Best Practices Construction Law

Best Practices Construction Law

Best Practices Resources

Matt has written articles and given presentations on all aspects of construction law. Find a resource here.

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Best Practices top posts include claims preparation, contract drafting, and litigation pitfalls. You don’t want to miss these ones.

Matthew DeVries

Matt is a construction & litigation attorney at Burr & Forman LLP and father of seven young kids.

Category Archives: Best Practices

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Project Documentation: The Bad Little Email That Got Produced

Posted in Best Practices, Legal Trends
Believe it or not, there are always a wealth of emails and other documents produced in litigation that help “make the case” for the other side. Take, for the example, the e-mail I found in the files of one superintendent entitled “PROJECT DELAYS” … the words could not have been clearer … “I think we need to begin to tell… Continue Reading

Texas Court Gobble-Gobbles New Federal Overtime Rules

Posted in Best Practices, Federal Construction, Legislation
On this Thanksgiving Eve, contractors and other employers can take a breathe and gobble down some extra turkey and pumpkin pie without worrying about the new increases in overtime rules. On Tuesday, November 22, 2016, a Texas federal court entered a nationwide injunction blocking the U.S. Department of Labor’s (“DOL”) new federal overtime rules from… Continue Reading

How To Track Increased Construction Costs For Proving Claims

Posted in Best Practices, Claims, Claims and Disputes
I previously blogged about the importance of using daily reports to prove construction claims. In addition to daily reports, the following records should be prepared and maintained in the normal course of business to help prove claims and effectively manage the project: Correspondence file containing all correspondence relating to a specific claim, including letters and/or… Continue Reading

Eeeek! What To Do When You Find Bones or Human Remains On the Construction Site?

Posted in Best Practices, Claims and Disputes, Project Management
Last month, authorities in Suffolk, Virginia were investigating a construction site where human bones were found.  Forensic experts were called in to excavate the site and determine whether they were recent or from an old burial ground.  Has this ever happened at one of your sites? If you find bones or other archaeological artifacts during… Continue Reading

LOL! OMG. HUH? Court Finds That Text Message Can Form Binding Contract

Posted in Best Practices, Case Law, Contract Docs, Legal Trends, Project Management
In the world of Twitter, Facebook and LinkedIn, it is no secret that individuals are communicating regularly on their smartphones about their business affairs. Recently, a court addressed the question about whether a text message can constitute a writing sufficient under the Statute of Frauds to create an enforceable contract. In St. John’s Holdings, LLC… Continue Reading

Subcontractor’s Failure to Strictly Comply With Notice Provision Costs $200,000

Posted in Best Practices, Case Law, Claims and Disputes, Legal Trends, Tennessee
Whether you are an owner, contractor, subcontractor or supplier, you will want to read the rest of this post since it illustrates precisely what all those attorneys have been telling you for years: “Please, please, please read your contract.” In this instance, one party’s failure to strictly follow the contractual notice provision was a $209,235.36… Continue Reading

Top 7 Factors Affecting Labor Productivity Losses On A Construction Project

Posted in Best Practices, Legal Trends, Project Management, Scheduling
Construction labor is always in the news. Last month, I wrote an article for the Nashville Business Journal challenging industry leaders on how to respond to the shortage of skilled labor in the area.  Recently, the U.S. Department of Labor issued new overtime regulations, which no doubt will affect your workforce.  When you deal with construction… Continue Reading

Who Assumes the Risk of Material Cost Increases? As Always, It Depends!

Posted in Best Practices, Claims, Federal Construction
When a client asks me about a particular contract provision and why it is “unfair” or “uneven”, we began a discussion about risk allocation. You see, the contract is used to shift the various risks on the project to the party most appropriate to handle it.  In other words, you are negotiating about who takes… Continue Reading

Opening Up the Doors (Roads) for Design-Build Contracts on Highway Projects

Posted in Best Practices, Contract Docs, Federal Construction, Transportation
The Department of Transportation in my home state of New Mexico is the latest to allow the design-build delivery method for highway projects. Although design-build had been approved in New Mexico on limited public projects, road and highway construction had been previously excluded.  That changed on March 9, 2016, when Governor Susana Martinez signed into… Continue Reading

Contractors: Do You Have a Cell Phone Policy? Is It Time for an Upgrade?

Posted in Best Practices, Project Management
Smart phones and tablets are now commonplace on the construction job site.  Are your cell phone policies as outdated as the original the flip phones that you issued to your employees? Do you even have a cell phone policy? Given the legal risks involved with your superintendents, project managers and other employees, you should should… Continue Reading

If You Settle Your Construction Dispute, Have You Really Settled It?

