Latest News

20 Jun, 2017

Don’t Get Caught Holding the Bag: Hold the State Liable When General Contractor Fails to Pay on a Public Project.

By |2018-04-23T18:22:19+00:00June 20th, 2017|Bond Claims, Breach of Contract, Construction Claims, Construction Contractor Advisor, Construction Law, Government Contracting, Lien Rights, Midwest Agricultural Law, Nebraska Construction, Payment Bond|

Holding the Bag According to a quick Google search the term "holding the bag" comes from the mid eighteenth century  and means be left with the onus of what was originally another's responsibility.  Nobody wants to be left holding the bag.  But that is the situation our client (subcontractor) found themselves in when upon completion of a public project the general contractor went out of business before paying [...]

7 Dec, 2015

Changing Course Midstream Did Not Work in River Dredging Project

By |2018-04-23T23:55:09+00:00December 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.  [...]

29 Sep, 2015

What To Do When the Government is Slow to Decide a Claim?

By |2018-04-23T23:55:10+00:00September 29th, 2015|Construction Contractor Advisor, Government Contracting|

You may know this situation all too well.  You’ve submitted your certified claim to the contracting officer and there it sits.  You ask for a decision and they say soon, but it’s not soon.  And pretty soon, several months have gone by.  Since the Court of Federal Claims’ decision in Rudolph and Sletten, Inc. v. U.S., the government may have to decide in 60 days or your claim will be [...]

17 Mar, 2015

Submitting Claims on Government Projects Can Be Tricky

By |2018-04-23T23:55:11+00:00March 17th, 2015|Construction Contractor Advisor, Government Contracting|

The Federal Circuit Court of Appeals opinion in K-Con Building Systems, Inc. v. United States illustrates the difficulties a contractor may face when pursuing a claim before a Contracting Officer. After nearly 10 years of litigation, the court found that the contractor’s claim to the Contracting Officer did not contain enough detail to allow the claim to proceed. That’s a lot of time and resources wasted on a claim that [...]

7 Jan, 2015

Maryland Contractor Documents its Illegal Deal and Pays $2.15 Million to Settle Fraud Claims

By |2018-04-23T23:55:12+00:00January 7th, 2015|Construction Contractor Advisor, Criminal Conduct, Government Contracting|

Why would a contractor create a contract for illegal work?  I really don't know. Late last year, the FBI announced that a Maryland contractor, Forrester Construction Company, agreed to pay $2.15 million dollars to resolve a criminal investigation into alleged fraud in connection with the use of disadvantaged business enterprises involving more than $145 million of District of Columbia government contracts. Under this scheme, Forrester entered into joint venture agreements [...]

15 Dec, 2014

Kiewit-Turner Stops Work on VA Project—Now What?

By |2018-04-23T23:55:12+00:00December 15th, 2014|Breach of Contract, Construction Contractor Advisor, Government Contracting|

Stop! The Kiewit-Turner joint venture created to build the VA’s hospital near Denver stopped work on December 10 after the Civilian Board of Contract Appeals ruled that the VA breached the contract. Kiewit-Turner claims that the VA owes it over $100 million on the project. And, given the appeals board’s recent ruling entirely against the VA, the claim may get some traction. This project has been plagued with [...]

25 Aug, 2014

Bid Protests—a necessary delay (evil)?

By |2018-04-23T23:55:13+00:00August 25th, 2014|Construction Contractor Advisor, Government Contracting|

Engineering News-Record had an interesting editorial commenting on the bid protests on the New Orleans airport. The article analogized bid protests to video reviews at a football game -- they cause delays, but more often than not, they provide a clearer picture of what occurred. The same can be said of bid legitimate protests. Bid protests allow for a review of the decision making process. In the New Orleans airport [...]

