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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 [...]

6 Sep, 2019

Can a General Contractor Be Liable for a Subcontractor’s Employee’s Injury?

2019-09-05T09:08:32-05:00September 6th, 2019|Construction Contractor Advisor, Nebraska Construction Law, Risk Management|

The short answer is maybe.  Nebraska courts have long held that a general contractor can be held liable for a subcontractor’s employee’s injury, but only if the general contractor exercises significant control over both the worksite and the subcontractor.  The question becomes whether the general contractor’s conduct demonstrates this control. A general contractor that retains control over a subcontractor’s work has a duty to use reasonable care to prevent injuries [...]

22 Aug, 2019

Filing Your Construction Lien on Time

2019-08-19T14:46:36-05:00August 22nd, 2019|Construction Contractor Advisor, Construction Lien, Nebraska Construction Law|

As we have discussed in other blog posts, filing a construction lien on time is critical to preserving your claim. If you file a construction lien in Nebraska outside of the 120-day window, your lien will be invalid. This past week, we filed a construction lien electronically in Douglas County.  This means that we submitted the lien on-line and waited for a Douglas County employee to review the lien and [...]

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 [...]

24 Jul, 2019

Your Final Pay Application IS Your Final Pay Application

2019-07-23T08:30:19-05:00July 24th, 2019|Construction Contractor Advisor, Pay Application|

As the project is winding down, it is crucial that you include all remaining claims in your final pay application.  A recent Nebraska Court of Appeals decision drove this point home when it ruled that a contractor was not entitled to additional compensation it requested after submitting its final pay application. In ARR Roofing, LLC v. Nebraska Furniture Mart, Inc., ARR Roofing was hired to replace the roof and decking [...]

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 [...]

2 Jul, 2019

Nebraska Construction Liens–How long do they last?

2019-06-29T11:18:30-05:00July 2nd, 2019|Construction Contractor Advisor, Construction Lien|

This is a continuation of the series of blogs on preserving your rights to get paid on a construction project.  The most effective tool you have to get paid is by filing a construction lien.  But, there’s a lot to consider before you file that lien.  This blog will cover how long your lien will last once it is filed. The Nebraska Construction Lien Act provides that your lien will [...]

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, [...]

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, [...]

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 Jan, 2015

Are You Ready For 2015?

2018-04-23T23:55:12-05:00January 5th, 2015|Best Practices, Construction Contractor Advisor|

Last month’s Engineering News Record Magazine contained an editorial noting the worst projects of the year. Are you prepared if you have a bad project? As the editors aptly pointed out: By their nature, bad projects disappoint owners, incite hostility among team members, slip months and years past scheduled completions and drain finances. ENR pointed noted a few projects from 2014 that did not go well.  They included: Wayne County [...]

29 May, 2014

CGL Coverage in Nebraska

2018-04-23T23:55:14-05:00May 29th, 2014|Construction Contractor Advisor, Insurance coverage|

After last week’s blog about what is covered by a CGL policy, I received a number of questions about whether Nebraska courts would cover faulty workmanship. So, what is covered by a CGL policy in Nebraska? The latest Nebraska Supreme Court case on this issue, Auto-Owners Ins Co v Home Pride Companies Inc, in 2004, ruled that faulty workmanship is not covered under a CGL policy. But, the insurer was [...]

15 Dec, 2013

Is the Accepted and Completed Work Doctrine Evolving?

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

A recent case out of Colorado raises a question as to the continued use of the accepted and completed work doctrine and indicates that courts are abandoning the rule in favor of the foreseeability rule. Nebraska courts still apply the accepted and completed work, but change may be afoot.  Let's take a look at these two rules. Accepted and Completed Work Doctrine Under the completed and accepted rule, an independent [...]

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 [...]

29 Jan, 2013

Construction Related Bills Before the Nebraska Legislature

2013-01-29T08:00:17-06:00January 29th, 2013|Construction Lien|

 As you may know, the Nebraska Legislature is back in session. During the first ten days of the session, senators may present bills to be considered throughout the session. So far, over 400 bills have been introduced. I’ve come across two bills that may be of interest to Nebraska’s Construction Industry and they both relate to construction liens. Legislative Bill 3—This bill, introduced by Senator Krist, would require that when [...]

24 Jan, 2013

No Damage for Delay Clauses–Contractor Beware

2013-01-24T10:00:15-06:00January 24th, 2013|Construction Contracts|

Are you reviewing the first contract of the New Year yet? If you are, I hope you are looking to see whether it contains a no damage for delay provision. These provisions are enforceable in Nebraska and can turn a viable project into a disaster. What is a no-damage-for-delay provision? Generally speaking , a no damage for delay provision places the risk of loss caused by a delay on the [...]

