Jun 9, 2015

Local Government Procurement Laws – Who the Heck is a “Responsible Bidder”?

All state and local government public works construction projects must follow the public bidding and procurement laws, which seek to protect the public against the squandering of public funds and prevent abuses such as fraud, waste, and favoritism. Local governments[i] are required to provide public notice and to competitively award public works construction contracts,[ii] unless an exception applies, such as where the estimated cost of the project will be less than $100,000.[iii] A contractor forfeits its right to payment if it performs work knowing that the local government did not follow the public procurement laws. Local governments who take competitive… Read more


Apr 14, 2015

Will a Duty to Inspect the Site Adversely Affect a Differing Site Conditions Claim?

Last month, we discussed why utility contractors should insist on the inclusion of a differing site (changed) conditions (“DSC”) clause in their contracts. A DSC clause allocates to the owner the risk that actual physical conditions at the site are materially different from the expected physical conditions at the site, along with establishing a procedure for adjusting the contract price and time for DSCs.  Absent a properly drafted DSC clause, the doctrine of sanctity of contract normally places the risk on the contractor if the work is more difficult, costly, or time-consuming than expected due to a DSC. DSCs fall… Read more


Mar 10, 2015

Differing Site Conditions: What Are They and Are You Protected?

You’ve contracted to install underground utilities. Once the work begins, you discover soils with inadequate bearing capacity, large amounts of unanticipated rock, groundwater at levels higher than anticipated, buried debris, or hazardous wastes. None of these conditions were expected. As a result, the cost you promised to the owner to install the utilities is no longer feasible. Who bears this risk? A “differing site condition” (also known as a “changed condition”), which is abbreviated in this article as a “DSC,” is an unknown and hidden, concealed, or latent physical condition encountered at a site that differs materially from the reasonably… Read more


Feb 18, 2015

The Spearin Doctrine Cont’d: Some Important Nuances and Exceptions

Last month, we discussed the Spearin doctrine, which establishes that a project owner impliedly warrants that plans and design specifications will be adequate if the owner issues and the contractor complies with the plans and specifications.[1]  As a result, a contractor can use the Spearin doctrine defensively to avoid the consequences of defective plans and specifications or offensively to bring a claim if the defective plans and specifications cause its work to be more expensive, timely, or difficult. The Spearin doctrine’s applicability and longevity have spawned a number of nuances and exceptions, some of which we discuss in this month’s… Read more


Feb 3, 2015

Colorado Bill Proposes Shortest Statute of Repose for Construction Claims in the Nation

Colorado State Senator Ray Scott recently introduced a bill (SB15-091) to reduce Colorado’s statute of repose for construction claims from 6 years down to 3 years. The bill is set to take effect on August 5, 2015, if the General Assembly adjourns on May 6, 2015, as scheduled, and no referendum petition is filed. If the bill passes, Colorado would have the shortest statute of repose for construction claims in the nation. By comparison, several states maintain statutes of repose of 10 years or longer. A “statute of repose” is one of two types of timing limitations that cuts off… Read more


Jan 23, 2015

Contractors Bear the Burden for Costs to Repair

Imagine that you’re a general contractor responsible for the construction of a large mixed-use development. Now imagine that you mistakenly installed a brand of piping for the plumbing systems that was different from the brand specified by the owner. The pipe you installed was of similar quality to the pipe specified, so you’re thinking no harm no foul. Unfortunately, the owner is particularly litigious and decides to file suit against you for breach of contract hoping to recover damages in the amount it would cost to remove and replace all of the piping with the brand specified by the owner…. Read more


Jan 14, 2015

Mercedes-Benz Stadium Fly-Through: Watch It

Mercedes-Benz Stadium

The New Mercedes-Benz Stadium, which will be home to the Atlanta Falcons and Atlanta United (set to begin play in 2017), is currently under construction. Several renderings of the unique design for the stadium have been available to the public for some time. However, a new fly-through video released this Tuesday shows the much-anticipated Mercedes-Benz Stadium in all its glory, including the unique retractable roof, a gigantic window providing a view of downtown Atlanta, and the 360-degree HD “halo” video board running the entire circumference of the stadium. The fly-through video gives fans a look at each part of the… Read more


Jan 7, 2015

The Spearin Doctrine: Determining Who Bears the Construction Risk of Design Errors

All owners, contractors, and subcontractors should carefully negotiate contract clauses that govern their relationships. In addition, all construction participants should be aware of the many implied obligations in construction contracts. An implied obligation is one that is not expressly stated in a contract but implied, by courts, arbitration panels, and dispute review boards. One such implied obligation is the implied warranty of the adequacy of the plans and specifications, also known as the Spearin Doctrine. Before the turn of the 19th century, the law generally placed all construction risk on contractors, except in the event that their contract expressly stated… Read more


Dec 16, 2014

AIA Additions and Deletions Report May Be More Important Than You Think

The parol evidence rule is a substantive common-law rule that prevents a party to an integrated (complete) written contract from presenting extrinsic evidence that contradicts or adds to the written terms of the contract unless one of a handful of narrow exceptions applies. The rule means that one cannot use evidence of prior negotiations to alter the terms of an integrated (complete) written contract. The American Institute of Architect’s (“AIA”) proprietary software requires changes in the form agreement to be shown as redlined or strikethrough text, or as an Additions and Deletions Report appended to the end of the document. For… Read more


Nov 18, 2014

Georgia Lien Law: How much time do I really have to file a Lien Action?

In 2009, Georgia amended its lien statute. One of the many amendments to the statute requires lien claimants to include on the face of the lien the following statement in at least 12-point bold font: “This claim of lien expires and is void 395 days from the date of the filing of the claim of lien if no Notice of Commencement of Lien Action is filed in that time period.” (emphasis added). O.C.G.A. § 44-14-367.  The failure to include this language in the claim of lien shall invalidate the lien and prevent it from being filed. Id. By now, most… Read more