10 Aug, 2014

Obama’s “Fair Pay and Safe Workplace” EO Makes Federal Work More Difficult

By |2018-04-23T23:55:13+00:00August 10th, 2014|Construction Contractor Advisor, Government Contracting|

On July 31, President Obama issued yet another Executive Order to crack down on “federal contractors who put workers’ safety and hard-earned pay at risk.” The new Executive Order, called Fair Pay and Safe Workplaces, will require federal contractors to report certain labor law violations from the previous three years when submitting a bid on projects. It also prevents the use of arbitration agreements to resolve employment discrimination claims. These [...]

16 Apr, 2014

President Obama Takes Action Impacting Federal Government Contractors

By |2018-04-23T23:55:14+00:00April 16th, 2014|Construction Contractor Advisor, Government Contracting|

Earlier this month, President Obama took action to impose additional compliance obligations on federal government contractors. An executive order will prohibit federal contractors from retaliating against employees who discuss their pay with each other. He also directed the Department of Labor to adopt regulations requiring federal contractors to provide compensation data based on sex and race. Non-Retaliation: This executive order provides that contractors will not discharge or in any other [...]

25 Feb, 2014

Executive Order Raises Minimum Wage on Government Contracts

By |2018-04-23T23:55:15+00:00February 25th, 2014|Construction Contractor Advisor, Government Contracting|

On February 12, 2014, President Obama signed an Executive Order that raises the minimum wage on federal construction projects to $10.10 per hour. The raise will not be effective until January 1, 2015, and every year afterwards, the minimum wage will be increased and is tied to the Consumer Price Index. Depending on the trade, this could require an increase in wages on projects, including those covered by Davis Bacon. [...]

3 Oct, 2013

Government Shutdown—What it Means for Construction Companies

By |2018-04-23T23:55:16+00:00October 3rd, 2013|Construction Contractor Advisor, Government Contracting|

We are again in the midst of governmental shutdown. And again, construction companies are concerned about how the shutdown will impact their operations. A number of agencies, including Homeland Security, Department of Labor, OSHA, and the OFCCP have shut down significant portions of their operations. Governmental agencies submitted their contingency plans to the Office of Management and Budget, which in turn posted them on its website. Associated General Contractors (AGC) [...]

17 Sep, 2013

Michigan’s Ban on Project Labor Agreements is Upheld

By |2018-04-23T23:55:16+00:00September 17th, 2013|Construction Contractor Advisor, Government Contracting|

The Sixth Circuit Court of Appeals found that Michigan’s Fair and Open Competition in Governmental Construction Act was not preempted by the National Labor Relations Act (NLRA). This means that all branches of Michigan government, from the city, county to the state, may not enter into project labor agreements on any construction project. Michigan passed its first version of the Act in 2011. The Act bared governmental units from entering or expending [...]

12 Sep, 2013

It’s Personal, but You Still Can’t Sue the Employee

By |2018-04-23T23:55:17+00:00September 12th, 2013|Construction Contractor Advisor, Government Contracting|

Sometimes you feel like the federal government’s contracting officer is out to get you and your company. But, that doesn't mean you can sue the contracting officer personally. Three courts have now held that the Contract Dispute Act (CDA) offers a comprehensive scheme for relief from the United States government, and the CDA does not allow for personal claims against the government employee. In the most recent of these cases [...]

1 Aug, 2013

It’s Not My Fault—Design Error

By |2018-04-23T23:55:17+00:00August 1st, 2013|Construction Contractor Advisor, Government Contracting|

Sometimes, even the government’s design specifications are flawed. When the government’s design is flawed, the contractor may recover cost overruns caused by these flaws. The Spearin doctrine, which comes from a 1918 construction case against the government, holds that a contractor will not be liable for loss or damage that result solely from defects in the plan, design, or specifications provided to the contractor. This doctrine has been applied for [...]

17 Jul, 2013

Contractors Charged in $23 Million Fraud involving Veteran’s Contracts

By |2018-04-23T23:55:17+00:00July 17th, 2013|Construction Contractor Advisor, Government Contracting|

Earlier this month, two businessmen were accused of fraudulently bidding for and winning $23 million work of highway construction projects in Iowa and Nebraska. The two businessmen owned and operated Midwest Contracting, an Omaha based construction company that holds itself out as a Service Disabled Veteran Owned Company. The crux of the allegations allege that Midwest Contracting was not qualified to bid on or perform work under contracts directed toward [...]

