The (Jurisdictional) Rebranding of The CDA’s Sum Certain Requirement
April 15, 2024 —
Jordan A. Hutcheson and Stephanie Rolfsness - Watt TiederThe Contract Disputes Act (the “CDA”), 41 U.S.C.A. §§ 7101 et seq., which has provided the statutory framework for resolution of most contract disputes between the federal government and its contractors since 1978, has recently been the subject of changes in judicial interpretation, despite no corresponding statutory changes. The CDA’s implementing provisions in the Federal Acquisition Regulations (FAR), require that contractors submit a claim to the government in the form of written demand to a contracting officer requesting a final decision and seeking the payment of money in a sum certain prior to pursuing resolution via board or court. However, with respect to the sum certain requirement, the United States Court of Appeals for the Federal Circuit issued an opinion in late 2023 determining that this requirement “should not be given the jurisdictional brand” as it has categorically received in the past. Rather, the court concluded that the sum certain requirement is merely an element of a claim for relief under the CDA that a contractor must satisfy to recover. This rebranding does not debase the sum certain requirement, but it does indicate a renewed focus on what constitutes “jurisdictional” in government contracts litigation.
Reprinted courtesy of
Jordan A. Hutcheson, Watt Tieder and
Stephanie Rolfsness, Watt Tieder
Ms. Hutcheson may be contacted at jhutcheson@watttieder.com
Ms. Rolfsness may be contacted at srolfsness@watttieder.com
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Progress, Property, and Privacy: Discussing Human-Led Infrastructure with Jeff Schumacher
August 30, 2021 —
Aarni Heiskanen - AEC BusinessWe sat down with Jeff Schumacher, Microsoft’s Global Workplace Services Regional Lead Ireland, UK, and MEA, in the run-up to his keynote speech at WDBE 2021. Our conversation covered how technical innovation has changed the sector, the dangers of assumption, and why retaining a human-centred perspective is vital in a data-driven business.
As we leave lockdown, the conversation shifts from measuring the impact on society to the positive change that our urban spaces and built environment can provide. But when it comes to contemporary professional working spaces and the habits of the people working within them, it can be difficult to find a solution that works.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Bright-Line Changes: Prompt Payment Act Trends
September 16, 2024 —
Stephanie L. Cooksey - Peckar & Abramson, P.C.Untimely payment by the owner for contract work and additional work on construction projects can place an unfair financial burden on contractors and subcontractors. Most states have attempted to eliminate or mitigate this inequity in construction contracting through Prompt Payment Acts that govern payment deadlines and provide remedies for untimely payment. This article addresses the legislative trends aimed at minimizing the risk of non-payment, overdue payment, and withholding retainage in favor of downstream parties to a construction contract.
Fortifying Contractor Protections with “Bright-Line” Language
Over the last decade, states have been tightening prompt payment laws by replacing broad, general statutory language with bright-line rules. What is a bright-line rule? A specific or definite figure, a quantifiable marker—i.e., something owners, contractors, subcontractors, and suppliers should be aware of. Practically speaking, the more bright-line a prompt payment statute is, the greater the likelihood it will affect a construction project in your state.
A standard form construction contract, if not reviewed carefully, can create conflicts or confusion if it gives a party more leeway on payment deadlines than the applicable Prompt Payment Act. For example, consider an owner-issued Construction Change Directive (“CCD”) that requires a contractor to commence additional work immediately while a formal change order is negotiated. Consequently, a CCD can push financial burdens downstream, whether inadvertently or not, and may conflict with statutory payment deadlines. Nevertheless, an owner can be justified in its utilization of a CCD to maintain the project schedule. How should the parties competing interests be resolved?
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Peckar & Abramson, P.C.
Governor Inslee’s Recent Vaccination Mandate Applies to Many Construction Contractors and their Workers
September 13, 2021 —
Brett M. Hill - Ahlers Cressman & Sleight PLLCThis month Governor Jay Inslee enacted COVID vaccination requirements that apply to certain construction contractors and their workers in Washington state. Inslee’s vaccine proclamation becomes effective October 18, 2021 and requires construction contractors, subcontractors, and their workers to be fully vaccinated to perform work onsite on certain covered projects.
The following are types of covered projects where the vaccine mandate applies:
- State agencies: All contractors working at projects for Washington state agencies (including WSDOT, DES, DNR, etc.) if the work is required to be performed in person and onsite, regardless of the frequency or whether other workers are present. The vaccine mandate applies to indoor and outdoor settings and there is no exemption even if social distancing requirements can be met.
- Education/Higher Education/Child Care: All contractors performing work onsite for K-12, higher education (community colleges, technical colleges, and 4-year universities), child care and other facilities where students or persons receiving services are present. New and unoccupied projects are exempt but it does apply to public and private projects.
- Medical facilities: All contractors performing work at a “healthcare setting” where patients receiving care are present. “Healthcare setting” is defined as any public or private setting that is primarily used for the delivery of in-person health care services to people. “Healthcare setting” includes portions of a multi-use facility, but only the areas that are primarily used for the delivery of health care, such as a pharmacy within a grocery store. Additional information is on the state’s Q&A page.
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Brett M. Hill, Ahlers Cressman & Sleight PLLCMr. Hill may be contacted at
brett.hill@acslawyers.com
Bad Faith and a Partial Summary Judgment in Seattle Construction Defect Case
February 10, 2012 —
CDJ STAFFThe US District Court of Washington has issued a ruling in the case of Ledcor Industries v. Virginia Surety Company, Inc. Ledcor was the builder of a mixed-use real estate project in Seattle called the Adelaide Project. Ledcor purchased an insurance policy from Virginia Surety covering the project. After the completion of the project, Ledcor received complaints of construction defects from the homeowners, which they forwarded to Virginia Surety.
