MTA’S New Debarment Powers Pose an Existential Risk
July 15, 2019 —
Steven M. Charney, Gregory H. Chertoff & Paul Monte - Peckar & Abramson, P.C.The normal project and contractual risks faced by contractors, consultants and suppliers to the Metropolitan Transportation Authority are considerable. A new law and regulations mandating that the MTA debar contractors, consultants and suppliers for unexcused schedule and cost overruns creates a new and unfair existential risk.
The new law, Public Authorities Law Section 1279-h, slipped into the New York State budget bill and passed without public comment, was enacted on April 12, 2019. Implementing regulations were issued on June 5, 2019, and mandate that the MTA debar contractors (defined to include consultants, vendors and suppliers) if they: (1) fail to achieve substantial completion of their contractual obligations within 10% of the adjusted contract time; or (2) present claims for additional compensation that are denied in an amount that exceeds the total adjusted contract amount by 10% or more.[1]
To say that your business and your livelihood are at risk is not an overstatement. The MTA umbrella includes the New York City Transit Authority, MTA Capital Construction, Bridges & Tunnels, Long Island Railroad and Metro North, among others. A debarment by one of these authorities will lead to a debarment by all of them, and then to a debarment by all New York State agencies and authorities,[2] and possibly debarment across state lines. Public and major private owners, as part of their RFP and procurement processes, routinely inquire regarding a bidding contractor’s debarment history.
The risk is to new contracts and, because the MTA has decided to give retroactive effect to the law and regulations, to contracts that are already ongoing (even though these risks could not have been considered, priced or agreed to by contractors or their sureties).
Reprinted courtesy of Peckar & Abramson, 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
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Traub Lieberman Attorneys Recognized as 2022 Illinois Super Lawyers® and Rising Stars
February 21, 2022 —
Traub LiebermanTraub Lieberman is pleased to announce that two Partners from the Chicago, IL office have been selected to the 2022 Illinois Super Lawyers list. In addition, three Partners have been named to the 2022 Super Lawyers Rising Stars list.
2022 Illinois Super Lawyers
2022 Super Lawyers Rising Stars
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Traub Lieberman
Breaking with Tradition, The Current NLRB is on a Rulemaking Tear: Election Procedures, Recognition Bar, and 9(a) Collective Bargaining Relationships
September 09, 2019 —
Keahn Morris, John Bolesta & James Hays - Construction and Infrastructure Law BlogIn its 84-year history, the National Labor Relations Board (NLRB, Board or Agency) has promulgated a very small number of rules pursuant to the Administrative Procedures Act, relying, instead, on individualized adjudications to establish the Board’s legislative policies. However, breaking with that long tradition, the current Board now appears to be on the verge of a formal rulemaking jag for on May 22, the Board released its “Unified Agenda” of anticipated regulatory actions which, in addition to proceeding with rulemaking regarding joint employer standards, announced the Board’s intention to consider formal rulemaking in a number of critical areas. Consistent with that wide-ranging Agenda, on August 12, the Board published a Notice of Proposed Rulemaking (NPRM) over the objection of Democratic appointee, Lauren McFerran, that would amend the Agency’s rules and regulations governing the filing and processing of election petitions in three very important ways. This NPRM, therefore, deserves attention.
The first possible amendment will modify the Board’s administrative election blocking charge practice by establishing a regulation-based vote and impound procedure to be used when a party, typically a union facing possible decertification, files an unfair labor practice (ULP) charge and, based thereon, seeks to block the holding of an election.
The second possible amendment will modify the Board’s current recognition bar case law by codifying prior Board case doctrine and creating a regulation-based requirement of notice of voluntary recognition to affected employees and a 45-day open period within which affected employees may call for an election before that voluntary recognition will be allowed to operate as a bar to employees raising later questions concerning the union’s representative status (QCR).
Reprinted courtesy of Sheppard Mullin attorneys
Keahn Morris,
John Bolesta and
James Hays
Mr. Morris may be contacted at kmorris@sheppardmullin.com
Mr. Bolesta may be contacted at jbolesta@sheppardmullin.com
Mr. Hays may be contacted at jhays@sheppardmullin.com
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The Heat Is On
June 13, 2022 —
Christopher Durso - Construction ExecutiveEvery year, NASA and the National Oceanic and Atmospheric Administration (NOAA) team up to assess global temperatures and climate trends. (Yes, that NASA. A big part of the space agency’s mission is focused on Earth science, with the goal of better understanding the planet’s interconnected systems.) The two groups released their findings for 2021 this past January, with several predictably alarming highlights:
- 2021 was the sixth-warmest year on record, with the average global surface temperature about 1.5°F over the 20th-century baseline periods that the agencies use for comparison and nearly 2°F higher than in the late-19th century.
- The surface temperature in the Northern Hemisphere was also the sixth-highest on record, at nearly 2°F over baseline, with the land temperature exceeding the baseline by 2.8°F.
- Extreme climate events included an above-average Atlantic hurricane season, with 21 storms, and a severe heat wave in the northwestern United States and western Canada in June during which Canada recorded its highest temperature ever, at 121°F.