29 Dec, 2012

What Does the Fiscal Cliff Mean for the Construction Industry?

By |2012-12-29T10:39:48+00:00December 29th, 2012|Government Contracting, Nebraska Construction|

Everyone is talking about the fiscal cliff and what will happen if the economy tumbles off the cliff. A review of AIA publications, AGC articles, and industry blogs, reveals that the outlook for the construction industry is not good if we do fall off the fiscal cliff. A recent study by the AIA analyzed the impact of going over the fiscal cliff. The study reviewed figures from the Office of [...]

4 Oct, 2012

Can the Government Give Away your Confidential Bid Information?

By |2012-10-04T14:24:19+00:00October 4th, 2012|Government Contracting|

I recently read an article in the Construction Lawyer Journal about the use of the Freedom of Information Act (FOIA) by some contractors to obtain confidential and proprietary information about the successful bidder’s bid. Quite the concept. While a contractor can protect its confidential information, it must challenge the threatened disclosure of information early on in the process or it will be disclosed. The article discussed a case brought by [...]

9 Aug, 2012

What Happens if the Person Signing the Contract Doesn’t Have the Authority to Sign?

By |2012-08-09T16:05:57+00:00August 9th, 2012|Breach of Contract, Government Contracting|

You have to deal with a big mess.  A recent case from the Board of Contract Appeals illustrates some problems that can occur.  In CPR Restoration, LLC v. Department of Veterans Affairs, CPR performed $280,000.00 worth of restoration and cleaning services and then sought payment from the VA. The VA refused, claiming that the individual that signed the contract was not authorized to sign the contract. CPR brought a claim [...]

22 May, 2012

Loss of Future Profits Can be Hard to Prove

By |2012-05-22T09:31:21+00:00May 22nd, 2012|Construction Contracts, Government Contracting|

Some of you may recall a recent post in which a drywall contractor was awarded loss of future profits against a union. As explained below, not all contractors are so fortunate to recover loss of future profits. In a recent matter before the Armed Services Board of Contract Appeals, a contractor claimed that it was forced to take out loans so that it could pay its subcontractors because the government delayed final [...]

20 Mar, 2012

Public Project Bond Claims in Iowa are Tricky–Do you Know your Deadlines?

By |2012-03-20T08:55:47+00:00March 20th, 2012|Bond Claims, Construction Lien, Government Contracting|

For those of you working in Iowa, beware of the time limits by which you must make bond claims.  On public works projects in Iowa, you have a very limited window to make your claim and the process can get even more complicated if the contractor abandons the project.    Iowa’s statute on public works bonds provides that general contractors must pay subcontractors within seven days of payment for the subcontractor’s [...]

13 Mar, 2012

Judge Invalidates PLA on New York Road Project

By |2012-03-13T14:36:40+00:00March 13th, 2012|Construction Law, Government Contracting|

Earlier this month, a judge in Albany, New York, invalidated a government mandated Project Labor Agreement (PLA), finding that the New York Department of Transportation failed to demonstrate that the PLA advanced the interests of the state’s competitive bidding statutes. A copy of the opinion can be found here. The Court’s decision took the Department of Transportation (“DoT”) to task, ultimately finding that the DoT failed to support its decision [...]

5 Jan, 2012

Government Contracting can be Difficult

By |2012-01-05T12:35:25+00:00January 5th, 2012|Construction Contracts, Construction Law, Government Contracting, Nebraska Construction|

Contractors often complain that while government contracts are good for business, the governmental bureaucracy is oftentimes more hassle than it is worth. A recent decision of the Boards of Contract Appeals and the Comptroller General drives this point home. In this recent situation, a service-disabled veteran-owned small business was the low bidder on a Department of Veteran Affairs project. However, the contracting officer determined that the low bid was unreasonably [...]