Contractors and Owners Will Have an Easier Time Identifying Regulated Wetlands Following Recent U.S. Supreme Court Opinion
August 01, 2023 —
David Scriven-Young - ConsensusDocsContractors appreciate how difficult it often is on a technical level to perform work in or near wetlands or other environmentally sensitive areas. Such work is even more difficult due to the complex, and ever-changing regulations issued by the United States Environmental Protection Agency (“EPA”) under the Clean Water Act (“CWA”). The CWA applies to “navigable waters”, which are defined as “the waters of the United States.” To determine whether certain wetlands are in fact “the waters of the United States”, contractors and owners have had to engage in a fact-intensive “significant-nexus” determination dependent upon a lengthy list of hydrological and ecological factors found in the regulations. Recently, the U.S. Supreme Court struck down the applicability of those regulations and instituted a simpler test to determine whether wetlands on an owner’s property fall within them.
In
Sackett v. EPA, the Sacketts purchased property near a lake in Idaho. In preparation for building a home, they began backfilling the site with dirt and rocks. A few months later, the EPA sent the Sacketts a compliance order informing them that their backfilling violated the CWA because their property was part of protected wetlands. The EPA demanded that the Sacketts immediately undertake activities to restore the site and threatened the Sacketts with penalties of over $40,000 per day if they did not comply. According to the EPA, the wetlands on the Sacketts’ lot fell under the jurisdiction of the CWA because they were “adjacent to” (i.e., in the same neighborhood as) an unnamed tributary on the other side of a 30-foot road, which fed into the nearby lake. The EPA concluded that the Sacketts’ wetlands, when considered together with a large nearby wetland complex, significantly affected the ecology of the lake. Thus, the EPA charged that the Sacketts had illegally dumped soil and gravel into “the waters of the United States.”
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David Scriven-Young, Peckar & Abramson PCMr. Scriven-Young may be contacted at
dscriven-young@pecklaw.com
Five Reasons to Hire Older Workers—and How to Keep Them
July 06, 2020 —
Charlie Kimmel - Construction ExecutiveThe economic downturn in 2008 created a black hole of talent in the construction industry. As a result, finding project managers between the ages of 28 and 33 and superintendents between the ages of 23 and 30 in today’s market can be difficult, if not impossible in some cases. To make up for this gap in available talent, construction executives are going to have to look to project managers and superintendents in the 58-to-64 age range. Fortunately, there are numerous benefits to hiring older workers.
1. OLDER WORKERS WANT TO MENTOR THE NEXT GENERATION.
This is their most significant benefit: the older generation truly enjoys teaching younger construction workers and passing on skills and knowledge, while also getting to do a job they’re good at. This means investing in one experienced worker today can pay dividends for the quality of a company’s workforce for decades to come, as mentorship programs have proven to increase the skills and loyalty of younger workers. If a company wants someone with deep knowledge and broad experience to help mold the next generation of construction workers, they should hire an older employee.
Reprinted courtesy of
Charlie Kimmel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Viva La France! 2024 Summer Olympics Construction Features Sustainable Design, Including, Simply Not Building at All
August 26, 2024 —
Garret Murai - California Construction Law BlogIf you’re like me and many others you’ve probably been watching the 2024 Summer Olympics in Paris, France. We were in Paris last year and we passed the construction site of the Aquatics Centre, one of only three new permanent facilities that was constructed for this year’s Olympics. On a side note, Parisian Uber drivers are some of the most aggressive drivers I’ve seen, replete with honking, hand gestures, and cursing at other drivers and pedestrians in, of course, French. Putain!
In recent history, Olympic construction costs have skyrocketed, often vastly exceeding the planned budgets of the host cities, and, in recent years, has caused even some host city hopefuls to reconsider
whether to even throwing their hats in the ring. The 2020/2021Summer Olympics in Tokyo, for example, had an original budget of $7.5 billion. The actual cost was over $13 billion and, depending on what beans you count, may have been over twice that! Paris seeks to change all of this.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Be Careful with “Green” Construction
March 18, 2019 —
Christopher G. Hill - Construction Law MusingsAs readers of Construction Law Musings can attest, I am an enthusiastic (if at times skeptical) supporter of sustainable (or “green”) building. I am solidly behind the environmental and other benefits of this type of construction. However, I have likened myself to that loveable donkey Eeyore on more than one occasion when discussing the headlong charge to a sustainable future. While I see the great benefits of a privately built and privately driven marketplace for sustainable (I prefer this term to “green” because I find it less ambiguous) building stock and retrofits of existing construction, I have felt for a while that the glory of the goal has blinded us somewhat to the risks and the need to consider these risks as we move forward.
Another example reared it’s ugly head recently and was pointed out by my pal Doug Reiser (@douglasreiser) at his Builders Counsel Blog (a great read by the way). Doug describes a project that I mentioned previously here at Musings and that is well described in his blog and in a recent newsletter from Stuart Kaplow (@stuartkaplow), namely, the Chesapeake Bay Foundation’s Philip Merrill Environmental Center project. I commend Doug’s post for a great description of the issues, but suffice it to say that the Chesapeake Bay Foundation sued Weyerhauser over some issues with a sustainable wood product that failed. While the case was dismissed on statute of limitations grounds, the case illustrates issues that arise in the “new” sustainable building world.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Addenda to Construction Contracts Can Be an Issue
March 30, 2016 —
Christopher G. Hill – Construction Law MusingsWe’ve all been there. Your client either has a well drafted standard subcontract (with any luck in consultation with an experienced construction attorney) that it presents to its subcontractors and suppliers or your client is presented with a construction contract that has some provisions that it would prefer were either different or gone altogether.
