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What lawyers call a “battle of the forms” occurs when two parties, negotiating a contract, exchange conflicting standard terms during the contract negotiation and formation. This leads to the obvious and not uncommon dilemma:...more
In Sze Fung Engineering Limited v Trevi Construction Company Limited [2025] HKCA 278, the Hong Kong Court of Appeal (“CA”) ruled that the “back to back” wording in that case was not a “pay when paid” clause, but governed only...more
Those familiar with the construction industry know that construction projects are seldom, if ever, completed within the time originally anticipated at the project’s outset. Fortunately, prime contractors and lower-tier...more
Under the guaranteed maximum price (GMP) construction contract delivery method, great care and attention must be given by the owner in setting the GMP, usually done by way of a “GMP Amendment,” following the CM’s submission...more
Drafting and negotiating subcontracts can be tricky for both general contractors and subcontractors. General contractors are caught in between owners and subcontractors as the ones that will be held responsible for the work...more
The tectonic plates have shifted once again, this time with trade tariff announcements from the incoming Trump administration, sowing the seeds for another potential supply chain disruption event. In times like these owners,...more
President Trump’s prospective assessment of 25% tariffs on certain materials coming from Canada and Mexico, and prospective 10% tariffs on certain material from China, may increase contractor costs in fulfillment of...more
If you ask owners, general contractors, or subcontractors how long the warranty lasts that they received or gave on a construction project, they will often tell you that they have a “one year warranty.” However, if the...more
With the exception of those living under rocks, construction professionals are well aware of the recent spate of litigation about the Massachusetts Prompt Pay Act. In 2022, the Massachusetts Appeals Court interpreted the Act...more
States have been slowly clawing back at a higher-tier’s ability to withhold payments owed to its lower-tier subcontractors, aiming to protect subcontractors from undue financial hardship and ensure that payment disputes are...more
The legal concept of “privity of contract” is a common law principle which provides that only parties directly involved in a contract can enforce its terms or be held liable for its obligations. This means that third parties...more
Arbitration agreements have become commonplace in construction contracts. As a result, a significant portion of construction disputes are resolved privately through arbitration rather than in public courts. This article...more
Like similar regimes in other States, the Building and Construction Industry Security of Payment Act 2002 (VIC) (“Victorian SOPA”) was intended to reduce insolvency in the construction industry and enhance cash flow for...more
A recent Colorado Court of Appeals sent ripples through the Colorado construction industry. In Ralph L. Wadsworth Constr. Co., LLC v. Reg’l Rail Partners et al. the Court of Appeals interpreted Colorado’s Public Works Act to...more
Contractors, subcontractors, laborers, and material suppliers who perform work or labor upon or furnish materials in furtherance of any improvement undertaken by virtue of a contract with an owner, part owner, or lessee have...more
Disputes are a fact of life in the construction industry. As a practicing construction attorney for twenty years, both with a law firm and as in-house at a national construction contractor, I have negotiated and helped...more
Although many contractors have never heard of the expression “lien fund” having an understanding as to what this phrase means is crucially important in the context of seeking payment pursuant to a construction lien. In...more
1. SUPREME COURT PUTS COLLATERAL WARRANTIES IN THEIR THEIR PLACE - Can a collateral warranty be a "construction contract" under the Construction Act, an agreement for the carrying out of construction operations?...more
From a practical business perspective, you can evade disaster, protect your payments from others’ financial shortages, and avoid the pitfalls of another’s bankruptcy—and still end up first—with a bit of knowledge, planning,...more
On 16 July 2024, the Hong Kong LegCo Bills Committee which is considering the Construction Industry Security of Payment Bill (“Bill”) held a meeting to receive representations and submissions on the Bill from deputations sent...more
A recent decision from the U.S. District Court for the Southern District of Florida demonstrates how facts supported by documents generated during the project can be vital to prime contractor/subcontractor disputes. In...more
In NASDI, LLC v. Skanska Koch Inc. Kiewit Infrastructure Co. (JV), 2024 WL 1270188 (2d Cir. Mar. 26, 2024), the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s grant of summary judgment dismissing a...more
RCW 39.04.360, effective June 6, 2024, sets forth protections and assurances of payment for contractors, subcontractors, and suppliers that perform undisputed changed or additional work on both public and private construction...more
A recent decision from the Court of Appeals of Virginia may have companies doublechecking the workshare terms in their subcontracts. The Court held that a subcontractor's 40 percent workshare only applied to the $70 million...more
Kilpatrick attorneys secured a significant decision for contractors and subcontractors performing work in Pennsylvania. The Third Circuit Court of Appeals affirmed District Court Judge William S. Stickman’s award of...more