23:55:11-05:00May 11th, 2015|Construction Contractor Advisor, Construction Contracts|

Getting paid for your work is often times one of the hardest parts of a project.  If you find yourself working without getting paid, it’s easy to think, “I’ll just stop working until I get paid.”  While the law may support you in that decision, the contract may not and you may be found in breach of the contract if you walk off the job. Nebraska Law Nebraska courts have [...]

4 May, 2015

Indemnity Clauses—What do they mean, and what should you be looking for?

2018-04-23T23:55:11-05:00May 4th, 2015|Construction Contractor Advisor, Construction Contracts|

It seems that every construction contract now-a-days, contains an indemnity clause.  Contractors should be reviewing these indemnity clauses very carefully to understand the potential scope of an indemnity obligation and your opportunity to negotiate changes. What is an indemnity Clause? An indemnity clause transfers risk from one party to another.  When a contractor signs an indemnity agreement, it is agreeing to pay for damages for which another party could be [...]

8 Mar, 2015

Pay-if-Paid Clauses, Nasty, but Enforceable

2018-04-23T23:55:11-05:00March 8th, 2015|Construction Contractor Advisor, Construction Contracts|

I am preparing for a presentation this week on Troublesome Contract Clauses to the Construction Specifications Institute (“CSI”), Nebraska Chapter. One of the clauses we will be discussing is the dreaded Pay-if-Paid clause, a particularly nasty provision that places the risk of owner's solvency squarely on the subcontractor's shoulders.  While pay-if-paid clauses can create tremendous problems for subcontractors, they are enforceable. Pay-if-Paid clauses eliminate the obligation to pay the subcontractor [...]

23 Sep, 2014

Fundamental Fairness Trumps Contract Language

2018-04-23T23:55:13-05:00September 23rd, 2014|Construction Contractor Advisor, Construction Contracts|

The Texas Supreme Court recently ruled that a “no-damages-for-delay” clause would not be enforced where the delay was caused by the owner. The court’s ruling flies squarely in the face of the contract language that attempted to insulate the owner from any delay claims, even those it caused. In the case of Zachary Construction v. Port of Houston underlying contract, proposed by the Port of Houston, was heavy handed, to [...]

3 Sep, 2014

Can an Architect, Hired by an Owner, Be Sued by the General Contractor?

2018-04-23T23:55:13-05:00September 3rd, 2014|Construction Contractor Advisor, Construction Contracts|

As is often the answer in this blog, maybe. And, it will likely depend on which state’s law is applied. Over the last few weeks, courts around the country have reached differing conclusions on whether a general contractor may sue an architect that it did not hire. Here’s the situation: The owner hires an architect to draft plans for a project. The project is then put out for bid and [...]

21 Jul, 2014

Does a General Contractor Have to Tell a Subcontractor that its Bid is Too Low?

2018-04-23T23:55:13-05:00July 21st, 2014|Construction Contractor Advisor, Construction Contracts|

We have all seen this situation before. The bids come in, the lowest is taken, and lo and behold, the subcontractor finds out that it cannot perform for the amount listed in the bid. When this happens, the subcontractor may take the position that the general contractor should have told the subcontractor that their bid was too low. The case of Fidelity And Deposit Co of Maryland v Casey Industrial [...]

9 Jul, 2014

Getting Paid for Your Work Presentation to NARI

2018-04-23T23:55:13-05:00July 9th, 2014|Construction Contractor Advisor, Construction Contracts|

I had the pleasure of presenting to the Omaha chapter of the National Association of the Remodeling Industry (NARI) last week on steps they could take to ensure that they get paid for their work. The majority of our discussion dealt with construction contracts and clauses that should be included in their construction contracts. The clauses that I recommended included: Identification of contract document Detailed scope of work Dealing with [...]

23 Apr, 2014

Mutually Agreeable Schedule Revisions–What Does that Mean?

