WHEN APPROXIMATE MEANS ASSUMED RISK A New York Court Shows How Performance Specifications Can Leave Contractors Holding the Bag Sometimes when we are told what to do, the directions include when, where, by whom and how to do it. Other times, we are simply asked to get the job done and the how is up […]
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FROM ROMAN ARCHES TO AI Can Construction Evolve Without Risk? The construction industry blends old with new. From ancient Roman archways and aqueducts and 2,000-year-old theories of fluid mechanics by Archimedes through the invention of modern Portland cement just over 200 years ago to the survey or other technologies of today, the construction industry has […]
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CAUGHT IN THE MIDDLE New Mexico bridge case highlights the importance of written agreements for changes and delay compensation In construction contracting, hope for (and focus on) the best after planning for the worst. In 2018, the New Mexico Department of Transportation (NMDOT) selected a prime contractor for construction of a bridge in Quay County, […]
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WAIT AND IT’S WAIVED Roads & Bridges | Supreme Court Ruling on Arbitration Delay Don’t wait to arbitrate! Progressing too far down the litigation pathway can waive your right to arbitration. However, not filing a lawsuit may not toll or pause the statute of limitations in Federal Miller Act or State Little Miller Act scenarios. […]
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For over 125 years, the vast majority of jurisdictions have refused to bind contractors to erroneous bids. In 1900, the U.S. Supreme Court reasoned that a bidder should not be bound to a clerical mistake because, if that happens, there could be no meeting of the minds to create a contract. Moffett, Hodgkins & Clarke […]
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The White House has directed Agency heads to “terminate or modify . . . covered contracts.” With some exceptions, there are numerous potential contracts on the chopping block. What should contractors do? Upon receipt of a unilateral modification, assess whether the cost or time will increase in unchanged areas. For example, deductive changes for certain […]
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MAXIMIZING DAMAGE RECOVERY Tracking Costs, Avoiding Duplication in Liquidated and Actual Damage Claims A County and Contractor contracted for construction of a road and drainage improvement project. The planned project duration was 180 days. The Contractor delayed and defaulted. The Contractor’s surety entered into a takeover agreement with the County to complete the project. Continue […]
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ROADWORK, DELAYS, AND DISPUTES The Subcontract Case In Pecos County, Texas “Road construction is ubiquitous in our society. . . .” C&C Road Construction, Inc. v. Saab Site Contractors, LP, 574 S.W.3d 576 (March 29, 2019). The Court of Appeals of El Paso, Texas could not be more right on this point. And where there […]
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UNDERSTANDING SOVEREIGN IMMUNITY| Public Contracts and Lessons from Recent Texas Cases Generally, governmental entities are immune from lawsuits. One exception is contractual. If a governmental entity is party to a contract and likely procedural requirements are strictly followed (e.g., notice and/or presentation of claims, among others), then the government is deemed to have has waived […]
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INDIANA COURT UPHOLDS BROAD ND4D CLAUSE | Indiana Court Upholds Broad ND4D Clause This is the story of an Indiana court that broadly applied a delay damages waiver to claims for delays, accelerations and changes. Continue reading.
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SOME CONDITIONS APPLY | The scope of insurance policy coverage and what the terms dictate At some time or another, many have tried to read, and some have actually understood insurance policies. Many of those same people have concluded (rightfully) that word games, puzzles and the like are far easier (and more entertaining). Elementally, insurance […]
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CONTRACT TERMINATION | An unpredictable case teaches hard lessons to each party involved Court decisions are “opinions.” There are majority and dissenting (disagreeing) opinions. Consistency in opinions across different courts, judges and cases promotes certainty and efficiency. Although courts may strive for consistency as they apply the facts of each case to the applicable laws, […]
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GOOD FAITH AND FAIR DEALING | How Do You Prove a Party Has Failed to Act Based Upon an Ulterior Motive? The duty of good faith and fair dealing comes with every contract. A breach of which is challenging to prove because it is relatively simple to fulfill. In 2017, a contractor agreed to mill […]
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