Jun 28, 2019

Letter Agreements: Risks, Purpose, and What to Include

letter agreement

In the fast-paced construction market, contractors on smaller projects, and even some contractors on bigger projects, might be asked to begin work before entering into a formal written contract.  While oral agreements can be binding and enforceable[1], they are not recommended because they leave the substantial possibility that the parties will later disagree over their respective interpretations of the agreement or whether an agreement was reached at all.  At the risk of stating the obvious – it always makes sense for construction professionals to put their agreements in writing before any work begins. When a formal contract is not possible,… Read more


May 13, 2019

House Bill 311 – Seeking Limitations on Sovereign Immunity

House Bill 311, sponsored by Rep. Andy Welch (R-McDonough) and passed by both the House and the Senate, was recently vetoed by Georgia Governor Brian Kemp.  Generally speaking, the purpose of the Bill was to reduce the government’s ability to claim sovereign immunity and allow Georgia citizens the ability to seek judicial relief against public entities and officials that they believe have committed unconstitutional and unlawful acts. House Bill 311 was the General Assembly’s response to a 2017 abortion rights case in which the Georgia Supreme Court held that Georgia citizens could not seek injunctions or declaratory judgments against a… Read more


May 2, 2019

Failure to Provide Proper Itemization Under Section 38 of the New York Lien Law Fatal to Maintaining a Mechanic’s Lien

New York Lien Law

The New York Lien Law provides broad rights to contractors, subcontractors and materialmen who improve real property.  However, the right to file a mechanic’s lien is not without obligation on the lienor who must, within five days of receipt of a demand under Section 38 of the Lien Law, provide a verified, itemized statement detailing the value of the labor and materials that comprise its claimed lien amount.  A property owner faced with a lienor who refuses or fails to adequately itemize its mechanic’s lien may bring a petition before the court to seek a proper itemization.  If the lienor… Read more


Jul 31, 2018

Hands-Free Georgia Act and Restriction on Police Power to Obtain Cellphone Data

Hands-Free Cell Phone Usage while Driving

On July 1, 2018, Georgia’s new distracted driving law went into effect.  The new law is officially called the “Hands-Free Georgia Act” and it includes important new provisions relating to the use of “wireless telecommunications devices”[i] while driving a motor vehicle in Georgia.  The Act seeks to curb the use of cell phones while driving by requiring the use of blue tooth or hands-free calling.  As summarized in our article from last month, the long and short of it is that you are not allowed to hold your phone while driving. Many people may be curious to know how the… Read more


Jun 25, 2018

Georgia’s New Distracted Driving Law

Hands-Free Cell Phone Holder to Prevent Distracted Driving

On July 1, 2018, Georgia’s new distracted driving law will go into effect. The new law is officially called the “Hands-Free Georgia Act” and it includes important new provisions relating to the use of “wireless telecommunications devices”[i] while driving a motor vehicle in Georgia. It was already illegal to text and drive in Georgia, but now it is more difficult to use your cell phone at all, unless you have blue tooth or hands-free calling. The Act, which will be found at O.C.G.A. § 40-6-241, states in pertinent part that: While operating a motor vehicle on any highway of this… Read more


Mar 22, 2018

Construction Contract Clauses: An Intro to Pay-if-Paid vs. Pay-when-Paid

Construction Contract

If you are a contractor, subcontractor, or supplier in the construction industry, you’ve likely heard the terms “pay-if-paid” and “pay-when-paid.”  Payment provisions are some of the most controversial and heavily negotiated provisions in construction contracts. This article defines the pay-if-paid and pay-when-paid provisions, explains their differences, and provides guidance on how to recognize them in practice. Pay-if-paid and pay-when-paid clauses can alter the normal (i.e., common law) payment obligations running from the contractor to its subcontractor (or subcontractor to its supplier).  Without a contract clause or state statute[i] addressing payment obligations, payment for construction work is due on substantial completion… Read more


Nov 6, 2017

A Primer on Keeping and Maintaining a Good Daily Diary

Construction Projects: Keeping a Daily Diary

Every owner, contractor, subcontractor, engineer, superintendent, and foreman on a construction project should keep and maintain a daily diary that records their personal observations and conversations relating to the project.  The key to preparing a good daily diary is to recognize and contemporaneously record those items that may be significant in the future.  Rarely will this be accomplished by filling out a form at the end of the day because events get fuzzy and forgotten the longer one waits to make a record, especially at the end of the day.  The better approach is to identify those types of items… Read more


Sep 27, 2017

President Trump’s Buy American and Hire American Order

Made in USA - Buy American

On April 18, 2017, President Donald Trump issued an Executive Order (the “Order”) entitled “Buy American and Hire American,”[1] intended to, among other things, strengthen public procurement policies promoting domestic preferences for construction materials used on public projects. Technically, the Order does not make or change any existing law.  Rather, it establishes “the policy of the executive branch to maximize, consistent with the law . . . the use of goods, products and materials produced in the United States.” By issuing the Order, President Trump has sent a clear message that his administration will seek broader enforcement of federal procurement… Read more


Jul 21, 2017

The Importance of Retaining Evidence of Receipt

envelopes mail

A contractor’s ability to recover on a claim may turn on whether the contractor provided timely notice of the claim to the project owner.  Claim notice requirements in contracts are “…legal and binding on the parties in the absence of special circumstances, such as waiver or estoppel.”[i] Claim notice provisions in construction contracts vary in their specific requirements and should be reviewed on each project, but they typically require that the party making a claim provide written notice delivered in person or sent by registered, certified, or statutory overnight mail (e.g. Fed Ex) to the other party.[ii]   But what happens… Read more


Jun 27, 2017

Responding to False, Inaccurate, and Misleading Statements in Business Letters

Man in suit reading business letter

Authored by Darren Rowles and Scott Cahalan Most contractors have received letters, e-mails, invoices, and other forms of correspondence in the ordinary course of business from owners, architects, and others that contain false, inaccurate, or misleading statements.  Does the contractor need to respond to the letter? A contractor should always respond to false, inaccurate, and misleading statements in letters and other correspondence within a reasonable period of time, even if the contractor is rushed for time, or wants to avoid a confrontation, or believes that the statements are so ridiculous that they don’t warrant a response. Ignoring such statements is… Read more