2018-04-23T23:55:14-05:00April 23rd, 2014|Construction Contractor Advisor, Construction Contracts|

Imagine that you are on a job that is significantly delayed.  You tell the upstream contractor that performance at this late date will cost more money.  Instead of being offered more money, you are told that you have to "mutually agree" on a revised schedule.  How do you do that? One subcontractor in Oklahoma found out the hard way that walking off the job was not the answer. The case, [...]

3 Apr, 2014

Waiver of Change Order Requirements? It Can Happen.

2018-04-23T23:55:14-05:00April 3rd, 2014|Construction Contractor Advisor, Construction Contracts|

In the last post, I discussed a Montana case in which the contractor failed to follow the notice provisions contained in the contract and lost its claim because of it. But, sometimes a court will excuse your failure to follow the technical requirements of the contract. In a recent Nebraska case, the court excused a subcontractor’s failure to follow the notice provisions and allowed it proceed with its claim. The [...]

1 Apr, 2014

Know When to Provide Notice Under Your Construction Contract

2018-04-23T23:55:14-05:00April 1st, 2014|Construction Contractor Advisor, Construction Contracts|

Time and time again, courts rule that contractors must follow notice requirements in order to submit a claim for additional time or compensation. This blog looks at yet another example of a contractor that failed to follow the notice requirements and lost its demand for additional pay. This case, JEM Contracting v. Morrison-Maierle, involved a highway project in Montana. The contract provided: Contractor shall notify the Owner and Engineer in [...]

18 Feb, 2014

Contract Clauses—Termination for Non-Payment

2018-04-23T23:55:15-05:00February 18th, 2014|Construction Contractor Advisor, Construction Contracts|

How often do subcontractors continue to work on a project, waiting to get paid? The subcontractor has submitted pay applications, no one is complaining about its work, yet payment is slow. What are the subcontractor's options? Can the subcontractor terminate the contract? Maybe, but, as always, it depend on the contract language. A recent case out of Indiana sheds some light on this very issue. In Ellerman Construction v. Ohio [...]

6 Feb, 2014

The Ups and Downs of Escalator Litigation, Part II, Can the Architect Really Have the Final Say?

2018-04-23T23:55:15-05:00February 6th, 2014|Construction Contractor Advisor, Construction Contracts|

What does it mean when the architect has the “final” say on disputes? Does that prevent you from filing a lawsuit to get paid? Not necessarily. As we discussed in the last blog post, Otis Elevator installed four escalators. Otis’ shop drawings were approved before work was nearly completed, but the owner refused to accept the work. The escalators had to be changed and Otis wanted to be paid for [...]

4 Feb, 2014

The Ups and Downs of Escalator Litigation, Part I, Approved Shop Drawings Can Still Get You Sued

2018-04-23T23:55:15-05:00February 4th, 2014|Construction Contractor Advisor, Construction Contracts|

It’s never fun getting sued, especially when you didn't do anything wrong. That was the situation for Otis Elevator in a recent case. In this post we’ll look at the problem created by poorly drafted plans and specifications. In the next post we’ll review the impact of contract language that says the architect is the final decision maker on all issues. What happened? A small airport was expanding and needed [...]

30 Jan, 2014

Forum Selection Clauses—where are you going to litigate?

2018-04-23T23:55:15-05:00January 30th, 2014|Construction Contractor Advisor, Construction Contracts|

Late last year, the United States Supreme Court ruled that forum selection clauses in a construction contract are enforceable and, in some states, may require a construction dispute to be litigated outside of the state in which the project is located. The case, Atlantic Marine Construction Co. Inc., involved a construction project in Texas. Atlantic Marine was awarded a project at Fort Hood and subcontracted with J-Crew Management, a Texas [...]

