Latest News

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, [...]

24 Oct, 2015

Location, location, location—even in construction liens

2018-04-23T23:55:09-05:00October 24th, 2015|Construction Contractor Advisor, Construction Lien|

We all know the importance of filing a construction lien within 120 days of your last work. Nebraska Construction Lien Act,  § 52-137.     But, equally, if not more important is filing the construction lien on the correct property. Often times on a construction project, the exact address of the project may not be known.  And, if there are a few buildings going up on the same general site, [...]

22 Oct, 2015

Apply for Your Commercial Drone Use Exemption Now

2018-04-23T18:22:20-05:00October 22nd, 2015|Construction Contractor Advisor, Farm Management, Government Regulations, Midwest Agricultural Law|

As previously explained the Federal Aviation Administration (FAA) is working on a rule to allow commercial use of unmanned aircraft (i.e. drones) without going through the same rules for manned aircraft.  However, until the rule is finalized farmers and ranchers can apply for an exemption under Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA). The exemption process is not necessarily easy.  However, the FAA website provides [...]

19 Oct, 2015

Be Careful When Requiring Fitness for Duty Examinations

2018-04-23T23:55:09-05:00October 19th, 2015|Construction Contractor Advisor, Employee Safety|

  Fitness for Duty examinations can be an important part of an employer’s hiring and retention protocol.  The Nebraska Supreme Court recently clarified when an employer may require applicants and employees to undergo fitness for duty examinations.  In Arens v. Nebco, Inc.,  the court ruled that an employer must have a legitimate, nondiscriminatory reason for its demand that a current employee submit to a fitness for duty examination. In this case, [...]

13 Oct, 2015

The 6th Circuit Puts the Brakes on EPA Enforcing New Definition of Waters of the US

2018-04-23T18:22:20-05:00October 13th, 2015|Construction Contractor Advisor, Government Regulations, Midwest Agricultural Law, Water Law|

  The Environmental Protection Agency (EPA) was set to begin enforcing the new definition of Waters of the United States (WOTUS) on August 28, 2015.  However, several states filed suits in various jurisdictions alleging the EPA lacked the authority to expand its jurisdiction pursuant to the new definition.  Now the United States Court of Appeals for the 6th Circuit has put the brakes on the EPA's plan to enforce WOTUS [...]

12 Oct, 2015

Following My Own Advice

2018-04-23T23:55:09-05:00October 12th, 2015|Construction Contractor Advisor, E-Verify|

  I often advise clients on the use of E-Verify and the importance of getting policies and procedures in place to ensure compliance.  This is particularly true for clients that do federal and state work.  Now it’s my turn to follow my own advice. I was recently appointed to represent the Nebraska Board of Engineers and Architects.  As such, I am a contractor for the State of Nebraska.  That means I [...]

4 Oct, 2015

The Importance of Providing Notice to a Surety

2018-04-23T23:55:10-05:00October 4th, 2015|Bond Claims, Construction Contractor Advisor|

A recent case out of Missouri emphasizes the importance of providing notice to a surety when a bonded subcontractor is in default.  When the question of whether a surety will be obligated under the bond is in the balance, notice is crucial. In CMS v. Safeco Insurance Company, Safeco provided a performance bond to a subcontractor for the benefit of CMS.  The bond specifically provided: PRINCIPAL DEFAULT. Whenever the Principal [Subcontractor] shall be, [...]

29 Sep, 2015

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

2018-04-23T23:55:10-05:00September 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 [...]

21 Sep, 2015

Workplace Safety–the Unpreventable Employee Misconduct Defense

2018-04-23T23:55:10-05:00September 21st, 2015|Construction Contractor Advisor, OSHA|

I just attended an Associated Builders and Contractors meeting during which Lueder Construction discussed a fatality on one of its worksite.  OSHA fully investigated the incident and did not issue a single citation.  This is a testament to the safety plan and training Lueder had in place well before this incident.  One defense to an OSHA citation is unpreventable employee misconduct.  However, proving this defense requires substantial planning, well before an [...]

13 Sep, 2015

Suing the Lowest Bidder on Public Construction Projects

2018-04-23T23:55:10-05:00September 13th, 2015|Construction Contractor Advisor, Public Contracts|

The California Court of Appeals has allowed the second lowest bidders on public construction projects to sue the lowest bidder where it appears that the lowest bidder was only the lowest because it paid its employees less than the established prevailing wage.  This is a novel theory for recovery, but may provide for an opportunity to challenge improperly low bids. Background Between 2009 and 2012, American Asphalt outbid two asphalt companies [...]

