Seattle Washington Building Expert Directory

When a Request for Equitable Adjustment Should Be Treated as a Claim Under the Contract Disputes Act

August 29, 2022 — David Adelstein - Florida Construction Legal Updates
In federal contracting, contractors are sometimes torn about submitting a request for equitable adjustment (known as an “REA” under 48 C.F.R. 252.243-7002) or submitting a formal claim under the Contract Disputes Act (41 U.S.C. s. 7103), the latter requiring a final decision by the contracting officer and starts the clock with respect to interest and preserving rights. It is also sometimes not easy for the contracting officer receiving an REA to determine whether the REA is actually a claim under the Contract Disputes Act requiring more immediate action. This recent take by the United States Court of Appeals for the Federal Circuit hits the nail on the head:

We recognize that contracting officers will sometimes face the difficult challenge of determining whether a request for equitable adjustment is also a claim. Contractors must choose between submitting a claim—which starts the interest clock but requires the contracting officer to issue a final decision within 60 days—and submitting a mere request for equitable adjustment—which does not start the interest clock but gives the contractor more time to negotiate a settlement and possibly avoid hefty legal fees. The overlap between these two types of documents might create room for gamesmanship. For example, a contractor could submit a document that is a claim—starting the interest clock—but appears to be a mere request for equitable adjustment—causing the contracting officer to not issue a final decision within the 60-day deadline and allowing interest to accrue for months or years. But the government has tools to address this challenge: The contracting officer can communicate to the contractor that she is going to treat the document as a claim and issue a final decision within 60 days. Or the government can explicitly require the contractor to propose settlement terms and attempt to settle disputes before submitting a claim to the contracting officer for a final decision.

Zafer Construction Company v. U.S., 2022 WL 2793596, *5 (Fed.Cir. 2022).

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

Look to West Africa for the Future of Green Architecture

May 16, 2022 — Kriston Capps - Bloomberg
In 2014, a crowd of demonstrators stormed Burkina Faso’s National Assembly building, setting it ablaze and ending the nearly 30-year rule of President Blaise Compaoré. A year later, Burkenabè architect Diébédo Francis Kéré was asked to imagine a new parliamentary building — one that would reflect a more democratic future for the West African nation. Kéré conceived a six-story stepped pyramid that slopes up gently from the ground, inviting citizens to gather, climb and take in views of the capital city, Ouagadougou. The ruins of the former parliament building next door would be transformed into a rainwater-collecting memorial park. The project remains a ways off: Burkina Faso continues to struggle with political unrest, including a coup d’état in January 2022. But Kéré’s fast-growing prominence may improve the odds that his vision will eventually materialize. In March, he became the first African architect to win the Pritzker Architecture Prize, the design field’s top honor. Read the court decision
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Reprinted courtesy of Kriston Capps, Bloomberg

SunEdison Gets Shinsei Bank Funding for Japan Solar Power Plant

March 12, 2015 — Ehren Goossens – Bloomberg
(Bloomberg) -- SunEdison Inc., a U.S. solar developer, got financing from Tokyo-based Shinsei Bank Ltd. for a large-scale project in the country. The 9.6-megawatt Tarumizu project on the southern Japanese island of Kyushu will power about 3,000 homes, Maryland Heights, Missouri-based SunEdison said Wednesday in a statement. The project is under construction and expected to be completed in September. Financial details weren’t disclosed. Read the court decision
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Reprinted courtesy of Ehren Goossens, Bloomberg
Mr. Goossens may be contacted at egoossens1@bloomberg.net

Blackstone Said in $1.7 Billion Deal to Buy Apartments

January 21, 2015 — Hui-yong Yu – Bloomberg
Blackstone Group LP (BX), the biggest owner of U.S. single-family houses, agreed to buy 36 apartment properties across the country for about $1.7 billion as it expands its rental business, according to two people with knowledge of the transaction. The low-rise, garden-style properties are being sold by Praedium Group, a New York-based real estate investment firm, and contain about 11,000 apartments, said the people, who asked not to be identified because the deal is private. About half of the buildings are in California, Washington, D.C., and Boston, with the rest located around the U.S., they said. Read the court decision
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Reprinted courtesy of Hui-yong Yu, Bloomberg
Hui-yong Yu may be contacted at hyu@bloomberg.net

Force Majeure Recommendations

August 15, 2022 — Denise Motta - Gordon & Rees Construction Law Blog
This Bulletin provides guidance to contractors, subcontractors, suppliers, and others to ensure compliance with contractual change order requirements in the event work on a construction project is impacted by a force majeure event. Contract Protection Tips: A force majeure event is defined as an unforeseeable circumstance that prevents someone from fulfilling a contract. Because many events arising on a construction project could be arguably unforeseen, it is imperative that the contract contain a Force Majeure provision. Examine all contracts for the applicable Force Majeure provision. Look for a clause like this:

§ 8.3.3 Any failure or omission by Owner or Contractor in performance of its obligation shall not be deemed a breach or create any liability for damages or other relief (other than additional time) if it arises from any cause beyond the reasonable control of such party, including, without limitation, acts of God, floods, fire, explosions, storms, earthquakes, acts of public enemy, war, terrorism, rebellion, insurrection, riot, sabotage, invasion, epidemic, quarantine, strikes, lockouts, labor disputes or other industrial disturbances, or any order or action by any governmental agency, or causes of similar nature.