23 Jan, 2014

Liquidated Damages—A Great Tool, But Hard to Use

2018-04-23T23:55:15-05:00January 23rd, 2014|Construction Contractor Advisor, Construction Contracts|

I had lunch with the American Society of Professional Estimators (ASPE) the other day and we discussed construction contracts. There were a lot of questions about liquidated damages. As I explained during the meeting, liquidated damages can provide some certainty about damages under a contract, but if the clause is unreasonable, it will not be enforced. Here is some more information on liquidated damages. What are Liquidated Damages? Liquidated damages [...]

21 Jan, 2014

Know your Site — or Pay the Price

2018-04-23T23:55:15-05:00January 21st, 2014|Construction Contractor Advisor, Construction Contracts|

Contractors are supposed to be familiar with the site and any conditions that may impact the project. AIA contracts typically include the contractor’s obligation to become familiar with the site. Yet, time and time again, site conditions cause delays and other problems on the project. The contractor on the  Seattle Tunnel project appears to be having a site condition issue on the project. Some of you may have seen all [...]

16 Jan, 2014

Arbitration Clauses Must Be Clear and Consistent

2018-04-23T23:55:15-05:00January 16th, 2014|Construction Contractor Advisor, Construction Contracts|

I bring you a case from Hawaii to warm you through this cold snap we are having. A recent case required the parties to litigate whether the arbitration clause in the contract applied to the supplemental conditions and the damages caused by the work done under the supplemental conditions. The contract at issue contained a boilerplate arbitration agreement:  Any claim arising out of or related to the contract . . [...]

5 Nov, 2013

Do You Have to Provide An Opportunity to Cure?

2018-04-23T23:55:16-05:00November 5th, 2013|Construction Contractor Advisor, Construction Contracts|

You know the situation – your subcontractor is doing a horrible job and you want them off the job. If you terminate the contract and bar them from jobsite, do you have to provide an opportunity them an opportunity to cure? You may if you are thinking about back charging the subcontractor for repairs. A recent case out of Oregon discussed this very situation. There, the general contractor terminated the [...]

15 Oct, 2013

Agreements to Agree Are Not Enforceable Contracts

2018-04-23T23:55:16-05:00October 15th, 2013|Construction Contractor Advisor, Construction Contracts|

Sometimes contractors join forces to prepare a bid and enter into a teaming agreement. Under the teaming agreement, they agree that, at some future date, they will agree on the terms of the contract for the work. The problem arises when the general contractor, after winning the bid, tells the subcontractor that they will not be working together. Sometimes the subcontractor sues to enforce the teaming agreement. And usually, the [...]

19 Sep, 2013

Are You Limiting Your Liability on Construction Projects?

2018-04-23T23:55:16-05:00September 19th, 2013|Construction Contractor Advisor, Construction Contracts|

Have you ever considered limiting your potential liability by incorporating a limitation of liability clause into your contract? Perhaps this is something worth considering. A limitation of liability clause limits the amount you will pay in the event the project goes poorly. Here is an example of a limitation of liability clause: The Owner agrees that to the fullest extent permitted by law, Architect’s total liability to the Owner shall [...]

21 Aug, 2013

Flow Down Provisions Can Cost You–A Lot

2018-04-23T23:55:17-05:00August 21st, 2013|Construction Contractor Advisor, Construction Contracts|

You likely see them in every contract. The Subcontract encompasses both the agreement itself and the underlying prime contract. But how often do you actually look at the prime contract? And, what kind of liability are you assuming under the prime contract? A small Kansas supplier learned the hard way that language in the prime contract can create substantial liability. Arch Environmental Equipment is a small bulk materials conveying equipment [...]

19 Aug, 2013

Character Counts—Even in Construction

2018-04-23T23:55:17-05:00August 19th, 2013|Construction Contractor Advisor, Construction Contracts|

I’m a Vikings fan. I've been following the political wrangling surrounding the new stadium that the Vikings’ owner, Zygi Wilf, has been trying to get built. As is sometimes the case, there are naysayers that are dissatisfied with some aspect of the project. But, the naysayers usually complain about the project itself, not the moral character of the proponent. That could be a problem.       The Vikings’ new [...]