Reprinted courtesy of
Christopher Durso, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Gone Fishing: Tenant’s Insurer Casts A Line Seeking To Subrogate Against The Landlord
October 17, 2022 —
William L. Doerler - The Subrogation StrategistIn J&J Fish on Ctr. Str., Inc. v. Crum & Forster Specialty Ins. Co., No. 20-cv-644-bhl, 2022 U.S. Dist. LEXIS 16361, the United States District Court for the Eastern District of Wisconsin (District Court) recognized that “[t]here will be no further fish fries on Center Street until someone pays to repair the collapsed floor at J&J Fish on Center Street, Inc. (J&J Fish).” The contenders were: 1) J&J Fish; 2) its’ insurer, Crum & Forster Specialty Insurance Company (Insurer); and 3) J&J Fish’s landlord, Vision Land, LLC (Vision). Recognizing Insurer’s right to subrogate against Vision based on the terms of the parties’ lease, the District Court held Insurer owed J&J Fish coverage for the losses it sustained, but that Insurer could subrogate against Vision for anything it had to pay J&J Fish.
In J&J Fish, Vision and J&J Fish signed a lease (Lease) for a building (the Building) located in Milwaukee, Wisconsin. The Lease required Vision to “purchase and keep in full force and effect on the building(s) . . . insurance against fire and such other risks as may be included in all-risks policies . . .” Vision, however, never obtained any insurance on the Building. Pursuant to the Lease, Vision also agreed to “maintain and repair the structure including the slab floor and exterior walls of the Premises.”
With respect to J&J Fish, the Lease required J&J Fish to maintain “Physical Damage insurance, including but not limited to fire . . . and all other risks of direct physical loss as insured . . . for the full replacement cost of all additions, improvements (including leasehold improvements) and alterations to the Premises.” J&J Fish purchased a commercial property and casualty insurance policy (the Policy) from Insurer. The Policy covered “additions, improvements . . . and alterations” as the Lease required. In addition, it insured the Building itself against “collapse,” subject to certain exceptions.
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William L. Doerler, White and Williams LLPMr. Doerler may be contacted at
doerlerw@whiteandwilliams.com
Insurer Springs a Leak in Its Pursuit of Subrogation
August 21, 2023 —
Katherine Dempsey - The Subrogation StrategistIn Nationwide Prop & Cas. Ins. Co. v. Fireline Corp., No. 1:20-cv-00684, 2023 U.S. Dist. LEXIS 104241, the United States District Court for the District of Maryland (District Court) considered whether the events giving rise to the plaintiff’s claims fell within the scope of a previously formed agreement, thereby rendering the plaintiff’s claims subject to the agreement’s time limitation and waiver of subrogation provisions. The District Court found that the claims fell within the scope of the agreement.
The plaintiff, Nationwide Property & Casualty Insurance Company (Insurer), provided property insurance to Maple Lawn Homeowners Association, Inc. (Maple Lawn) for common property located in Fulton, Maryland, including a community center (the Subject Premises). On January 18, 2018, Maple Lawn entered into an Inspection Agreement (the Agreement) with defendant, Fireline Corporation (Fireline), wherein Fireline agreed to provide:
- annual fire alarm inspection and testing services,
- quarterly sprinkler inspection and testing, and
- annual portable fire extinguisher testing and inspection.
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Katherine Dempsey, White and Williams LLPMs. Dempsey may be contacted at
dempseyk@whiteandwilliams.com
Las Vegas Partner Sarah Odia Named a 2023 Mountain States Super Lawyer Rising Star
August 28, 2023 —
Payne & Fears LLPPayne & Fears’ partner
Sarah J. Odia has been named to the list of 2023 Super Lawyers® Mountain States Rising Stars, recognizing her excellent contributions to the Las Vegas area legal community.
A Super Lawyers® Rising Stars selection is an honor reserved for those attorneys who exhibit excellence in practice. Lawyers nominate fellow attorneys who demonstrate excellence in the legal profession.
Reprinted courtesy of
Payne & Fears LLP
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Georgia Appellate Court Supports County Claim Against Surety Company’s Failure to Pay
August 30, 2017 —
David R. Cook Jr. - Autry, Hanrahan, Hall & Cook, LLPIn 2015, Hall County (Georgia) brought legal action against Selective Insurance Company of America, Inc., the surety company for contractor Ruby Forrest. Hall County had contracted Ruby Forrest to complete and maintain sidewalk systems within three residential subdivisions that Ruby Forrest owned and was developing. Ruby Forrest did not complete the work as promised, and Hall County brought action against the contractor’s surety to recover under performance / maintenance bonds for uncompleted work and to assert bad faith claim for punitive damages and attorney fees.
Selective Insurance did not dispute that it had issued the bonds, that Ruby Forrest did not complete the sidewalk systems within the bond periods or their extensions, or that Hall County provided Selective Insurance with timely notice of Ruby Forrest’s failure to complete the work. Instead, Selective Insurance asserted that the original claim by Hall County was time-barred under a provision in the bonds that stated that “the Issuer will have no more liability after” the expiration date of the bond.
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David R. Cook, Autry, Hanrahan, Hall & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