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Reprinted courtesy of Denise Motta, Gordon Rees Scully Mansukhani, LLP
Ms. Motta may be contacted at dmotta@grsm.com

Texas Supreme Court Holds Anadarko’s $100M Deepwater Horizon Defense Costs Are Not Subject To Joint Venture Liability Limits

February 27, 2019 — Sergio F. Oehninger & Michael S. Levine - Hunton Andrews Kurth
Reversing a Texas Court of Appeals decision that allowed Anadarko’s Lloyd’s of London excess insurers to escape coverage for more than $100 million in defense costs incurred in connection with claims from the Deepwater Horizon well blowout, the Supreme Court of Texas held that the insurers’ obligations to pay defense costs under an “energy package” liability policy are not capped by a joint venture coverage limit for “liability” insured. Anadarko Petroleum Corp. et al. v. Houston Casualty Co. et al., No. 16-1013 (Tex. Jan. 25, 2019). While the Lloyd’s of London insurers had agreed to pay Anadarko $37.5 million for damages, they declined to cover $100 million-plus in defense fees, arguing that both Anadarko’s liability and defense expenses are subject to the $37.5 million joint venture limit for “liability” insured. Anadarko asserted that only amounts paid as damages to third parties are subject to that limit. Defense costs, however, are not amounts paid as damages to a third party and, thus, are not a “liability.” Those amounts, therefore, are not subject to the joint venture limit and are instead subject to the policy’s $150 million coverage limit. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Read the court decision
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Traub Lieberman Partner Bradley T. Guldalian Wins Summary Judgment

November 19, 2021 — Bradley T. Guldalian - Traub Lieberman
On September 14, 2021, Traub Lieberman Partner Bradley T. Guldalian secured summary judgment on behalf of a City which operated a park containing a natural bathing spring in Sarasota County, Florida. The underlying loss occurred when the Plaintiff went to the park, entered the spring without incident, swam for more than an hour, then exited the spring and was returning to the area where she had stored her belongings when she slipped and fell on mud and grass, sustaining an open angulated fracture of her right tibia and fibula. The Plaintiff was rushed to the hospital where she underwent open reduction, internal fixation surgery on her right leg which consisted of implantation of a metal rod into the medullary cavity of her tibia that was secured by two proximal and two distal interlocking screws. She was in the hospital for four days. Upon discharge, the Plaintiff was placed in a walking boot and confined to a wheelchair for several months. The Plaintiff incurred nearly $100,000 in medical expenses. The Plaintiff filed a premises liability action against the City claiming it failed to maintain its premises in a reasonably safe condition. The Plaintiff also alleged that the City failed to warn her that the area where she had stored her belongings had become saturated and slippery proximately causing her fall and resulting injuries. After the close of discovery, Mr. Guldalian filed a Motion for Summary Judgment on behalf of the City arguing the wet grass and mud upon which the Plaintiff fell and injured herself was a byproduct of patrons going in and out of the water and walking to and from the area where they stored their belongings, was open and obvious, and did not constitute a dangerous condition as a matter of law. Citing to case law from the Florida Supreme Court which held that it is common knowledge that walks adjacent to, leading to, or surrounding a bathing area generally have water constantly thrown upon them and are in a slippery condition, as well as deposition testimony from the Plaintiff confirming she had been swimming at the spring for the past eighteen plus years and was “very familiar” with the park, the spring, and the area where she normally stored her belongings, Mr. Guldalian argued that some injury-causing conditions, like wet grass and mud surrounding a swimming area, are simply so open and so obvious that they cannot be held, as a matter of law, to give rise to liability as dangerous conditions. Read the court decision
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Reprinted courtesy of Bradley T. Guldalian, Traub Lieberman
Mr. Guldalian may be contacted at bguldalian@tlsslaw.com

Delaware Settlements with Minors and the Uniform Transfer to Minor Act

October 15, 2014 — Stephen J. Milewski – White and Williams LLP
As a Delaware lawyer, one of the most frequently asked questions I get from insurance clients is: “Do all personal injury settlements with minors need to be approved by the Court?” The answer is and always has been yes. This is true regardless of the amount of the settlement. There have, however, been some recent changes under Delaware law which may help facilitate the process and even reduce the costs associated with settling small tort cases with minors. Traditionally, when settling cases with a minor, a Petition would be filed with the trial court (Superior Court) and then a hearing would be scheduled for the parties to present to the Court the terms of the settlement, explain the plaintiff’s injuries and itemize the fee breakdown. This would be the settlement approval process. After that, the plaintiff would be required to have a guardian appointed over the proceeds, which had to be approved by Chancery Court (Delaware’s Court of Equity). The purpose of this process was to ensure the settlement money going to the minor was managed properly; the net proceeds were generally placed into a bank account not to be used by the guardian or the minor until the minor reached the age of majority. To both the plaintiff, and the insurance carrier paying out the settlement, this process was burdensome and added disproportionate costs to small settlements. Read the court decision
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Reprinted courtesy of Stephen J. Milewski, White and Williams LLP
Mr. Milewski may be contacted at milewskis@whiteandwiliams.com

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