Seattle Washington Building Expert Directory

DOE Abruptly Cancels $13B Cleanup Award to BWXT-Fluor Team

February 01, 2021 — Mary B. Powers & Debra K. Rubin - Engineering News-Record
The U.S. Energy Dept. has cancelled a $13-billion, 10-year contract awarded just a few months ago to a team led by BWXT Technical Services and Fluor Federal Services to manage millions of gallons of radioactive waste stored underground at its Hanford, Wash., former weapons site—confirming plans for a major scope expansion and lengthy reprocurement but sharing few details. Reprinted courtesy of Mary B. Powers, Engineering News-Record and Debra K. Rubin, Engineering News-Record Ms. Rubin may be contacted at rubind@enr.com Read the full story... Read the court decision
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Cal/OSHA’s Toolbox Has Significantly Expanded: A Look At Senate Bill 606

December 13, 2021 — Michael J. Studenka - Newmeyer Dillion
Governor Gavin Newsom recently signed into law Senate Bill 606, set to take effect on January 1, 2022. With proponents of the bill citing the need to hold large employers accountable for COVID-related workplace hazards, SB 606 creates two new categories of employer violations. First, SB 606 creates a rebuttable presumption that if a type of violation is discovered at one particular worksite, Cal/OSHA can extrapolate that the violation is an “enterprise-wide” violation at all of the other company worksites. Additionally, SB 606 adds a new category of “egregious violations” to Cal/OSHA’s arsenal, adding a penalty multiplier for such violations. Finally, SB 606 increases Cal/OSHA’s investigative capabilities by authorizing Cal/OSHA to issue a subpoena to employers should they fail to “promptly provide” information requested during an investigation. As further explained below, the consequences of violating Cal/OSHA regulations has become significantly greater and more expensive, particularly for larger employers with multiple worksites. ENTERPRISE-WIDE VIOLATIONS AND THE SEVERE REMEDIES THAT FOLLOW Under SB 606, employers with more than one worksite will now face a rebuttable presumption that a violation at one location is actually “enterprise-wide” if either of the following are true:

A written policy or procedure violates any Cal/OSHA standard, rule, order or regulation; OR
Cal/OSHA finds evidence of a “pattern or practice” of the same violation being committed by the employer at one or more of its worksites.

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Reprinted courtesy of Michael J. Studenka, Newmeyer Dillion
Mr. Studenka may be contacted at michael.studenka@ndlf.com

Is A Miller Act Payment Bond Surety Bound by A Default or Default Judgment Against Its Principal?

February 08, 2021 — David Adelstein - Florida Construction Legal Updates
Maguire-O’Hara Construction, Inc. v. Cool Roofing Systems, Inc., 2020 WL 6532852 (W.D. Oklahoma 2020) is an interesting case dealing with suretyship law and the subject of whether a Miller Act payment bond surety is bound by a default or default judgment against its prime contractor (bond principal). In this case, a subcontractor sued a prime contractor for breach of contract and the contractor’s Miller Act payment bond surety for a breach of the payment bond. The prime contractor did not respond to the lawsuit and the subcontractor obtained a default against the contractor. The Miller Act payment bond surety did engage counsel to defend itself in the dispute. Prior to trial, the subcontractor moved in limine to preclude the surety from raising defenses at trial under the subcontract because a default was entered against the prime contractor. The subcontractor argued that the surety should be bound by the default and, therefore, precluded from raising liability defenses under the subcontract. Such a ruling would leave the surety no defenses disputing liability at trial.

[A] suretys’ liability under the Miller Act coincides with that of the general contractor, its principal. Accordingly, a surety [can] plead any defenses available to its principal but [can]not make a defense that could not be made by its principal. Maguire-O’Hara Construction, supra, at *2 (internal citations and quotations omitted).

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

2024 Construction Law Update

December 23, 2023 — Garret Murai - California Construction Law Blog
We would like to wish you and yours a happy holiday season as we approach 2024. The first half of the 2023-2024 legislative session saw the introduction of 3,028 bills, which, according to legislative observers, are the most bills introduced in a session in more than a decade, perhaps reflecting the fact that California has a record number of new legislators with over a quarter taking the oath of office for the first time. Of these bills, Governor Newsom signed nearly 400 into law including several impacting the construction industry related to climate change and housing affordability. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

