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
Georgia’s New Distracted Driving Law
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
Construction Contract Clauses: An Intro to Pay-if-Paid vs. Pay-when-Paid
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
A Primer on Keeping and Maintaining a Good 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
Constructive Change: A Claim by Any Other Name
What should a contractor do when it and the owner’s representative dispute whether certain work requested by the owner is required by the drawings and specifications and the contract states that (1) the contractor waives its right to a change order by proceeding to perform a change without first obtaining a change order or directive signed by the owner’s representative, and (2) the contractor is obligated to continue performance of the work pending resolution of a disputed claim? If the contractor is right that the work is in addition to what is required by the drawing and specifications, the contractor… Read more
Is Your Company’s Drug Testing Policy Compliant with OSHA’s New Rules?
Authored by Darren Rowles and Scott Cahalan Occupational Safety & Health Administration (“OSHA”) requires that employers inform employees about how to report occupational injuries and illnesses. OSHA recently updated its rules to clarify that the reporting method required by employers must include (1) a “reasonable procedure” for employees to report work-related injuries and illnesses, and (2) not discriminate or retaliate against employees who report such injuries or illnesses. A procedure is unreasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. OSHA’s rationale for the new rules is to encourage employees to… Read more
Understanding Your Surety’s Indemnity Agreement
Authored by: Darren Rowles and Scott Cahalan Contractors on public and private projects are often required to obtain surety bonds to secure their bidding, payment, and performance obligations under a construction contract. A bond is a three-party contract entered into by the surety, the principal (contractor) and the obligee (owner) in which the surety guarantees to the obligee that the principal will perform certain obligations under the contract between the obligee and the principal. For example, a surety on a performance bond guarantees the owner that the contractor will complete the project; and a surety on a payment bond guarantees the owner… Read more
Material Breach and the Consequences of Being Wrong
Authored by: Scott Cahalan and Darren Rowles It’s not uncommon for parties to a construction contract to exchange heated letters accusing each other of material breach of their contract. Determining whether a breach occurred is easy compared to determining whether that breach was material. A breach is a failure to perform an express or implied obligation under a contract. Whether that breach is material turns on the facts and circumstance surrounding the formation of the contract and is often a matter of degree. For instance, a seller would breach a contract to sell a 1964 metallic mint green Buick Skylark… Read more
Local Government Procurement Laws – What does it take to be a “Responsive Bidder”?
Authored by: Darren Rowles and Scott Cahalan In a previous article we discussed the requirement that, if it awards a public works contract, a public entity in the State of Georgia must award the contract to the “lowest responsible and responsive bidder,” unless an exception to this requirement applies. This article addresses what it means to be a “responsive bidder.” While responsibleness focuses on the bidder or proposer, responsiveness focuses on the bid or proposal. Specifically, responsiveness requires that a bid or proposal respond and conform to the requirements of the invitation for bids or request for proposals (the “Bid… Read more
Are Sole Source Specifications Enforceable?
Authored by: Darren Rowles and Scott Cahalan A sole source specification restricts a bidder to providing materials, equipment, or labor, from one source. For example, a specification that requires the contractor to furnish a 1200 ton Trane CenTraVac® chiller would preclude furnishing any other make or model of chiller. Sole source requirements are enforceable on private projects where the parties are free to contract with whomever and for whatever they want, so long as their contract is lawful and does not violate public policy. But sole source requirements can conflict with the policy behind public procurement laws that require competitive… Read more