In the first of these scenarios, your client often gets push back from a subcontractor to change certain provisions. Such a response is not necessarily a bad thing depending on the provisions that the potential subcontractor may have. The construction contract documents will govern the way that the project moves forward and will be strictly enforced in Virginia and elsewhere so some early give and take is not unusual or unwanted.
In the second scenario, your client is likely to be reading a fairly one sided document. The General Contractor has drafted the contract and is “north” of your client in the payment chain. Like it or not, they will in most instances leave it to you and your attorney to root out the particularly egregious on sided terms and seek to negotiate them to some sort of equality.
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Christopher G. Hill, Law Office of Christopher G. Hill, PCMr. Hill may be contacted at
chrisghill@constructionlawva.com
Novation Agreements Under Federal Contracts
November 29, 2021 —
Hal Perloff - Construction ExecutiveA unique aspect of doing business with the federal government is the built-in limits on a contractor’s right to assign the contract or the right to payment under the contract to third parties. The Anti-Assignment Act (41 U.S.C. § 6305) prohibits the transfer of a government contract or interest in a government contract to a third party. An assignment of a contract in violation of this law voids the contract except for the government’s right to pursue a breach of contract remedies.
What’s a contractor to do when it is acquired/merged with another firm, is restructured or goes through a variety of other types of corporate transaction? The Federal Acquisition Regulations recognize that firms involved in government contracts get bought and sold from time to time and includes procedures for the novation of contracts in certain situations to avoid a potential violation of the Anti-Assignment Act.
What Is a Novation?
A novation is a three-party agreement between the United States, the original contractor and the new contractor offering to assume the government contract. The purpose the novation is to allow the government to recognize a new contractor as the successor-in-interest to a government contract and avoid a violation of the Anti-Assignment Act.
Reprinted courtesy of
Hal Perloff, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Mr. Perloff may be contacted at
hal.perloff@huschblackwell.com
Motions to Dismiss, Limitations of Liability, and More
January 23, 2023 —
Christopher G. Hill - Construction Law MusingsRemember BAE Sys. Ordnance Sys. V. Fluor Fed. Sols? I examined that case on two occasions previously here at Construction Law Musings. Previously the discussions were about the
mix (or lack thereof) between fraud and contract and about how
careful contract drafting is key.
In the
most recent opinion in this ongoing litigation from March of 2022, the Court examined various motions to dismiss the Complaint and Counterclaim in the matter. As a reminder, the basic facts are as follows.
The US Army Joint Munitions Command (“Army”) contracted with BAE Systems OrdnanceSystems, Inc. (“BAE”) to operate and maintain the Radford Army Ammunition Plant (“RFAAP”)under a basic ordering agreement (“BOA”). Under BOA Task Order 002, BAE contracted to replace the legacy NC facility at the RFAAP with a newer one (the “NC Project”). Initially, BAE subcontracted the NC Project to Lauren Engineers & Constructors (“Lauren”), but later terminated Lauren. Despite terminating Lauren, BAE’s timeline to complete the NC Project remained unchanged and BAE was required to use Lauren’s design for the NC Project. BAE gave interested bidders access to the Lauren design and other related documents and required the selected subcontractor to perform in accordance with the 85% complete Lauren design, that the Lauren design could be relied on for accuracy, and the selected subcontractor only had to complete the unfinished parts. Fluor Federal Solutions, LLC (“Fluor”) submitted a request for information (“RFI”) asking BAE about the standards referenced in the SOW. Fluor was unable to determine the completeness of the Lauren design but relied on BAE’s assertion that the design was 85% complete. BAE rejected Fluor’s initial bid as being too high given what BAE had already paid Lauren for its design and told Fluor to lower its bid because the design was close to complete. Fluor lowered its price and submitted another bid proposal that outlined a firm-fixed-price design/build that forecasted 32 months to complete the NC Project. BAE awarded Fluor an Undefinitized Contract Action (“UCA”) in the amount of $9 million dollars, later increased to $32 million. Under the UCA, Fluor began procuring materials and physical construction before a formal subcontract was agreed upon. On December 17, 2015, BAE and Fluor agreed to a fixed-price design and build subcontract (the “Subcontract”) in which Fluor agreed to design, construct, and partially commission the NC Project for $245,690,422.00, which included money spent already in the UCA. When this litigation began, Fluor was scheduled to complete its work by December 2020, 2.5 years beyond the originally agreed-upon completion date.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Williams v. Athletic Field: Hugely Important Lien Case Argued Before Supreme Court
June 17, 2011 —
Douglas Reiser, Builders Council BlogWell, it finally made it. The most important Washington lien case of recent memory was argued in front of the Washington Supreme Court on Tuesday, June 14, 2011. So, what should we all expect?
As I was reading through my RSS feeds this afternoon ? I was stopped dead in my tracks. Williams v . Athletic Field, the Division II case that has been a frequent topic here on Builders Counsel, has finally been argued before the Supreme Court. All of you who have been anxiously awaiting this day, you can check out the Supreme Court submissions by following this link.
The Williams case has been the center of attention for construction lawyers and construction organizations over the past year. Some have called for complete lien law reform, others have tried to patch a hole in the law. Now, we can expect a ruling from the highest court in the state. That ruling will have a major impact on whether the Legislature feels compelled to change lien law.
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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com
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