Public contracts
Payment Bond Does Not Cover Claim for Lost Work Opportunity
March 8th, 2018
A subcontractor claiming that the general contractor failed to use and pay for a minimum number of workers made a claim against the GC’s payment bond, for the value of the workers not hired. A federal court has held that the Miller Act bond does no…
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The Pay-if-Paid War Continues!
January 9th, 2018
The subcontractor community has waged war against pay-if-paid clauses for many years. But the war is not over, per two recent decisions, one from the Kentucky Supreme Court and one from a Connecticut trial court. The Kentucky Supreme Court held that…
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Change Orders – Be Clear on Intent
October 2nd, 2017
Just as clarity in contracting is a virtue, clarity with change orders is a must. Witness the dispute in an Ohio case, when the original and incorrect prevailing wage reference was revised via change order. The project was for renovation of housing u…
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Computer Technician Was Doing “Construction Work” and Entitled to Prevailing Wages
August 3rd, 2017
A computer technician working onsite and testing HVAC components to ensure proper operation, to verify completion of a project, was performing “construction work” and thus entitled to be paid prevailing wages. So decided the Massachusetts Appeals…
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No-Damage-for-Delay Clause Did Not Bar Acceleration and Inefficiency Claim
March 29th, 2017
Where a sub was told that no additional time would be granted under any circumstances, the additional costs it incurred for acceleration and inefficiency could be recovered, even with a contract no-damages-for-delay clause. Also, the sub’s use of a…
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Possible Tracing of Public Funds Did Not Make Project Subject to Prevailing Wage Rates
February 25th, 2017
A construction project was undertaken by the New York Racing Authority (NYRA), a not-for-profit entity established in 2008. Near its inception, NYRA had received $5 million from its predecessor, without any designation or restriction on use of the fu…
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Specifications Trump Industry Practices
January 24th, 2017
When the specifications call for temporary structures to be paid in a certain manner, it does not matter what the industry practice may be. That is the lesson learned by a structural steel supplier on a large bridge project. During the run-up to bidd…
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NH Municipalities Cannot Invoke Same Statute of Limitations Protections as the State
December 20th, 2016
Some states recognize the doctrine expressed in English as “no time runs against the king” and in Latin as “nullum tempus occurrit regi.” The doctrine arises from time to time when a state agency seeks to recover against a private company on…
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Unsuccessful P3 Proposals Are Not Subject to Public Records Laws
November 4th, 2016
In the ordinary course of public project procurement, bids of the competing companies become subject to public review after the bid opening. The Pennsylvania Commonwealth Court (an intermediate appellate court; see more below) recently held that the…
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Statutory Amendment Extending Payment Bond Lawsuit Deadline Does Not Apply Retroactively
September 24th, 2016
New York amended its payment bond law in 2011 to extend the timetable for filing a claim against a public project payment bond. The former deadline was one year after submitting an invoice for final payment. The amended law requires bond claim lawsui…
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