There’s “new.” And there’s “new to you.” And there’s “refurbished new.” And there’s “open box special new.” And there’s “floor display model new.” But when it comes to contract specifications requiring “new” equipment, one court looked to a dictionary to define it as “never used before” and “free of significant damage.” In a recent case,… Continue Reading
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Government Contractors: Threatening to File a Claim is Not the Same as Filing a Claim
Posted in Case Law, Claims and Disputes, Federal Construction, Legal TrendsWords matter. Grammar matters. Even punctuation matters: Let’s eat, Grandma! Let’s eat Grandma! For one government contractor, its claim was recently rejected by the Civilian Board of Contract Appeals because the Board found that the Contractor did not properly state its claim. In Construction Group LLC v. Dept. of Homeland Security, 15-1 BCA para. 35900… Continue Reading
Contractor Submits “Penny Bid” for Rock Removal and Loses in the End
Posted in Case Law, Contract Docs, Legal TrendsIn our house of seven children, a penny found on the ground brings laughter and excitement. You can imagine the opposite reaction when a contractor bids a penny for rock removal for a competitive bid and later discovers that there was 250% more rock than anticipated. That’s what happened recently in Celco Construction Corp. v.… Continue Reading
Brrrrrr, It’s Cold! How to Best Prepare a Delay Claim for Unusually Severe Weather
Posted in Best Practices, Case Law, Claims and Disputes, Federal Construction, TransportationIn anticipation of what could be an influx of wintry weather, the Tennessee Department of Transportation has made arrangements to ensure the state’s roadways stay clear. According to the Johnson City Press, TDOT has distributed more than 200,000 tons of salt and 2 million gallons of brine to stations in each of the state’s 95… Continue Reading
Are Construction Dispute Claims by the State Ever Time Barred? Depends.
Posted in Case Law, Federal Construction, Legal TrendsI have written before about statutes of limitation and statutes of repose relating to construction disputes. I recently learned that these principles may not apply to a public owner’s claims against design professionals and contractors. Statutes of limitation/repose? In its simplest terms, a statute of limitation is a time limit for bringing a lawsuit (i.e.,… Continue Reading
Differing Site Conditions and Why You Should Read Pages 17-20 of the Metcalf Decision
Posted in Best Practices, Case Law, Federal Construction, Legal TrendsIt’s Friday morning and there are probably better things you would like to do with your remaining day than read a 22-page government contracts decision. But if you have ever experienced a differing site condition on your project, then here is why you should read pages 17-20 of the recent decision in Metcalf Construction Company… Continue Reading
Don’t Settle Your Construction Dispute Without Checking with the (Insurance) Man
Posted in Best Practices, Case Law, Legal TrendsWho’s the Man? Ever heard of that phrase? Well, in a recent construction dispute in Maryland, “the Man” was the owner’s insurance company. And the lesson learned was: don’t settle your construction dispute without first checking with the man! In Perini/Tompkins Joint Venture v. ACE American Insurance Company (pdf), applying Maryland and Tennessee law, the… Continue Reading
Supreme Court Speaks on Forum Selection Clause in Construction Dispute
Posted in Case LawEarlier in the year, I made an April Fool’s Day joke on Twitter about the Supreme Court granting an appeal in a construction dispute. Apparently, the joke was on me…because the Supreme Court did take an appeal in a construction dispute! On December 3, 2013, the Supreme Court issued its opinion in In re Atl. Marine… Continue Reading
Application of First Material Breach in Construction Disputes
Posted in Case Law, TennesseeI have often wondered whether there is such a thing as too small a dispute. Well, the parties in Earl Faulkner v. Tom Emmett Construction Company (pdf) determined to take their $3,000 construction dispute to the Tennessee Court of Appeals. In the end, the Court gave some good instructions on the "first material breach" rule, which… Continue Reading
A Fine Line: What the Law Says about Contractor Delays to Subcontractor Work
Posted in Case LawAs a general proposition, if the owner delays the prime contractor by not performing its contractual obligations, the prime contractor is entitled to relief, including damages for delay or extensions of time. This is actually a rather common situation and most contracts contain clauses and provisions that govern such occasions. But what happens when the… Continue Reading
No April Fools’ Joke: Supreme Court Takes Appeal in Construction Case
Posted in Case LawLast week, I saw a Tweet about the United States Supreme Court granting certiorari in a construction dispute … and I thought it had to be an April Fools’ Day joke because they never take construction cases on appeal. So, being quite the jokester, I naturally sent out the following Tweet: Well, the joke is on… Continue Reading
Are There Limits to Your Freedom to Contract in Construction Agreements? Yes.