MTA Debarment Update

December 02, 2019 — Steven M. Charney, Gregory H. Chertoff & Paul Monte - Peckar & Abramson, P.C.
Alliance for Fair and Equitable Contracting Today, Inc., a nonprofit formed by five trade associations, including the GCA, the BTEA and the NY Building Congress, has sued the Metropolitan Transportation Authority over rules that debar contractors for delays and cost overruns on MTA projects without regard to the reasons for the delays and cost overruns. As described in our prior client alert (see here), the current rules automatically debar firms that are determined to have gone over the MTA approved contract price or time by more than 10%. The rules do not consider mitigating circumstances. Delays and cost overruns are often caused by unforeseen conditions, design errors and omissions, and changes requested by the MTA. The MTA’s rules could lead contractors to absorb additional costs they shouldn’t be responsible for rather than face the risk of being debarred. As argued in Alliance’s action, “Debarment is the death penalty for a public works contractor, and not just in New York. A debarment by the MTA could result in debarment nationwide, given that public and private contractors throughout the country commonly inquire about bidders’ debarment history when considering project bids. The Debarment Statute and MTA Regulations thus effectively export an unreasonable law not only throughout New York State, but to all other states as well.” Reprinted courtesy of Saxe Doernberger & Vita, P.C. attorneys Steven M. Charney, Gregory H. Chertoff and Paul Monte Mr. Charney may be contacted at scharney@pecklaw.com Mr. Chertoff may be contacted at gchertoff@pecklaw.com Mr. Monte may be contacted at pmonte@pecklaw.com Read the court decision
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CAPSA Changes Now in Effect

November 14, 2018 — Wally Zimolong - Supplemental Conditions
Back in June, I posted about changes coming to the Pennsylvania Contractor and Subcontractor Payment Act (CAPSA), 73 P.S. Section 501, et. seq. The Act applies to virtually all private construction projects in Pennsylvania. As of last week (Oct. 10), those changes are effective. While there is some argument to the contrary, these changes are NOT retroactive and apply to all projects going forward from that date. To recap, here are some of the important changes you need to be aware of:

Contractual waivers. Parties cannot waive the applicability of the act through contract. Therefore, any clause in a contract purporting to waive the Payment Act’s applicability is void.
Suspension of work. Unpaid contractors and subcontractors have always enjoyed a common law right to suspend performance until payment was made. Now, they also have a statutory right to do so. Section 5 of the Payment Act ads a subpart (e) which states that an unpaid contractor or subcontractor can suspend performance without penalty if it is not paid.

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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Congratulations to San Diego Partner Alex Giannetto and Senior Associate Michael Ibach on Settling a Case 3 Weeks Into a 5-Week Trial!

April 15, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Alex Giannetto and Senior Associate Michael Ibach of BWB&O’s San Diego office started a trial in San Diego set to last at least five weeks. Plaintiffs alleged causes of action of negligence, trespass and nuisance against BWB&O’s client, arguing the owner/property manager did not properly handle alleged overwatering of the front yard, allegedly resulting in a landslide impacting 8 homes on a City slope in Carlsbad. Cross-Complainant City alleged independent negligence to fix the slope it owned and controlled as well as various indemnity-based causes of action against BWB&O’s client. Plaintiffs claimed over $24 million in damages, while Cross-Complainant placed sole blame for the incident on BWB&O’s client around $6 million. Heading into trial, it was made clear that neither Plaintiffs nor Cross-Complainant would accept anything less than 7-figures to settle BWB&O’s client out of the case. In the first week of trial, BWB&O was able to leverage motions in limine, opening statements, and cross-examinations to secure a dismissal of three of the four causes of action alleged by Plaintiff that were associated with pain & suffering. In the second week of trial, BWB&O secured a dismissal of Cross-Complainant’s negligence cause of action paving the way for a settlement with Plaintiffs. Leveraging the threat of a non-suit when Plaintiffs rested, BWB&O secured resolution of Plaintiffs’ complaint for a fraction of what had previously been sought. Finally, BWB&O was able to secure a dismissal of the remaining indemnity-based causes of action in the cross-complaint and fully extract the client from the matter. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

How the Pandemic Pushed the Construction Industry Five Years Into the Future

September 06, 2021 — Alexandra McManus & Hussein Cholkamy - Construction Executive
On any given day, there are a multitude of variables playing out on construction jobsites, from maintaining daily logs to track hundreds of workers to creating daily schedules to keep projects on track. What made an industry that’s arguably about 20 years in the past get a dramatic technology boost five years into the future? A global pandemic that nobody saw coming. When COVID-19 made its first appearance on construction sites in early 2020, the domino effect of project shutdowns and labor shortages created uncertainty along with budget and timeline nightmares. The pandemic shook up the industry, with many projects coming to a screeching halt. As general contractors scrambled to keep their projects moving and workers safe, technology proved to be the solution. With jobsites shutting down, coupled with a nationwide labor shortage, real-time visibility over workforce variables, such as who was on-site, where they were and who they interacted with was more important than ever. Safe proximity tracking, virtual density and access control technologies helped construction companies gain more control, visibility and the ability to deal with the ever-changing regulations due to the global pandemic. More importantly, it helped keep their valuable workforce safe. Reprinted courtesy of Alexandra McManus & Hussein Cholkamy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Cholkamy may be contacted at hussein@eyrus.com Ms. McManus may be contacted at alex@eyrus.com Read the court decision
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SEATTLE WASHINGTON BUILDING EXPERT DIRECTORY AND CAPABILITIES