15 Jan, 2013

Protecting Your Rights as a Subcontractor

2013-01-15T08:00:31-06:00January 15th, 2013|Subcontractor|

You know the drill – you learn about a project and you submit a bid. The bid is usually your own form, setting forth cost of materials and labor, and your contact information. This bid is an opportunity for you to incorporate some terms to improve your bargaining position with the general contractor. Some terms to consider are: Void Date. You could make your bid void unless it is accepted, [...]

10 Jan, 2013

Mediation – It’s Worth Considering

2013-01-10T08:00:42-06:00January 10th, 2013|Litigation, Mediation|

We often times get so embroiled in a dispute that voluntary resolution seems far fetched  But, mediation, where the parties work with an impartial party to generate their own solution in settling their conflict, should always be considered because of the costs savings, control and closure. Cost First, what costs are we talking about? Obviously cost includes attorney’s fees. But, internal costs are also high. Preparing for trial takes employees out [...]

1 Nov, 2012

How does Nebraska’s Prompt Pay Act Impact Your Construction Contract? Part II

2012-11-01T08:00:15-05:00November 1st, 2012|Construction Contracts|

The Prompt Pay Act, Nebraska Revised Statutes § 45-1201 to 41-1210, applies to construction contracts entered into after October 1, 2010. This is the second of two posts highlighting the key provisions of the Prompt Payment Act.  When Payments May be Withheld The Act allows a contractor to withhold payments in five situations: Retainage, as provided for in the contract, until the project is substantially completed; After substantial completion, 125% [...]

30 Oct, 2012

How Does Nebraska’s Prompt Pay Act Impact Your Construction Contract? Part I

2012-10-30T08:00:13-05:00October 30th, 2012|Construction Contracts|

Now that Nebraska’s Prompt Pay Act is in full swing, it’s a good time to consider how it will impact your rights under construction contracts. The Prompt Pay Act, Nebraska Revised Statutes § 45-1201 to 41-1210, applies to construction contracts entered into after October 1, 2010. This is the first of two posts highlighting the key provisions of the Prompt Payment Act. Impact on Public Projects The Act has clarified [...]

16 Aug, 2012

Are You Prepared to Emerge from the Recession?

2012-08-16T08:00:54-05:00August 16th, 2012|Construction Economy, Nebraska Construction|

A recent Engineering News Record had an interesting article discussing recovery risks after surviving the recession. The article, by Richard Korman, raised an interesting point of contractors taking on too much work at the backend of a recession without the necessary infrastructures in place. Not surprisingly, one of the main difficulties in emerging from a recession is that contractors are short on cash and qualified personnel. So, when a contractor [...]

29 Jun, 2012

Contract Administration – Know When You Need Help

2012-06-29T14:27:02-05:00June 29th, 2012|Construction Contracts|

A client stopped by for some help with a contract. And, to this client’s credit, they knew they were dealing with a chopped up AIA contract that had so many changes, it was hard to tell what was in the original contract and what was a revision. Construction contracts, with their indemnity, subrogation, pay-if-paid clauses, can be so complicated. But, one advantage to the forms, like those from the AIA, [...]

19 Jun, 2012

Storing Key Documents, Contract Administration, Part 3,

2012-06-19T16:19:11-05:00June 19th, 2012|Construction Contracts|

As discussed in previous posts, here and here, it is vitally important for contractors to establish a contract administration system. In this post, we will discuss maintaining key documents to successfully prove your claim. In the first two posts we discussed the importance of reading and understanding the contract, and identifying the risks and theories of recovery. In the final part of this series, we will discuss some practical advice for [...]

7 Jun, 2012

Setting Up a Contract Administration System, Part II

2012-06-07T08:15:39-05:00June 7th, 2012|Construction Contracts, Construction Law, Nebraska Construction|

As promised, here are a few more necessary steps to set up a Contract Administration System. You can find the first two steps here. Today, we’ll discuss contract risks and the theories you may pursue to recover your damages, along with checklists for making common claims. Who is Responsible for the Risk? It is important to consider who is responsible for the risk associated with the project. When considering who [...]

29 May, 2012

Does Your Company Have a Contract Administration System?