Posted in Case LawYes, there are limits to what parties can include in a construction contract. For example, many states like Tennessee have choice of law and venue statutes that make it unlawful to include a provision in a contract requiring the substantive laws of another state or the venue of litigation/arbitration in another state for real estate… Continue Reading
Mechanics Lien and Bond Claims Best Practices
Posted in Best Practices, Case Law, Claims and DisputesWhile I generally limit my guest posts to my fellow law partners, I simply could not resist sharing with you today’s post from my friend and construction attorney, Scott Wolfe, Jr., which focuses on Best Practices for filing mechanics liens and bond claims.… Continue Reading
Federal Courts Not in the Business of Cleaning Up Language on Construction Sites
Posted in Case LawWe all have preconceptions about the language you might find on the construction project. However, it is not every day that you read a court opinion and you find the following language: "…nor is it the business of the federal courts generally to clean up the language and conduct of construction sites." This came from a recent… Continue Reading
Court or Arbitrator: Who Decides Statute of Limitations Issues?
Posted in Case LawYou can imagine that with seven young children in our house, there are a substantial number of arguments on any given day. When both my wife and I are at home, the question becomes, Who decides disputes: Mom or Dad? In the construction arena, the same types of questions arise. Recently, in Bechtel Do… Continue Reading
Are Electronic Toll Collection Systems Subject to Competitive Bidding?
Posted in Case Law, Federal Construction, Tennessee, Transportation, VA, DC, MDI was working in our Virginia office this past week and was amazed at the amount of highway construction at and around Tyson’s Corner. What also caught my attention was the progress of the 495 Express Lanes project, which includes the construction of high occupancy toll (HOT) lanes that will operate on the I-495/Capital Beltway.… Continue Reading
2011 Construction Law Update Is Available
Posted in Case LawOne of the largest groups for construction lawyers is the American Bar Association’s Forum on the Construction Industry. In the weeks leading up to to the Forum’s 2012 annual meeting in Las Vegas, Nevada last month, a number of construction attorneys and I were feverishly reviewing submissions for Division 10’s annual Construction Law Update. The document is a… Continue Reading
Does a Construction Manager Have a Legal Duty for Site Safety?
Posted in Case LawToday’s guest post is written by Joe Hardesty, who handles complex litigation in construction and business disputes. He has defended and prosecuted claims for clients arising from major construction projects throughout the country, surety disputes, commercial real estate disputes and a variety of disputes arising from business transactions. He also advises clients on matters related… Continue Reading
The Supremes Side with Road Builders in Clean Water Act Case
Posted in Case Law, TransportationI had an admiralty professor at law school who would often refer to the Justices of the Supreme Court of the United States as … get this … the Supremes! In honor of Professor Jones, today’s post is about the Supremes decision in PPL Montana, LLC v. Montana, where the court declined to expand the definition of “navigable” under federal law.… Continue Reading
End of the Road for One Highway Contractor’s Claim
Posted in Case Law, Federal Construction, Tennessee, TransportationWords matter. Yesterday, the Supreme Court of Tennessee released its decision in a construction dispute between Ray Bell Construction Company and the Tennessee Department of Transportation. Where the contractor won the first two rounds at the trial court and intermediate appellate court levels, TDOT prevailed in the final appeal. The Dispute. The primary issue in… Continue Reading
Ghostly Voice: “Tennessee Supreme Court Addresses Non-Delegable Duties to Subcontractors”
Posted in Case Law, TennesseeHappy Halloween! Today’s post is not about ghosts, ghouls and goblins, though. It’s much scarier … it’s about contractors, subcontractors and insurance companies! (….shriek….) In a noteworthy decision issued last week, the Tennessee Supreme Court held that all construction contracts have an implied duty on part of the contractor to perform in a "careful, skillful,… Continue Reading
Spearin and Luria Bros: Two Cases Every Federal Contractor Should Know
Posted in Case Law, Federal ConstructionWhere is the best place to start when you have been away from work for a family emergency? Naturally, you go back to the basics. In my next few posts, I review some of the "basic building block" or "essential" construction cases every contractor should know. The first two are Spearin and Luria Bros. U.S.… Continue Reading
Who Can Help Interpret a Construction Contract: No One? The Contract? The Industry?
Posted in Case Law, Contract DocsLast week, the Supreme Court of Tennessee heard oral arguments on a contract interpretation issue in a construction dispute between Ray Bell Construction and Tennessee Department of Transportation. You can get the details here, but the real lesson is one about how to interpret contracts, whether you are talking about the scope of work, changes, compensation… Continue Reading
What Happens When Parties Are “Unclear” in Their Construction Contracts?
Posted in Case Law, Federal ConstructionLast week I wrote a post about what is considered timely acceptance of a subcontractor’s quote. My friend and former colleague, Brian Waagner, submitted a comment to that post, focusing on the importance of a written contract. Brian also blogs at The Contractor’s Perspective. Brian’s comments are on-point, so I have included them here as… Continue Reading