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: Project Management

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Active Interference Wins Skee Ball Points and Precludes Enforcement of A “No Damages for Delay” Clause

Posted in Case Law, Claims and Disputes, Contract Docs, Legal Trends
Last week during family skate night, my daughter asked me for two quarters to play some Skee-Ball.  I loved playing that game as a kid.  But imagine my surprise when I turned the corner and witnessed her active interference with the rules of the game! (… Truly, you can’t script this stuff…) In construction contracts, “active… Continue Reading

Say What? The Rise of Criminal Liability for Construction Accidents

Posted in Best Practices, Safety
Today’s guest post is by Chris Meyers and Cheri Gatlin, two of my fellow partners at Burr & Forman, LLP.  Chris is a partner and Cheri Gatlin is Chair of the firm’s Construction and Project Development Practice Group. The Group counsels clients throughout the U.S. on safety policies, OSHA and regulatory compliance, contracts, disputes, and all areas… Continue Reading

How Important Is That Little Green Card? Pretty Darn Important Says One Court.

Posted in Case Law, Claims and Disputes, Georgia, Legal Trends
We live in a world of e-mails, IMs, texts, Snapchats, Instagrams and the occasional fax.  Although information is transmitted instantaneously in today’s environment, proof of receipt of that information (often called “Notice”) remains subject to some very strict rules imposed by contract, case law or statute. Notice of Claims.  In a recent transportation case involving a… Continue Reading

“Paid in Full” Wives’ Tale True? When Endorsing A Check, Yes Ma’am!

Posted in Best Practices, Case Law, Claims and Disputes, Legal Trends
Long before I was an attorney, I heard this tale that if you endorsed a check that had the words “PAID IN FULL” written on the check, then you were accepting the check as full payment of what was owed.  But I had never really thought about that legal principle because, “People don’t really do… 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

Top 14 Most Common Scheduling Mistakes by Contractors

Posted in Claims and Disputes, Project Management, Scheduling
Many delay, disruption, and loss of productivity claims are lost or substantially reduced in value because mistakes, errors and carelessness are reflected in the original schedule and plan of operations. The original schedule is often the first piece of documentation that the owner receives demonstrating the contractor’s professionalism in planning and management. Contractors should pay… 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

One Awesome Case Discussing The Difference Between Delay and Disruption Damages!

Posted in Case Law, Claims and Disputes, Legal Trends, Scheduling, Texas, Transportation
Rarely do you find a case that succinctly addresses a construction law issue.  Today, one of my legal alerts pointed me to one such case dealing with delay damages and disruption damages. This is a must read! In County of Galveston v. Triple B Services, LLP, decided on May 26, 2016, the Court of Appeals of Texas… Continue Reading

Public Owner Recovers Liquidated Damages Even After Terminating Contractor for Convenience

Posted in Case Law, Claims and Disputes, Legal Trends
You can’t have your cake and eat it too.  That’s no fun!  Why even get the cake if you are not allowed to eat it?  Recently, a court held that a public owner could have both a termination for convenience, as well as liquidated damages. In Old Colony Construction, LLC v. Southington, 316 Conn. 202… Continue Reading

Proceed Wisely, Ninja Contractor, Because Suing Your DOT May Have Limitations

Posted in Case Law, Claims, Claims and Disputes, Federal Construction, Legal Trends, Transportation
No self-respecting Ninja goes into battle without a plan, right? You need to know your environment, your opponent and the rules of the battle.  For you Ninja contractors, it’s a good thing to fully understand your potential recovery before you spend countless months and thousands of dollars pursuing a claim against your state DOT for… 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

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

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

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 Trends
Words 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 Trends
In 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, Transportation
In 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