23 Jul, 2013

Are You Protecting Yourself from Rising Material Costs?

2018-04-23T23:55:17-05:00July 23rd, 2013|Construction Contractor Advisor, Construction Contracts|

The latest Engineering News Record reported that gypsum board prices rose 12.5% in 2012 and could increase 15.11% in 2013. That’s a huge increase in material costs. Are you doing anything to protect yourself? Do you have an escalation clause in your contracts? What happens if you don’t have an escalation clause? If you don’t have an escalation clause, you are either at the mercy of the contractor to allow [...]

23 May, 2013

Additional Insured versus Indemnity—What’s the Difference?

2018-04-23T23:55:18-05:00May 23rd, 2013|Construction Contractor Advisor, Construction Contracts|

Most construction contracts require downstream contractors to indemnify or insure upstream contractors.  Isn't that just a way of saying the same thing twice?  No, under Nebraska law, and most states, a duty to indemnify may be void as against public policy, while naming an upstream contractor as an additional insured will provide more certainty that the downstream contractor’s insurer will cover a claim. An indemnity clause requires one party to pay [...]

16 Apr, 2013

An RFP Is Not an Offer to Contract

2018-04-23T23:55:18-05:00April 16th, 2013|Construction Contractor Advisor, Construction Contracts|

If a general contractor uses your estimate in response to an RFP, has the general contractor promised to hire you? A recent Missouri Court of Appeals decision says no because an RFP is not an offer to contract, but an offer to receive proposals for a contract. In Jamison Electric, LLC v. Dave Orf, Inc.,  Jamison submitted a bid to general contractor Orf in support of an RFP issued by [...]

12 Apr, 2013

Venue Clauses–Are they Enforceable in Your Jurisdiction?

2018-04-23T23:55:18-05:00April 12th, 2013|Construction Contractor Advisor, Construction Contracts|

I've had a few clients ask about the enforceability of venue clauses, those pesky provisions that attempt to dictate where a lawsuit relating to the project must be brought.  As is often the case, the answer depends on the state in which the project is located.  For some variety, I reached out to some fellow construction attorneys around the country for their thoughts and I've provided their comments below.  As [...]

21 Mar, 2013

Changes to the EJCDC Construction Contracts

2018-04-23T23:55:18-05:00March 21st, 2013|Construction Contractor Advisor, Construction Contracts|

The Engineers Joint Contract Documents Committee ("EJCDC") will be issuing its latest construction contracts on March 18, 2013. These revised contracts contain significant modifications, but two major changes involve the change-order process and insurance.  Change Orders The new contracts strive to resolve conflict quickly. To expedite claim resolution, a new step has been added in which a requested change is first labeled as a change proposal, not a change. The [...]

14 Mar, 2013

Pay-if-Paid Clauses—Do you have one in your Contract?

2018-04-23T23:55:19-05:00March 14th, 2013|Construction Contractor Advisor, Construction Contracts|

I know I sound like a broken record on this, but courts keep interpreting pay-if-paid clauses. The latest case I read was out of Ohio, Transtar Electric, Inc. v. A.E.M. Electric Services Corp., in which the trial court ruled the clause was a pay-if-paid clause, but was overruled by the Court of Appeals. In that case, the subcontract conditioned payment to the sub on payment received by the contractor from [...]

14 Feb, 2013

Key Construction Contract Provisions, Part I

2013-02-14T08:00:08-06:00February 14th, 2013|Construction Contracts|

Negotiating construction contracts can sometimes seem more difficult than the work itself. Knowing what to look for can help you in your contract negotiations. While there are any number of key contract provisions, this blog will address two: indemnity and delays. Indemnity Indemnity shifts loss from one party to another. In construction contracts, the parties can agree to shift responsibility, and more often than not, the owner or up-stream contactors [...]