On Saturday, I took the kids to the zoo for a day-long adventure. Faith’s favorite attraction was the turtle compound that was filled with about 20 slowpokes walking a circle. Like watching paint dry, we sat on the sidelines as these mini-dinosaurs trekked the park at a whopping .25 mph. When we think of delays… Continue Reading
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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 TrendsLast 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
How Important Is That Little Green Card? Pretty Darn Important Says One Court.
Posted in Case Law, Claims and Disputes, Georgia, Legal TrendsWe 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 TrendsLong 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 DisputesI 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, SchedulingMany 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 ManagementLast 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
Subcontractor’s Failure to Strictly Comply With Notice Provision Costs $200,000
Posted in Best Practices, Case Law, Claims and Disputes, Legal Trends, TennesseeWhether 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
One Awesome Case Discussing The Difference Between Delay and Disruption Damages!
Posted in Case Law, Claims and Disputes, Legal Trends, Scheduling, Texas, TransportationRarely 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 TrendsYou 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, TransportationNo 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
Cosmetic Defects Found to Be Basis for Termination of Contractor for Default
Posted in Best Practices, Case Law, Claims and DisputesIn the construction world, many of us lawyers talk about what is known as a material breach in order to support a termination of the contract. In other words, the event that supports the claim for default or termination or breach of contract must be a material one or one that goes to the heart of the… Continue Reading
Provide Notice (and 10 Other Tasks) When Pursuing a Construction Claim
Posted in Best Practices, Case Law, Claims and Disputes, Project Management, SchedulingWhen 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, TechnologyIn 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
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
Change Directive v. Change Order v. Construction Change
Posted in Best Practices, Claims and Disputes, TennesseeIn the legal world, words have meaning. Not to say that words have any less meaning in the non-legal world, but sometimes you can get tricked up in your correspondence, notice letters, claims or otherwise when you use the wrong work. Take, for example, the world of changes in the construction context. When you are… 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
Best Practices for Developing a Contractor’s Request for Compensation
Posted in Best Practices, Claims and DisputesMy mentor and good friend, Cordell Parvin, has over the years shared with me some great best practices for contractors—whether talking about bid protests, accidents on the jobsite, or filing a claim. Recently, Cordell sent me a list of items that all contractors should review when developing a request for additional compensation. I have edited… Continue Reading
Bargaining Room v. False Claims: 5 Tips for Negotiation of Construction Claims
Posted in Best Practices, Claims and Disputes, Federal ConstructionEarlier this week, a settlement was reached in dispute where the contractor and designer were alleged to have filed false claims with the U.S. Government on two road projects in South Carolina. The issue raises an important question: What should a contractor do during negotiations to allow for some “bargaining room” so as to avoid… Continue Reading
8 Best Practice Tips for a Schedule Analysis of Construction Delays
Posted in Best Practices, Claims and DisputesA number of families will be traveling this holiday weekend, and some are travel-savvy enough to check out travel websites like www.911.Virginia.org for real-time traffic information and identification of construction delays. When savvy contractors face delays on a project, they immediately take steps to provide notice, document, evaluate and plan for recovery from those delays.It… Continue Reading
Any Problems with One Owner and Multiple Contractors? Sometimes.
Posted in Best Practices, Claims and DisputesIncreasingly, two or more contractors may each have a separate contract with the owner for different portions of the work on a single project. Interference may arise, for example, from one contractor’s storage of materials on a site where the other has work to perform, or from one contractor’s failure to progress with work that… Continue Reading
Can a Subcontractor Recover When Delays Are Caused by Another Subcontractor?
Posted in Best Practices, Claims and DisputesRecovery for unreasonable delays caused by others can be based upon a breach of an implied obligation not to hinder or delay the other party’s performance. Wow, that’s a mouthful! Let’s look at an example. In Foster & Creighton Company v. Wilson Contracting, the Tennessee Court of Appeals reviewed a case involving a project at… Continue Reading
Recovering Loss of Productivity Through Measured Mile Analysis
Posted in Best Practices, Claims and Disputes, TransportationYou don’t need to go any further than this Washington Post article to read about a delayed construction project where the parties are passing blame back and forth. The Silver Spring Transit Center is reported to be two years behind schedule and suffering from significant cost increases. No doubt the dispute will be resolved in… Continue Reading
What Type of Schedule Analysis Should be Performed in Construction Delay Claims?
Posted in Best Practices, Claims and Disputes, Project Management, SchedulingIt almost goes without saying that if you have to pursue or defend a delay claim, you are going to need some evidence (whether by expert or otherwise) to establish or to challenge entitlement to the damages sought. Today’s post identifies some best practices in this area.… Continue Reading