7 Sep, 2015

NLRB Broadens the Joint Employer Standard

2018-04-23T23:55:10-05:00September 7th, 2015|Construction Contractor Advisor, Unioin Campaign|

Perhaps in anticipation of Labor Day, the National Labor Relations Board issued its ruling in Browning-Ferris Indus. of Cal. d/b/a BFI Newby Island Recyclery, establishing an easier standard for unions to prove that a joint employer relationship exists.  This will make it easier for unions to make the upstream company, like a parent company, liable for unfair labor practices, even if the upstream company had no direct involvement. Some Background [...]

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.     [...]

17 Aug, 2015

The New “White Collar” Exemption Regulations

2018-04-23T23:55:10-05:00August 17th, 2015|Construction Contractor Advisor, FLSA|

This summer the Department of Labor's Wage and Hour Division issued proposed changes to the white-collar overtime regulations under the Fair Labor Standards Act (FLSA).  The white collar exemptions include the executive, administrative, professional, outside sales and computer employee exemptions.  The focus of the proposed regulations is to increase the salary level required to qualify for the exemption from $23,660 per year to $50,440 per year.  The DOL predicts this [...]

10 Aug, 2015

OSHA Issues New Rules on Injury Record Keeping

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

On July 28, 2015, OSHA issued proposed rules seeking to clarify an employer’s ongoing obligation to make and maintain accurate records of work-related injuries and illness.  The new rules were drafted in response to the U.S. Court of Appeals decision in AKM LLC, d/b/a Volks Constructors v. Secretary of Labor, in which a contractor successfully argued that OSHA’s citation was issued well beyond the six month limitation period. OSHA’s Injury [...]

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 [...]

30 Jul, 2015

Crop Insurance Deadline: Missouri AG Tries to Buy Time for Flooded Farmers

2018-04-23T18:22:20-05:00July 30th, 2015|Construction Contractor Advisor, Crop Insurance, Midwest Agricultural Law|

Too wet to plant   Earlier this month, Chuck Koster, Attorney General for Missouri, filed a lawsuit against Tom Vilsack, U.S. Secretary of Agriculture to extend the deadline for filing  planted acreage reports.  The USDA requires most farmers in Missouri to report their planted acres by July 15 in order to secure coverage under the farmers' crop insurance policies.  The USDA allows farmers a 5 day grace period [...]

27 Jul, 2015

Insurance Policy Language Really Does Matter

2018-04-23T23:55:10-05:00July 27th, 2015|Construction Contractor Advisor, Insurance coverage|

The debate continues on whether a subcontractor’s faulty work constitutes property damage and an occurrence such that the insurer must cover the claim.  The most recent court to weigh in on this issue is the New Jersey appellate court (one step down from the New Jersey Supreme Court) in Cypress Point Condominium Association, Inc. v. Adria Towers, LLC. In this case, the condominium association sued the general contractor, who also [...]

22 Jul, 2015

OSHA Delays Enforcement of Confined Spaces Rules

2018-04-23T23:55:10-05:00July 22nd, 2015|Construction Contractor Advisor, OSHA|

In a recent Trade Release OSHA announced 60-day delay in enforcing the new Confined Spaces in Construction standard.  Here is my earlier blog on the new standard.  Full enforcement will not begin until October 2, 2015. During this 60-day temporary enforcement period, OSHA will not issue citations to employers who make good faith efforts to comply with the new standard. Employers must be in compliance with either the training requirements of [...]

18 Jul, 2015

The DOL Claims Most Independent Contractors Are Employees

2018-04-23T23:55:10-05:00July 18th, 2015|Construction Contractor Advisor, Independent Contractor|

On July 15, 2015, the Department of Labor issued an Administrator’s Interpretation asserting that most independent contractors are actually employees under the Fair Labor Standards Act.  The DOL claims that the FLSA’s broad definition of employment and “suffer to work” standard under the FLSA requires that most workers be treated as employees.  The certainly appears to be the DOL’s warning shot over the bow and companies using independent contractors should [...]

17 Jul, 2015

Syngenta Lawsuit Update: Fed. Ct. Sends Cases Back to State Court

2018-04-23T18:22:20-05:00July 17th, 2015|Biotechnology, Construction Contractor Advisor, Midwest Agricultural Law|

Syngenta cases u-turned back to state court On May 5th, 2015, United States District Judge, John Lungstrum sent two lawsuits against Syngenta back to the state courts in which they were originally filed.  The decision appears to be a major strategic victory for plaintiffs looking to keep their claims in state court and a potential blueprint for others who may want to file a claim in state court. [...]