2012-05-29T15:17:56-05:00May 29th, 2012|Construction Law, Contract|

These is the first in a series of blogs that will discuss the importance of creating a Contract Administration System that will help you better track your contracts and improve your chances of recovering full payment. Below are the first 2 of 10 steps to create a Contract Administration System. But first, why set up a Contract Administration System? It is becoming increasingly difficult to get owners to pay for change orders [...]

8 May, 2012

Can you be Liable for Delay Damages Caused by a Substitute Contractor?

2012-05-08T09:35:56-05:00May 8th, 2012|Delay Damages|

A general contractor may be held liable for delays, even after the general has been terminated.  In a recent Missouri case, an owner terminated a general contractor for cause, and the owner then demanded that the terminated general contractor pay for delay damages caused by the replacement general contractor’s subcontractor. The court ultimately held that delay damages could be recovered even after the general was terminated from the project. In [...]

1 May, 2012

Are you Communicating with Your Bonding Company about Claims?

2012-05-01T14:50:01-05:00May 1st, 2012|Bond Claims, Construction Law|

How well do you communicate with your bonding company when you receive notice of a claim? A recent case out of Indiana highlights the problems that can occur if you do not investigate the claims and timely report back to the bonding company. In this case, the bonding company was contacted by various subcontractors demanding payment. The bonding company called the contractor to investigate the claim. It took several weeks [...]

24 Apr, 2012

Amending Construction Liens Can Be Tricky

2012-04-24T10:36:02-05:00April 24th, 2012|Construction Lien|

Amending your construction lien is not as easy as you might think.  You cannot simply revise the dollar amount of your claim or the location of the property, if you didn't have it right the first time. Nebraska statutes require more information in the amended lien. And, if you don’t include it, you run the risk of your lien being declared invalid. Nebraska § 52-148 authorizes the amendment of construction liens, but [...]

17 Apr, 2012

The Joys of Litigating a Construction Claim

2012-04-17T08:32:54-05:00April 17th, 2012|Building Contracts, Construction Contracts, Construction Law, Nebraska Construction|

The Nebraska Court of Appeals recently decided a construction defect claim that illustrates the frustration that may result with taking a case to trial. After one trial and two appeals, the Court of Appeals sent the case back to the trial court to try the case a second time. And, this was over a $15,000 claim. This is one of those situations where someone is saying, “Only the attorneys got [...]

7 Mar, 2012

Notice Provisions—Are you abiding by them?

2012-03-07T08:46:35-06:00March 7th, 2012|Construction Contracts, Construction Law, Nebraska Construction|

Construction contracts often contain notice provisions that a subcontractor must follow to request additional compensation for work performed. While the notice provisions are generally straightforward, they are often one sided and a subcontractor’s failure to follow them may bar the subcontractor’s claim. A common form of change order is found in the AIA A201, which provides: Claims by either the Owner or Contractor must be initiated by written notice to [...]

9 Feb, 2012

What do you mean you won’t honor your bid?

2012-02-09T15:14:51-06:00February 9th, 2012|Construction Contracts, Construction Law, Nebraska Construction|

As a general contractor, you hate to hear that your subcontractor will not honor its bid. But, there are remedies. You may even be entitled to expectation damages – the difference between what you thought you were going to pay the old subcontractor and what you paid the new subcontractor. When a subcontractor submits a bid on which the general contractor relies in bidding a project, the general contractor may [...]

31 Jan, 2012

Davis Bacon Basics

2012-01-31T16:07:40-06:00January 31st, 2012|Davis Bacon Act, Department of Labor|

With governmental projects continuing to be a major source of business in these tough times, it is important to keep in mind Davis Bacon wage requirements. If you don’t, you can be assured that the Department of Labor will come knocking on your door. Here are a few pointers on paying Davis Bacon wages: The Davis Bacon Act requires you to pay your employees a minimum Davis-Bacon wage. The wage [...]

26 Jan, 2012

Your Bid May Create a Binding Contract

2012-01-26T14:16:27-06:00January 26th, 2012|AIA Contracts, Construction Contracts|

How often have you started working on a project without a signed contract? My experience has been that subcontractors do it all the time. But, what does it mean? A recent case out of Montana sheds some light on this issue. In this case, the subcontractor submitted its bid to the general contractor. The GC signed the bid on the acceptance line, but wrote in “pending contract with the owner." After the [...]

5 Jan, 2012

Government Contracting can be Difficult

2012-01-05T12:35:25-06:00January 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 [...]