Virginia Surety denied coverage on several grounds. Absent any lawsuit, Virginia claimed that there was “not yet any duty to defend or indemnify.” Further, as the policy commenced ten days after work on the project was substantially completed, Virginia cited a provision in the policy that excluded coverage for damage that occurred before the policy began. As problems included water intrusion, Virginia noted an exclusion for fungal damage. Finally, Virginia noted that it was not clear whether damage was due to Ledcor’s own actions.
The homeowners sued over the construction defects. Ledcor settled these suits before trial. In this, they were defended by, and settlements were paid by American Home, another of Ledcor’s insurers. Ledcor claims that Virginia Surety acted in bad faith by denying coverage and by its failure to investigate the ongoing nature of the work at the project.
The judge determined that Virginia Surety acted in bad faith when it invoked the fungus exclusion. Virginia noted that fungal damage “‘would have been’ referenced in the list of construction defects,” however, the HOAs claimed only “water stains” and “water damage,” and made no mention of mold or fungus. The court found that Virginia Surety “was not entitled to deny coverage simply because it may have suspected that mold or fungus damage existed.” The court noted that further proceedings would be needed to determine what portion of the settlement Virginia is obligated to pay.
The court found that there were matters of fact to be determined on the further issues in the case. The judge wrote that although Virginia acted in bad faith in invoking the fungus exclusion, it still had to be determined if they were in breach of contract by failing to defend Ledcor. Ledcor still needs to show that the damages claimed by the HOA were due to work actually covered by Virginia Surety.
Ledcor made an additional claim that Virginia Surety violated Washington’s laws concerning the insurance industry. Here, the court noted that the improper exclusion for fungus issues “constitutes a per se unfair trade practice.” Six other claims were made under this law. The court found that Virginia Surety did not misrepresent “pertinent facts or insurance policy provisions.” It also issued its denial letter promptly, satisfying the fifth provision. However, Virginia Surety did violate the second provision, in that it failed “to acknowledge and act reasonably promptly upon communications with respect to claims.” Two other issues could not be determined.
Judge Martinez’s decision granted a summary judgment to Ledcor on the issue of bad faith. An additional summary judgment was granted that Virginia Surety violated Washington’s Insurance Fair Conduct Act. Judge Martinez did not grant summary judgment on any of the other issues Ledcor raised.
Read the court’s decision…
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Augmenting BIM Classifications – Interview with Eveliina Vesalainen of Granlund
July 19, 2017 —
Aarni Heiskanen - AEC BusinessBuildingSMART Finland is supplementing building information modeling (BIM) guidelines in a national standardization project, as a part of the KIRA-digi program. In her Master’s thesis, Eveliina Vesalainen, of Granlund, has compared European BIM classifications for mechanical, electrical, and plumbing (MEP) design. Her study is the groundwork for the upcoming Finnish norms.
“I’m a 26-year-old, soon to be Master of Science, and I come from Mäntsälä. I live in Helsinki and work at Granlund, a leading Finnish MEP consultancy,” Eveliina explains. She has a bachelor’s degree in environmental engineering, but became interested in MEP by chance.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
info@aepartners.fi
Insured's Motion for Reconsideration on Denial of Coverage Unsuccessful
September 28, 2017 —
Tred R. Eyerly - Insurance Law HawaiiThe insured's motion to reconsider an order granting the insurer summary judgment challenges the insured's theory it was an additional insured was rejected by the federal district court. Hanover Ins. Co. v. Superior Labor Servs., 2017 U.S. Dist. LEXIS 133127 (E.D. La. Aug. 21, 2017).
The court previously granted Lexington Insurance Company's motion for summary judgment, finding Allied Shipyard, Inc. was not an additional insured and was not entitled to a defense in the underlying actions. On reconsideration, Allied argued the court ruled it was not a "certificate holder" under the Lexington policy, but Allied was not given the opportunity to conduct discovery with respect to whether it was a "certificate holder." Summary judgment was granted before Allied answered Lexington's amended complaint in intervention. Allied submitted its answer could have raised a genuine issue of material fact because it was entitled to coverage under the policy if it was a certificate holder.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Limitations on the Ability to Withdraw and De-Annex Property from a Common Interest Community
October 10, 2013 —
Derek Lindenschmidt — Higgins, Hopkins, McLain & Roswell, LLC.On February 28, 2013, the Colorado Court of Appeals issued its opinion with regard to the ability of an owner (and in this case, a real estate investment owner) to withdraw and de-annex lots from a common interest community. Specifically, in Vista Ridge Homeowners Ass’n., Inc. v. Arcadia Holdings at Vista Ridge, LLC, 300 P.3d 1004 (Colo. App. 2013), the Court denied Arcadia’s appeal of a lower Colorado District Court ruling which invalidated Arcadia’s attempt to withdraw and de-annex 70 single-family lots which it owned from the 94-lot Vista Ridge Filing No. 9.
The applicable Declaration reserved the right to withdraw or de-annex any portion of the community in accordance with the Colorado Common Interest Ownership Act (CCIOA), and further limited such right to the extent that “no portion of the Property may be withdrawn or de-annexed after a Lot or Unit in that portion of the Property has been conveyed to an Owner other than a Declarant or a Builder.”
The decision ultimately turned on the meaning of a “portion” of the property, as intended by CCIOA, and as applied to the specific language in the Vista Ridge Declaration.
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Derek LindenschmidtDerek Lindenschmidt can be contacted at
lindenschmidt@hhmrlaw.com