9 Jul, 2015

Actively Engaged In Farming: The New Definition

2018-04-23T18:22:20-05:00July 9th, 2015|Construction Contractor Advisor, Farm Management, Government Regulations, Midwest Agricultural Law|

  As farm operations continue to grow and become more complex, multiple owners or members of a farming entity may consider themselves "farm managers" even though they never set a foot in the field.   Characterizing oneself as a "farm manager" may entitle the individual to benefits under certain government programs. However, to obtain benefits from such programs an individual has to be considered actively engaged in farming, which means [...]

7 Jul, 2015

Hire the Right Professional for the Job

2018-04-23T23:55:10-05:00July 7th, 2015|Construction Contractor Advisor, Construction Law|

The Deck--not quite done I had the pleasure of spending the 4th of July weekend working on a friend’s deck. Fortunately for her, and for my son and me, it was not a big project.  It just involved replacing the decking, steps and railings.  An old adage was reinforced for me this weekend--it’s better to have someone that knows what he’s doing handle some projects, than someone who dabbles [...]

6 Jul, 2015

Thank Your Founding Fathers for Mechanic’s Liens

2018-04-23T23:55:10-05:00July 6th, 2015|Construction Contractor Advisor, Lien Rights|

Yep, our founding fathers, Thomas Jefferson and James Madison specifically, were responsible for proposing the first mechanic’s lien laws in the United States.  Mechanic’s liens were not a new concept when the first law was passed in the United States; France, Spain and other countries already had them.  But, in England, where landownership was limited to the upper classes, the concept of giving a tradesman an interest in the land for [...]

29 Jun, 2015

Construction Contract Language and Insurance Coverage Must Be Consistent

2018-04-23T23:55:10-05:00June 29th, 2015|Construction Contractor Advisor, Insurance coverage|

How often do you review both the additional insured language in the contract and the insurance policy provided by a subcontractor?  My guess is, unless the project has gone off the rails, NEVER.  Well, perhaps you should to make absolutely sure the extent of the subcontractor’s insurance obligations and whether those obligations are being fulfilled. This point was recently addressed in a recent DRI article analyzing the Deepwater Horizon/BP lawsuit.  [...]

25 Jun, 2015

Getting Permission: FAA Proposes New Regulations to Legalize Drone Scouting

2018-04-23T18:22:20-05:00June 25th, 2015|Construction Contractor Advisor, Farm Management, Government Regulations, Midwest Agricultural Law|

When deciding whether to let your spouse know you are going out for a beer with friends rather than straight home for dinner, you may have heard the phrase "it is better to ask for forgiveness than it is for permission."  If you haven't heard that phrase, then I guess we do not have the same type of friends.  Recently, I have noted the truism is being entertained by those [...]

22 Jun, 2015

Record Keeping—the Devil’s in the Details

2018-04-23T23:55:10-05:00June 22nd, 2015|Construction Contractor Advisor, Construction Litigation|

Another court has found that poor record keeping will prevent recovery on a claim.  The court in Weatherproofing Tech., Inc. v. Alacran Contracting, LLC found that a contractor’s documents were a mess and that no reasonable jury could base a verdict on the contractor’s records. The underlying project involved the construction of an army training facility.  The total project cost approximated $13 million.  Alacran, the general contractor, subcontracted about $3 [...]

17 Jun, 2015

Are We Headed for a Worker Shortage?

2018-04-23T23:55:10-05:00June 17th, 2015|Construction Contractor Advisor, Construction Economy|

A recent Wall Street Journal article, Worker Shortage Hammers Builders, noted that construction industry employers are facing a tight labor market. U.S. builders shed more than 2 million jobs during and after the housing bust. Now they say they can’t find enough carpenters, electricians, plumbers and other craftsmen for a growing pipeline of work. That is certainly consistent with everything that I’ve heard and read about construction companies in the [...]

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, [...]

25 May, 2015

Do Engineers Owe a Duty to Third Parties?

2018-04-23T23:55:11-05:00May 25th, 2015|Construction Contractor Advisor, Engineers and Architects Regulation Act|

A Texas Court of Appeals, in USA Walnut Creek, DST v. Terracon Consultants, Inc., recently ruled that an engineer owed a duty to the buyer of an apartment complex, even though the engineer had no contractual relationship with the buyer.  This is an expansion of the duty professionals owe on construction projects and could signal a change in the law. In the case, Walnut Creek purchased a three year old apartment [...]

