FAIRFIELD CONNECTICUT BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Challenging a Termination for Default

September 23, 2024 — David Adelstein - Florida Construction Legal Updates
No contractor wants to be terminated for default. It is the harshest contractual recourse. It is a recourse that has implications, particularly in the public sector. However, a party needs to be in a position to support the basis of the termination for default, and the terminated party, in most instances, should not be in a position to imply accept the basis of the default. This applies regardless of the project. In the federal context: “When a contractor challenges a default termination, the government bears the burden of establishing the validity of the termination.” Sergent’s Mechanical Systems, Inc. v. U.S., 2024 WL 4048175, *7 (Fed.Cl. 2024) (internal quotation and citation omitted). Once the government establishes the default, “the contractor bears the burden of establishing that the default was excused by fault of the government.” Id. at *8 (internal quotation and citation omitted). Relevant considerations as to whether the contractor is in default include the contractor’s failure to meet contract specifications or the required schedule. Sergent’s Mechanical Systems, supra, at *8. “[T]here is ‘a requirement that the contractor give reasonable assurances of performance in response to a validly issued cure notice.” Id. (internal quotation and citation omitted). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Corps of Engineers to Prepare EIS for Permit to Construct Power Lines Over Historic James River

May 01, 2019 — Anthony B. Cavender - Gravel2Gavel
On March 1, the U.S. Court of Appeals for the District of Columbia decided National Parks Conservation Assoc. v. Todd T. Simonite, Lieutenant General, et al. The case involves an application to the U.S. Army Corps of Engineers (Corps) for a construction permit to build electric power lines over the “historic James River, from whose waters Captain John Smith explored the New World.” The Corps concluded after reviewing the thousands of comments submitted to it in connection with this application, and after considering the views of several government agencies and conservation groups, that an Environment Impact Statement (EIS) was not required, and that its Environmental Assessment assured the Corps that the project would not result is significant environmental impacts. The Court of Appeals has concluded that, based on this evidence, the Corps’ refusal to prepare an EIS thoroughly discussing all these points was arbitrary and capricious. The Corps has been ordered to prepare the EIS and to take special note of its obligations under the National Environmental Protection Act (NEPA), the Clean Water Act (CWA) and its obligations under the National Historic Preservation Act. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Focusing on Design Elements of the 2014 World Cup Stadiums

June 30, 2014 — Beverley BevenFlorez-CDJ STAFF
While Garret Murai on his California Construction Law blog admits that the construction of Brazil’s World Cup stadiums has been problematic (construction worker deaths, delays, and cost overruns), he focused on the design work: “…there’s no denying that the venues are stunning, and for a country known for its beauty as well as beauties (think the Girl From Ipanema), dare I say even sexy.” For instance, Murai described the Estadio do Maracana (constructed in 1950 and renovated in 2013) as looking “a bit like the front of the USS Enterprise.” He goes onto explain how the stadium was originally constructed for the 1950 World Cup, and “famous” attendees include Frank Sinatra and the Pope. Read the court decision
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Fourth Circuit Clarifies What Qualifies As “Labor” Under The Miller Act

May 08, 2023 — Jeffrey Hummel - The Construction Seyt
Under the Miller Act, 40 U.S.C. §§ 3131 et seq., contractors hired to work on federal construction projects are required to furnish payment bonds in order to ensure payment to certain persons that provide labor for the project. The United States Court of Appeals for the Fourth Circuit recently issued a published decision clarifying the type of work that qualifies as “labor” under the Miller Act. Elliot Dickson v. Fidelity and Deposit Company (issued April 26, 2023). In that case, the U.S. Department of Defense hired Forney Enterprises (Forney) as the prime contractor on a renovation project at the Pentagon. Forney retained Fidelity and Deposit Company of Maryland (Fidelity) to provide the required Miller Act payment bond. Forney then entered into a subcontract with Elliott Dickson (Dickson), a professional engineer, to work as a project manager on the contract. Dickson primarily supervised labor on the site, but also performed other tasks, including logistical and clerical duties, taking various field measurements, cleaning the worksite, moving tools and materials, and sometimes even watering the concrete himself. Dickson’s work required him to be onsite on a daily basis. Read the court decision
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Reprinted courtesy of Jeffrey Hummel, Seyfarth
Mr. Hummel may be contacted at jhummel@seyfarth.com

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AFL-CIO Joins in $10 Billion Infrastructure Plan

June 30, 2011 — CDJ STAFF

The AFL-CIO has announced plans to generate up to $10 billion in funding for infrastructure development, training construction workers, and making buildings more energy efficient, pledging $20 million to retrofit buildings. Bloomberg News reports that union officials made the announcement in Chicago at the Clinton Global Initiative, releasing a statement from Richard Trumka, president of the union, “we, at the AFL-CIO, believe that together, with our partners in business and government, we can profitably invest significant resources to make America more competitive and energy efficient.” A foot injury prevented Mr. Trumka from attending the event.



The statement also quoted Mark Ayers, president of the Building and Construction Trades Department of the AFL-CIO, “the time is now to become intensely focused on the creation of jobs.”



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Are Defense Costs In Addition to Policy Limits?

December 02, 2015 — Craig Martin – Construction Contractor Advisor
I recently had a discussion with an insurer about whether defense costs were included within the policy limits of a client’s coverage or in addition to policy limits. This was an important discussion because if costs of defense were included in the policy limits, my client was going to exceed those policy limits in a hurry. How would this situation play out with your insurance? Fortunately, the majority of insurance policies, such as Commercial General Liability (CGL) policies, provide that defense costs are “in addition” to the policy limits. But some policies, often times referred to as “burning limits” policies, provide that cost of defense is included in the policy limits. This means that if you have $1,000,000.00 policy limits, your costs of defense will reduce that limit throughout the course of litigation. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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New Jersey Rules that Forensic Lab Analysts Can’t be Forced to Testify

August 06, 2014 — Beverley BevenFlorez-CDJ STAFF
The New Jersey Law Journal reported that the New Jersey Supreme Court has rejected a rule that would have required “laboratory analysts who prepare forensic reports in criminal cases be available for cross-examination at trial.” The court stated that “requiring every analyst who was involved in the testing to be available for questioning by the defense was not required by the U.S. Constitution's Sixth Amendment Confrontation Clause and that doing so would create ‘practical drawbacks that range from moderate to severe.’” Read the court decision
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Unqualified Threat to Picket a Neutral is Unfair Labor Practice

January 08, 2019 — Wally Zimolong - Supplemental Conditions
On December 27, 2018, the National Labor Relations Board enforced a decades old policy that a union’s unqualified threat to picket a neutral employer at a “common situs” a/k/a a construction site is a violation of the National Labor Relations Act. Background The case involved area standards picketing by the IBEW of a project owned by the Las Vegas Convention and Visitors Authority (LVCVA). The IBEW sent a letter to various affiliated unions who were working on the project advising them of its intent to engage in area standards picketing at the project directed to the merit shop electrical subcontractor performing work there. The IBEW also sent a copy of the letter to the LVCVA. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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