29 Dec, 2011

Employee Rights Posting Delayed to April 30th

2011-12-29T09:04:50-06:00December 29th, 2011|NLRB, Unioin Campaign, Union Free|

The NLRB has again delayed the date by which you must post the employee rights poster. This poster was originally to be posted in November, then by January 30, 2012. Now, posting requirements are delayed until April 30, 2012. You can read the NLRB’s press release here. The NLRB explained that this latest delay was requested by the federal court hearing the challenges to the rule. Those opposing the rule, [...]

22 Dec, 2011

Who’s Reviewing Your Contracts?

2011-12-22T08:13:20-06:00December 22nd, 2011|Construction Contracts, Construction Law, Contract, Nebraska Construction|

I came across a Linked-In post the other day in which an attorney was asking whether he should add any extra language to an AIA agreement between the owner and contractor. This question got me wondering how  many construction companies ponder the same question. Here are some questions to think about as you wait for the holiday party to start. Should your attorney review the contracts you are signing? And, [...]

21 Nov, 2011

What Core Competencies Do You Expect From Your Construction Attorney?

2011-11-21T17:57:12-06:00November 21st, 2011|Construction Law, Nebraska Construction|

A friend of mine, Cordell Parvin, retired construction attorney and now legal consultant, recently shared a list of core competencies that he expected new construction attorneys in his firm to learn. Here is a copy of his list. It covers everything from general knowledge of the construction industry and construction law, to contract drafting and dispute resolution.  It also contains a few items that I need to brush up on. It also got me thinking [...]

17 Nov, 2011

OSHA is Still Slapping Companies with Big Fines

2011-11-17T15:05:07-06:00November 17th, 2011|Nebraska Construction, OSHA, Penalty|

Last month, OSHA visited America’s Fiberglass Animals in Minden for a follow-up visit. To put it lightly, the follow-up visit did not go well. OSHA slapped America’s Fiberglass Animals with nearly $170,000.00 in penalties. This hefty penalty certainly makes me wonder how you are doing in your OSHA compliance. Here is a breakdown of the penalties. They fell into three categories: • $63,000.00 related to fines for failure to abate [...]

9 Nov, 2011

Wouldn’t It Be Nice to Limit Your Liability?

2011-11-09T19:21:02-06:00November 9th, 2011|Construction Contracts, Construction Law, Contract, Documentation, Limit Liability, Nebraska Construction|

Did you know that you may be able to limit your liability on a construction project? Limitation of liability provisions are enforceable in Nebraska and may provide an effective method to limit your liability. Limitation of liability clauses generally set forth the upper limit a contractor may be liable for the work it performs. These clauses often times contain language like: Contractor’s maximum liability to Owner for all damages shall [...]

28 Sep, 2011

Is the Construction Industry Headed for a Healthy Recovery?

2011-09-28T14:42:55-05:00September 28th, 2011|Construction Contracts|

Unfortunately, it does not appear that the construction industry is headed for a turnaround, yet. Last week, the U.S. Department of Commerce, Housing and Urban Development issued a report on new residential construction through August, 2011. The report noted that housing starts were down 5 percent from last July, which is the lowest it had been in three months. And this represents less than half the number of homes that [...]

13 Sep, 2011

Are you Allocating Responsibility on GREEN Building Projects

2011-09-13T10:22:47-05:00September 13th, 2011|Building Contracts, Contract, Documentation, Green Building|

Our clients are often times frustrated at the lack of clear delegation and responsibility on GREEN building projects, such as those pursuing Leadership in Energy and Environmental Design (LEED) designation. While LEED projects mandate an integrated process and seek input from all parties, there is very little guidance as to each party’s obligations. To avoid this confusion, we recommend contractors take some preliminary steps to clarify their duties and responsibilities [...]

2 Aug, 2011

So You’ve Got A Lien, Now What?

2011-08-02T16:41:49-05:00August 2nd, 2011|Construction Law, Construction Lien|

A contractor sometimes believes that once the lien is filed, they are home free for getting paid. Unfortunately, that is often not the case. There are always concerns about whether the owner has sufficient funds to pay the contractor and subcontractors. Obviously, that is why the lien was filed. There are also concerns about whether there is any equity in the property to satisfy the liens. But, even if you [...]

27 Jul, 2011

Contractor Registration – It Applies to You

2011-07-27T09:11:49-05:00July 27th, 2011|Construction Law, Contractor Registration, Nebraska Construction|

If you are a contractor doing business in Nebraska, you should be registered under the Contractor Registration Act. Although the registration requirements are not difficult, the penalties for failing to register can be significant.Under the Contractor Registration Act , all contractors performing work in Nebraska, both Nebraska and out of state companies, must be registered with the Department of Labor and obtain a registration number. The registration process is available on-line [click here] [...]