18 May, 2015

New OSHA Regulations on Confined Spaces in Construction

2018-04-23T23:55:11-05:00May 18th, 2015|Construction Contractor Advisor, OSHA|

On May 1, OSHA announced its final rules for construction workers in confined spaces.  The Final Rules, which will take effect August 3, 2015, will require more comprehensive training , with the goal of providing construction workers the same or similar protections as employees in manufacturing and general industry. The final rule will cover confined spaces such as: Crawl spaces Manholes Tanks Sewers The final rule will require the following: Confined [...]

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 [...]

27 Apr, 2015

Construction Litigation—Battles on Many Fronts

2018-04-23T23:55:11-05:00April 27th, 2015|Construction Contractor Advisor, Construction Litigation|

When you are involved in construction litigation, you have battles on several fronts, including those against subcontractors, owners, insurers and the court.  Shoring up your defenses on each of these fronts is imperative, or you may lose the battle or, worse yet, the war. A recent opinion out of the Eleventh Circuit Court of Appeals (overseeing federal courts in Alabama, Florida and Georgia) Carithers v. Mid-Continent Casualty Company, illustrates the [...]

19 Apr, 2015

Ambush Elections are Here—Are You Ready?

2018-04-23T23:55:11-05:00April 19th, 2015|Construction Contractor Advisor, Unioin Campaign|

On April 14, 2015, the National Labor Relations Board's new election rule went into effect. The new rule, which shortens the time frame for union elections, will make it easier for unions to organize.  Employers must get prepared now, not when they hear about an election.  As the NLRB Members who dissented from the final rule noted: The Final Rule has become the Mount Everest of regulations: Massive in scale and unforgiving in its [...]

13 Apr, 2015

OSHA Penalties—What Happened with International Nutrition

2018-04-23T23:55:11-05:00April 13th, 2015|Construction Contractor Advisor|

For those of you in and around Omaha, you recall the tragic collapse of International Nutrition’s plant in early 2014, killing two workers and injuring several others.  OSHA swept onto the scene and issued citations.  Surprisingly, the penalties totaled only $120,000.  While a large sum, one would think two deaths and a score of injuries would generate a larger fine.  International Nutrition appealed the penalties and they have now been [...]

6 Apr, 2015

Employee Handbooks—Your First Line of Defense

2018-04-23T23:55:11-05:00April 6th, 2015|Construction Contractor Advisor, Employee Handbook|

This spring has been busy with questions about employee handbooks.  Perhaps it is because the NLRB just issued a directive on the legality of various clauses usually contained in handbooks. Or perhaps it’s because employers, including construction companies, are realizing the importance that handbooks play in defending against claims of harassment.   Employee Handbooks Are Important Employee handbooks are an employer’s first line of defense in claims of harassment.  A [...]

30 Mar, 2015

Demanding A Reduction in Retainage

2018-04-23T23:55:11-05:00March 30th, 2015|Construction Contractor Advisor, Nebraska Prompt Pay Act|

One of the attendees of the Goldleaf Surety presentation asked a great question about reducing retention under the Nebraska Construction Prompt Pay Act, Nebraska Revised Statutes, 45-1201-45-1211.  He wanted to know whether there was any way to reduce and recover retainage during the project.  The short answer is retainage should be reduced half way through the project, but there is no right to recover retainge for work performed during the [...]

24 Mar, 2015

Des Moines Divides the House: Files suit against rural drainage districts

2018-04-23T18:22:20-05:00March 24th, 2015|Construction Contractor Advisor, Midwest Agricultural Law|

As previously reported in A House Divided, Des Moines claims its water supply has been polluted by excessive nitrogen from farm runoff drained through the rural tiling systems.  Des Moines' threat to sue neighboring rural drainage districts for failing to prevent the pollution of Des Moines water supply is no longer idle. On March 16, 2015 Des Moines filed suit against the board of supervisors of Sac County, Calhoun County [...]

23 Mar, 2015

Improper Classification Under Davis Bacon Can Be Costly

2018-04-23T23:55:11-05:00March 23rd, 2015|Construction Contractor Advisor, Davis Bacon Act|

The Department of Labor announced late last year that it had recovered nearly $2 million in back wages and fringe benefits from a subcontractor that provided constructions services at the federally funded Crescent Dunes Solar Energy Project in the Nevada desert. This was not a failure to pay Davis Bacon wages, but a failure to properly classify laborers on the project. The DOL determined that the laborers should have been [...]

17 Mar, 2015

Submitting Claims on Government Projects Can Be Tricky

2018-04-23T23:55:11-05:00March 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 [...]

