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The Construction Advantage – Issue 12

Welcome to the twelfth edition of The Construction Advantage! In this issue, we bring you issues of competitive bidding, more mechanics lien case law, and a Maine case of a dismissed appeal. We hope that you enjoy our...more

The Construction Advantage – Issue 11

Welcome to the first Thanksgiving edition of The Construction Advantage! In this issue, we bring you yet another tale of a mechanics lien case and a priority between an engineer and a lender in a failed golf course project....more

New False Claims Act Whistleblower Trends Revealed in Recent Verdict: What Can We Learn?

On October 20, 2014 in a case brought by a whistleblower under the False Claims Act (“FCA”), a federal jury handed down a $175 million verdict in favor of the plaintiff. While the outcome was newsworthy because of its size...more

Connecticut Supreme Court Construes “Active Interference” Exception to “No-Damage-for-Delay” Clause

C&H Electric, Inc. v. Town of Bethel, 312 Conn. 843, 2014 Conn. LEXIS 263 (Aug. 5, 2014) - This dispute arose out of a project to renovate and build an addition at a high school in the Town of Bethel, Connecticut. The...more

Texas Supreme Court Recognizes Exceptions to Enforcement of No-Damages-for-Delay Clauses

On August 29, 2014, in Zachry Construction Corp. v. Port of Houston Authority of Harris County, No. 12-0772, 2014 WL 4472616 (Tex. 2014), the Texas Supreme Court found that no-damages-for-delay clauses that purport to waive...more

Construction Alert: "Texas Supreme Court Sinks Port Authority's Ship - Port Authority's No Damages for Delay Clause Held...

The Texas Supreme Court recently issued an important decision regarding “no damages for delay” clauses in construction contracts. In Zachry Construction v. Port of Houston Authority, the Court found that the owner, the Port...more

Zachry v. Port of Houston Authority: Texas Supreme Court rules for contractor despite no-damages-for-delay clause

The Texas Supreme Court has issued a decision that could have a huge impact on the construction industry in Texas involving several high-profile issues the industry has passionately debated for years. In Zachry...more

Arizona Contractors Confront Cardinal Change

The Cardinal Change Doctrine - The “cardinal change doctrine” is a legal theory pursuant to which a contractor who is presented excessive, cumulative or otherwise material contract change orders has the right to...more

First Circuit Rejects Talley and Allows a Business Expense Deduction for Settlement Payments Made Under the False Claims Act

On August 13, 2014, the United States Circuit Court for the First Circuit rejected the United States’ request to deny Fresenius Medical Care Holdings Inc. from deducting a portion of a settlement payment to settle civil...more

Talk is Cheap – Promises to Pay Are a Poor Substitute for Adherence to Contractual Notice Provisions

A recent Wyoming case – JEM Contracting, Inc. v. Morrison – Maierle, Inc. – serves as a reminder to contractors and subcontractors of the importance of following the contractual requirements for notice when differing site...more

Developer's Subdivision Project for County Deemed Private Work of Improvement for Purposes of Subcontractor's Claim, Extending...

The California Court of Appeal recently held that where a developer hires a subcontractor to perform work in connection with a subdivision agreement with a public entity, the project may be considered a private work of...more

“Entirely Comfortable” With a “Monster”: A Striking Decision From an Unlikely Source About Excessive Fines Under the FCA

As we have discussed before, whistleblower and retaliation decisions—including from the Supreme Court of the United States—have created an increasingly whistleblower-friendly body of law that unifies courts across the...more

ConstructLaw - January 2014

U.S. Supreme Court Holds Forum-Selection Clauses Are Presumptively Enforceable - Atl. Marine Constr. Co. v. United States Dist. Court 2013 U.S. LEXIS 8775 (U.S. 2013) - This action arose out of a forum-selection...more

Court Orders Tuomey to Pay $237 Million for Violations of Stark and False Claims Act

On October 2, 2013, the United States District Court for the District of South Carolina issued an Amended Order and Opinion directing the entry of a civil judgment against Tuomey Health Care System (Tuomey) in the amount of...more

Legislative Update

Construction legislation in the 2013 session was much different from 2011. In 2011 many new construction related laws were passed including governance of indemnities and mechanic’s liens. In 2013 many significant...more

Virginia Supreme Court Awards Lost Profits for Breach of Non-Compete Provision in Government Subcontract

For the first time, the Supreme Court of Virginia has provided specific guidance on how to calculate damages for the breach of a non-compete/exclusivity provisions of a contract where the breach resulted in the loss of a...more

High Court Limits Recovery for Wrongful Termination of Negotiations | La Cour de cassation limite l’indemnisation de la rupture...

Court holds that parties cannot be compensated for loss of opportunity to perform a contract where there is no firm and binding agreement. On 18 September, the French Supreme Court for Judicial Matters (Cour de...more

Alabama Supreme Court Reverses Overly-Broad Injunction Prohibiting Competition Among Defense Contractors

Earlier this year, the Alabama Supreme Court reversed a preliminary injunction entered by the trial court in a case involving competing defense contractors at the Redstone Arsenal in Huntsville. See Monte Sano Research Corp....more

Changes to North Carolina Lien and Bond Law – What You Need to Know

A number of significant changes to North Carolina’s lien and bond statutes were just signed into law. In part, these changes are in reaction to concerns from the title insurance industry about so-called “hidden” liens, the...more

UK Public Procurement Law Digest: Successfully Setting Aside UK Procurement Contract Awards

Ever since UK law was changed to permit courts to set aside improperly awarded public contracts, there has been a series of unsuccessful attempts to invoke the new remedy. Successful set-aside applications have been rare...more

2012 California Construction Law Update

With the new year comes a host of changes to laws impacting the construction industry in California. Addressed below are some of the most important new laws to be aware of. Unless otherwise noted, all of these laws take...more

Town may not choose high bidder based on criteria not in bid specs where no fiinding that low bidder not responsible

Low bidder, if responsible, cannot be rejected by town in favor of high bidder based on criteria not in bid specs

Defendant town conducted a bidding process for services. The bid documents had specific criteria by which bidders were to be measured. When the bids were opened, the plaintiff was the low bidder. However, after site visits to...more

Let Bygones Be Bygones - Except When It Comes To "Out of Scope" Modifications

After an unsuccessful bid protest, many contractors assume that their chance at getting a piece of the action has passed. They assume that they have exhausted their remedies and that all of the spoils inevitably will go to...more

Salvaging Your Government Proposal

A Short Primer on Federal Bid Protests. This short (5 page) introduction to bid protests is for the business that is considering bidding on government contracts and lawyers wanting to understand more about the...more

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