Subcontractors

News & Analysis as of

DoD Inspector General Publishes List of Postaward Fraud Indicators

On July 29, 2015, the Office of the Inspector General for the Department of Defense published on its website new “Contract Audit Fraud Scenario and Indicators for Material Pricing Deficiencies in a Postaward Audit.” While...more

Claims Webinar Series: Requests for Equitable Adjustments and Claims

OVERVIEW - - Overview of requests for equitable adjustment (“REAs”) and Claims - Considerations and tips for REAs and Claims - Subcontractor Claims - Brief overview of the Claims appeal process...more

Fifth Circuit Finds Erosion in Texas—Because Endorsements Are Transformative

In Amerisure Mut. Ins. Co. v. Arch Specialty Ins Co., No. 14-20239 (5th Cir. April 21, 2015), a case that applied Texas law, the U.S. Court of Appeals for the Fifth Circuit recently held that the word “expenses,” as used in a...more

Is the Mechanic’s Lien or Bond Waiver Clause in Your Contract Enforceable in Virginia?

A new Virginia law invalidates any mechanic’s lien or payment bond waiver signed before work has commenced. The Governor recently signed new legislation into law, effective July 1, 2015, that invalidates waivers of...more

Access to Pre-Solicitation Information without Mitigation Plan: A Recipe for Rescission

The Court of Federal Claims (“CFC”) recently made clear that mere access to pre-solicitation information creates a potential Organizational Conflict of Interest (“OCI”) that can invalidate an award. In Monterey Consultants,...more

“If You See Something, Say Something” Applies to Construction Contract Bidding

In Otis Elevator Co. v. W.G.Yates & Sons Construction Co., 589 Fed. Appx. 953; 2014 U.S. App. LEXIS 20214 (11th Cir. 2014), a subcontractor installed a series of escalators for an airport expansion project and sued the...more

Contractor’s Repeated Material Breach Excuses Subcontractor From Further Performance

The Appellate Division of the Supreme Court of New York in U.W. Marx, Inc. v. Koko Contracting, Inc. affirmed judgment in favor of a subcontractor, holding that the general contractor’s failure to make three successive...more

Make the Most of Your Mediation: The Single-Family Construction Defect Case

How can you economically and effectively settle the single-family construction defect case? In a recent mediation involving a homeowner, contractor and 15 subs, the participants used the following practices, which resulted in...more

Federal Circuit Court Affirms that Federal Claims Court Lacks Jurisdiction Over Claims By Subcontractor

Montano Elec. Contractor v. United States, 2015 U.S. App. LEXIS 5928 (Fed. Cir. Apr. 13, 2015) - The Army Corps of Engineers (“the Corps”) hired a general contractor, who subcontracted certain electrical work to Montano...more

San Francisco’s First “Retail Workers’ Bill of Rights” Creates More Obligations for Retail Employers

As of July 3, 2015, retail employers in San Francisco are required to comply with new regulations regarding the work hours, scheduling, pay and retention of their employees based on the passage of San Francisco’s first-ever...more

Fourth Circuit: If You Want to Limit Additional Insured Coverage to Vicarious Liability, You Should Say So

In Capital City Real Estate, LLC v. Certain Underwriters at Lloyd’s, London, No. 14-1239 (4th Cir. June 10, 2015), the Fourth Circuit Court ruled that a Maryland federal court erred in granting summary judgment to Certain...more

Executive Orders and Labor Laws: New "Proposed" Guidance - Clarity or Concern?

In this presentation: - Summary of proposed FAR - Summary of proposed guidance -? Remaining questions and potential problems - Excerpt from Summary of proposed FAR: The Proposed Rule Requires:...more

New Federal Integrity Regime: Two Steps Forward, One Step Back

The Integrity Regime replaces the Integrity Framework initially introduced by PWGSC in 2012 and amended in March 2014, which was heavily criticized as being unfairly harsh for its lack of due process and failure to account...more

Top Ten Construction Clauses: Pay-if-Paid and Pay-when-Paid Clauses

Pay-if-paid clauses provide that a general contractor is not required to pay subcontractors unless and until it receives payment from the owner. The ConsensusDocs Standard Agreement 655 provides the following example: Receipt...more

Texas Supreme Court Holds Builder’s Limited Defensive Participation in Litigation Did Not Waive Right to Compel Developer to...

G.T. Leach Builders, LLC v. Sapphire V.P., 2015 Tex. LEXIS 273 (Tex. Mar. 20, 2015) This action arose after 2008’s Hurricane Dolly caused extensive damage to a luxury condominium project that Sapphire V.P., L.P. (“Developer”)...more

New Integrity Framework - Changes to Canada's Integrity Rules for Procurement

On July 3, 2015, the Government of Canada introduced a new “Integrity Regime” for procurement and real property transactions to overhaul the former Integrity Framework.i The Integrity Regime consists of the Public Works and...more

New Jersey Developer Wins on “Occurrence” and “Property Damage”; Appellate Division finds Subcontractors’ Faulty Construction...

The Superior Court of New Jersey, Appellate Division, has issued a very important decision for real estate developers and general contractors whose insurance companies have reserved rights or denied coverage for damage caused...more

Antitrust Whistleblower Protection Bill Introduced In Senate (Again)

On June 17, 2015, members of the Senate Judiciary Committee introduced the Criminal Antitrust Anti-Retaliation Act of 2015 (Act), a bill that proposes whistleblower protection for employees who provide information to the...more

Construction Case Law Update - July 2015

Involuntary Dismissal of Counterclaims – In a suit between a developer and general contractor, the trial court erred in dismissing the general contractor’s counterclaims, without a motion by the developer, before the...more

Canada’s Integrity Framework Gets a Makeover: What Public Contractors Need to Know

On July 3, 2015 Public Works and Government Services Canada (PWGSC) released its anticipated revisions to the Integrity Regime, which seeks to ensure it does business with ethical suppliers of goods and services in Canada and...more

Equities Favor Subrogating Insurer Over Subcontractor That Performed Defective Work

In Valley Crest Landscape v. Mission Pools (No. G049060, filed 6/26/15, ord. pub. 7/2/15), a California appeals court held that equities favor an insurer seeking equitable subrogation over a subcontractor that agreed to...more

Additional Insureds Beware: A Certificate of Insurance Does Not Guaranty Coverage

This is the first in a 2-part series on the use of certificates of insurance as evidence of liability coverage for contractors on construction projects. The second part of the series will discuss the potential impact of...more

Ohio Court of Appeals Holds that Economic Loss Rule Bars Claim by Affiliates of Owner Against Subcontractor

Fed. Ins. Co. v. Fredericks, Inc., 2015-Ohio-694, 29 N.E.3d 313, 2015 Ohio App. LEXIS 684 (Ohio Ct. App. Feb. 27, 2015) This case arises from a construction project in Vandalia, Ohio that was damaged during a windstorm...more

Conclusory Allegations Held Insufficient to Support Declaratory Relief on Right to Independent Counsel or Allocation of Defense...

Centex Homes v. St. Paul Fire & Marine Ins. Co., et al. - Court of Appeal, Fourth Appellate District (May 22, 2015) - In Centex Homes v. St. Paul Fire & Marine Ins. Co. (No. E060057, filed 5/22/15), a California...more

Construction Licensing – Substantial Compliance – Settlements and Suspension of License

Pacific Caisson & Shoring, Inc. v. Bernards Bros. Inc. - Court of Appeal, Second Appellate District (May 18, 2015) - Business and Professions Code Section 7031 precludes a contractor from maintaining any action...more

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