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 [...]

6 Mar, 2015

A House Divided: Urban Iowa Threatening to Sue Rural Iowa for Farm Runoff

2018-04-23T18:22:20-05:00March 6th, 2015|Construction Contractor Advisor, Government Regulations, Midwest Agricultural Law, Water Law|

  Dividing the House "A house divided against itself cannot stand."  Abraham Lincoln quoted this indisputable truth in reference to the issue of slavery.  Although unlikely to lead to civil war, the debate between urban water use and rural land use is an ever increasing concern. The issue has come to head in Iowa and may be fought in court.  The city of Des Moines plans to file [...]

1 Mar, 2015

Can General Contractors Make Subcontractors Pay for OSHA Violations?

2018-04-23T23:55:11-05:00March 1st, 2015|Construction Contractor Advisor, OSHA|

OSHA has long held the opinion that general contractors may be held liable for subcontractor’s OSHA violations and the Eighth Circuit Court of Appeals, overseeing the Midwest, has agreed since 2009. To combat this risk, general contractors would be well served to incorporate targeted indemnity provisions into their subcontracts that require subcontractors to pay for all claims and costs associated with subcontractor caused OSHA violations. OSHA’s Multi-Employer Policy OSHA’s Multi-Employer [...]

22 Feb, 2015

How Long is Your Construction Warranty?

2018-04-23T23:55:11-05:00February 22nd, 2015|Construction Contractor Advisor, Nebraska Construction|

The Nebraska Court of Appeals threw a wrench into the calculation of your warranty earlier this year in Adams v. Manchester Park, LLC and Southfork Homes, Inc. In that case, the court found that the statute of limitations for a warranty claim started running after the homebuilder’s warranty expired. So, the four year breach of warranty statute of limitations did not begin until after the one year homebuilder warranty expired. [...]

15 Feb, 2015

Preserving Your Construction Claim

2018-04-23T23:55:11-05:00February 15th, 2015|Construction Claims, Construction Contractor Advisor|

A recent article in the Construction Executive discussed the importance of preserving your claim, both in terms of timeliness of submitting your claim and making sure that you aren't waiving portions of your claim when executing releases. These are all excellent points and bear some follow-up. Timing Your Claim I often review construction contracts that contain deadlines by which claims must be submitted. It may seem counter intuitive to think [...]

12 Feb, 2015

Court Finds Manure Not So Refreshing and May Be Subject to Resource Conservation and Recovery Act

2018-04-23T18:22:20-05:00February 12th, 2015|Construction Contractor Advisor, Farm Management, Government Regulations, Midwest Agricultural Law, Property Rights|

According to the Seinfeld character George Costanza; "If you consider the other choices "manure" is actually pretty refreshing."   Seinfeld - My Boyfriend - YouTube.  Well, a Washington Federal Court disagrees; meaning dairy and other livestock operations may have to re-analyze their manure management practices.  In Community Association for Restoration of the Environment (CARE) v. Cow Palace, LLC, et al, the United States District Court for the Eastern District of Washington ruled [...]

11 Feb, 2015

Beware of Statutory Limits on Change Orders

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

While change orders are always part of construction projects, it’s important to know whether a public agency is limited on how much it can increase the scope of the work through change orders. A contractor in Virginia found out the hard way that the state agency did not have the authority to increase the scope of the project and thus the contractor could not collect for the extra work. In [...]

8 Feb, 2015

Top 10 Lessons Learned from a Construction Attorney

2018-04-23T23:55:11-05:00February 8th, 2015|Best Practices, Construction Contractor Advisor|

I have had the pleasure of working with Cordell Parvin, who in his earlier career was a preeminent construction attorney, and now coaches attorneys.  Cordell has shared countless construction guides and presentations with me over the years, for which I am extremely grateful.  Below is Cordell's Lesson's Learned list, that is as true today as when he drafted it years ago. Contracts and owners are not all alike. Some are [...]

5 Feb, 2015

Improvements to AIA Contracts?

2018-04-23T23:55:11-05:00February 5th, 2015|AIA Contracts, Construction Contractor Advisor|

Joel Sciascia, general counsel for the construction management company Pavarini McGovern, made some insightful comments in the Viewpoint section of the latest Engineering News Record magazine. He argues that architects should not be the initial decision maker (“IDM”) under AIA contracts. Instead of using the architect, Mr. Sciascia suggests the use of an independent dispute-resolution board. In 2007, the AIA introduced a new concept into the A-201 documents through which the owner [...]