Posted in Best Practices, Case Law, Legal Trends
Just this weekend, after breaking up a Minecraft dispute among four my young children, I sent them back to the world of digital building. Within minutes, they were fighting again. Makes you wonder about whether you have really settled the dispute after you have settled the dispute? The Court of Appeals of Tennessee recently addressed… Continue Reading

Do Your Employees and Construction Laborers Belong to You? Depends.

Posted in Best Practices, Federal Construction, Legislation
When walking through the mall or the grocery store with my children, I inevitably get asked, “Are they all yours?”  Depending on my mood, I may or may not claim them all.  As a general contractor, you will want to know the law on whether laborers hired through a staffing company will be considered “yours”… Continue Reading

No Lump on the Head for One Contractor’s Failure to Follow Public Bid Instructions

Posted in Best Practices, Bid Protest, Federal Construction
In our house of chaos, rules are especially important.  And when you don’t follow the rules—like no jumping on the furniture—you could end up with a lump on your head.  Just ask Jackson. In the world of government contracts, you know that rules, instructions, and directions should be followed precisely.  In the case of Silver… Continue Reading

Top 10 Compliance Laws for Federal Highway Contractors

Posted in Best Practices, Federal Construction
Following up on my post about the Yates Memo, I started to think more about the areas of compliance that federal highway contractors must face.  Contractors certify many things and interact with a wide variety of governmental agencies. Similar to what occurred after the bid-rigging scandals, governmental scrutiny has increased because of a loss of… Continue Reading

What Federal Contractors Should Know About the “Yates Memo”

Posted in Best Practices, Federal Construction
On September 9, 2015, United States Deputy Attorney General Sally Q. Yates issued a memorandum directing increased focus on individual culpability in matters of corporate wrongdoing. In addition to fines and sanctions against the corporation, the memo highlights six policy directives targeting individuals involved in corporate wrongdoing. If you are a federal contractor, watch out! According… Continue Reading

New Executive Order Requires Paid Sick Leave for Federal Contractors

Posted in Best Practices, Federal Construction
I have seven kids.  I fully understand the importance of “leave” from work when another kid comes along (…how did that happen?…) or when a close family member is sick.  But right now, they are all happy. Signed by President Barack Obama on September 7, 2015, Executive Order No. 13706 will require federal contractors and… Continue Reading

Provide Notice (and 10 Other Tasks) When Pursuing a Construction Claim

Posted in Best Practices, Case Law, Claims and Disputes, Project Management, Scheduling
When dealing with construction claims—whether one for construction defects, outstanding payment, or delay damages—an initial hurdle is making sure that proper notice has been given.  Generally, you have to make sure that you comply with the contract or insurance provisions by: (1) giving written notice of the claim; (2) to the correct party; (3) within… Continue Reading

Risk or Reward? Using Drones on Your Construction Project

Posted in Best Practices, Claims and Disputes, Technology
In this week’s issue of ENR, technology writer Luke Abaffy details the use of drones by Minnesota Department of Transportation (MnDOT) to conduct bridge inspections. We’ve all seen the YouTube videos or Facebook posts of a drone in action. The recent article in the ENR magazine highlights a new testing program by MnDOT that is… Continue Reading

ATTN: Federal Contractors, Beware of Harassment and Discrimination on Construction Sites

Posted in Best Practices, Federal Construction
“Did you hear the one about . . . ?”  Of course you have.  We have all heard the racial and discriminatory jokes at the work place.  If you are a federal contractor, you should be aware of Executive Order 11246. In separate investigations, a staffing agency and a construction company were recently charged with… Continue Reading

Tony Piazza and Eric Green: Ask The Experts Any Mediation Question!

Posted in Alternative Dispute Resolution, Arbitration, Best Practices, Mediation
When it comes to identifying the best mediators in the country, Tony Piazza and Eric Green are at the top of the list.  And, on October 8, 2015, they will be sharing the stage in Austin, Texas for the Construction ADR Summit (pdf) sponsored by the American Bar Association’s Forum on Construction Law. The program.  When a… Continue Reading

Real Estate Development and Construction Contracts: What You Need to Know

Posted in Best Practices, Contract Docs, Development
Noted author and business attorney Peter Siviglia once said: “In this world, … there are two forms of writing: creative (such as novels, plays, and poetry) and expository (such as treatises, letters, memorandums, and briefs).  I’ve tried both and prefer a third: Contracts, which do not entertain, do not convey information or ideas, and do not try to… Continue Reading