Constructive

The Construction Law Blog

Constructive

Constructive will make you smarter about contract interpretation and compliance. It'll give you powerful tools to resolve disputes before they explode into costly litigation. You'll learn how to protect assets, recover money owed, fight against economic injustices and realize your own unique vision of success.

DOD PRE-RELEASES 2018 SBIR & STTR BAA TOPICS

On November 29, 2017, the U.S. Department of Defense (DoD) issued its STTR 18.A Program Broad Agency Announcement and its SBIR 18.1 Program Broad Agency Announcement, beginning the 30-day pre-release window during which small businesses can communicate directly and privately with the Technical Points of Contact who authored the BAA topics. Discussions with topic authors

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Creative, Effective, Efficient Legal Fee Arrangements

Today more than ever, clients require creative, flexible, and predictable approaches to the delivery and pricing of legal services. If implemented successfully, alternative fee arrangements provide substantial value and are mutually beneficial for the firm and the client. Below are some examples of the alternative fee plans legal clients have find attractive. Alternative Hourly Rates

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Financial Forecasting – Cornerstone of a Successful Project

Everything seems to be going well in your contracting or consulting business… but there could be serious financial trouble lurking under the surface. There is a strong correlation between “business confidence” and increasing profits, until the market shifts and uncovers business strategies have become stagnant and no longer apply to the changing industry. It is

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Prevent Your Prevailing Wage Disaster

A contractor or subcontractor found to have violated prevailing wage laws can face contract termination, debarment from future projects, and the withholding of contract payments to satisfy any unpaid wage, in addition to fines, penalties, liquidated damages, and an award of attorneys’ fees. Read on, and gain the knowledge that will protect you from a

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Prevailing Wage Law Basics

Prevailing wage laws require construction workers employed by private contractors or subcontractors on public projects be paid wages and benefits at least equal to the “prevailing” wage for similar work in the locality in which the project is located. Prevailing wage laws exist at the federal, state, and local levels. The federal prevailing wage law,

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DBE Fraud Case Ripped from the Headlines

Smart DBE contractors are skeptical when a non-DBE makes them an offer that sounds too good to be true. “Let’s do a joint venture,” the prime might say, “we’ll take care of the bidding and mobilization and supply the manpower. You can use our working capital and take advantage of our bonding capacity. We’ll take

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Critical GAO Bid Protest Deadlines and Timeline

Many clients call our office seeking to protest the award of a federal government contract. Unfortunately, sometimes these calls are too late. While contracts can be protested at the agency level, the Court of Federal Claims, and the Government Accountability Office (“GAO”), GAO protests are the most common. The deadlines by which a protester must

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Better Quit Your Day Job or Else the Government will Revoke Your MWBE or DBE Certification

Think you can moonlight as the nominal minority or woman owner of a certified DBE or MWBE and still hold down a full time job? Think again. New York State and Federal Regulations limit outside employment, and for good reason. If you’re working a day job while someone else is running the DBE or MWBE,

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Time is Running-out to Self-Certify for Small Business Set-Aside Contract

Under previous legislation, Service-Disabled Veteran-Owned and Woman Owned small businesses used to be able to apply for small business set-aside contracts under a self-certification process to prove they qualify. The National Defense Authorization Act (NDAA) eliminated self-certification fiscal year 2016, but the SBA has not yet implemented it, and thus still accepts self-certification for the

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New York Statutes of Limitations—how long do I have to sue?

Breach of contract. The statute of limitations is six years (N.Y. Civil Practice Law and Rules (CPLR) 213). Breach of warranty under the New York Uniform Commercial Code. The statute of limitations is four years (NY UCC § 2-725). But courts will apply the six-year statute of limitations to construction contracts unless the contract’s primary purpose is considered to be the

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Frustrated Construction Contract Performance—when can I take my ball and go home?

Conditions on the job have gone from bad to worse. Maybe the project manager or architect is incompetent or just extremely difficult to work with, maybe the prime has gone out of its way to increase the cost of your performance, maybe there are long delays, maybe other trades are interfering with your work—that’s when

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A Powerful Right to Payment for Contractor/Suppliers on Federal Construction Projects

  On any federal project over $25,000 the general contractor must furnish a payment bond. A federal project is one where federal funds are used for the improvements or if the federal government has a financial interest in the project. The Miller Act payment bond provides for payment of all persons supplying labor or material

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Easy Fix for Fatal Flaw in Many Family-Owned Closely Held Corporations

Sarah owned a successful government contracting business with her brother Paul—they inherited it from their father. She kept the books and managed the office while Paul worked in the field. Both loved working together, especially when they stayed up late into the night preparing bids. They had good and loyal employees, including Sarah’s oldest son

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What Will Happen to My Contracting Company When I Die?

Many startup contractors use an online service to start, or in legal terms, “form” their company. Let’s say they choose to form a corporation rather than a limited liability company without much thought. They think long and hard about a catchy or meaningful name and consult contractor-friends for advice. They choose a state to be

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The End of Federal Prevailing Wage Laws

In January 2017, Representative Steve King introduced the Davis-Bacon Repeal Act. The act seeks to repeal the Davis-Bacon Act, a federal law that requires the locally ‘prevailing wage’ be paid to various classes of laborers and mechanics working under federally-financed or federally-assisted contracts for construction, alteration, and repair of public buildings or public works. The

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What “Time is of the Essence” Really Means

Time matter in construction contract performance. Has there ever been a construction project that wasn’t on a tight schedule? Speedy performance expectations are always high. Time frames are (or should be) very specific.  And when the work has been delayed and isn’t done on time, owners, general contractors, engineers, anyone really who has responsibility for

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A New Revenue Stream is Available Under the Foreign Military Financing Program

The foreign military financing program is a program of non-repayable grants and of repayable and non-repayable loans and credits to enable U.S. Allies to improve their defense capabilities through the acquisition of Defense articles and services. The Arms Export Control Act (AECA), as amended [22 U.S.C. 2751, et. seq.], authorizes the President to finance procurement of

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Subcontractor Rights: Swords and Shield For Use in Court or Negotiations

We hear it all the time: subcontracts are one-sided, so favorable to the prime contractor, do I have any rights? The answer is yes, you do, important rights that you should know. For example, if the contract between the owner and prime require the prime to follow the plans and specifications, that’s great news for

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The Invoicing Rules that Nobody Knows

Of course billing cycles in a construction contract are always disregarded. “Submit application on X day of month, get paid X days thereafter.” Does it ever happen like that?  And what if your contract doesn’t specify a billing cycle?  What if there is no invoicing procedure?  As a practical matter, most contractors apply for payment

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How to Hold Government Accountable for Errors in Bid Documents

Government may be unwilling to assume the risk that bid documents are accurate.  The government may try and limit its exposure and potential liability for mistakes by providing a disclaimer regarding the bid documents. However, the government cannot carelessly prepare and disseminate bid documents and then avoid liability for erroneous information simply by captioning the

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