Be Mindful Accepting Payment When Amounts Owed Are In Dispute
August 29, 2022 —
Nicholas Korst - Ahlers Cressman & Sleight PLLCAfter completing work on a project, or even during a project, it is not uncommon for some portion of the contract balance and/or a claim to be in dispute. As a contractor or subcontractor, it is important to be careful what is signed (or not signed) upon receipt of any payment both during and after completion of work on a project. One of the most common documents signed related to a receipt of payment is a lien/claim release document. This can be in the form of a conditional, unconditional, progress and/or final release. The language included in the release document is critically important, especially as it pertains to disputed amounts. As a contractor or subcontractor, if there are known disputes related to amounts owing, whether it be contract balance, disputed change order(s), a delay or inefficiency claim, or any other amounts believed to be owed, it is important to include language in the lien release that expressly carves out the disputed amounts. The same should be done for disputes related to extensions of time. This allows the contractor to accept the payment and release rights for the undisputed work, but continue to reserve its right to pursue the amounts in dispute later. If disputed amounts are not carved out, those amounts may effectively be waived and the subcontractor or contractor may lose all rights to recovery.
As a subcontractor in Alaska recently learned, there are potentially other ways a contractor may waive or lose its rights to recover amounts in dispute – without even signing a waiver or release document. In Smallwood Creek, Inc. v. Build Alaska General Contracting, LLC et al., the general contractor sent the subcontractor a check described as “final payment.” The subcontractor believed it was owed more than what the general contractor had sent and refused to accept the check. Months later, the subcontractor deposited the check. The subcontractor reversed course again and attempted to repay the general contractor the amount deposited. The general contractor refused, claiming the subcontractor’s acceptance of payment constituted satisfaction of all amounts owing to the subcontractor.
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Nicholas Korst, Ahlers Cressman & Sleight PLLCMr. Korst may be contacted at
nicholas.korst@acslawyers.com
Fed. Judge Blocks Release of Records on FIU Bridge Collapse, Citing NTSB Investigation
October 23, 2018 —
Miami Herald - Engineering News-RecordOct. 05 --A federal judge Friday blocked the release of documents that could shed light on why a busy road outside Miami was not shut down before a brand-new bridge developing severe cracks collapsed and killed six people.
Judge William Stafford said the National Transportation Safety Board , the federal agency investigating the Florida International University bridge disaster, "was exercising its valid federal regulatory authority" in keeping the documents confidential from the media.
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Engineering News-RecordENR may be contacted at
ENR.com@bnpmedia.com
Public Works Bid Protests – Who Is Responsible? Who Is Responsive?
December 14, 2020 —
Eric Divine - Porter Law GroupMost Public Works Solicitations Are Low Bid
The process for awarding public works projects in California is controlled by the Public Contract Code. Generally, regardless of whether the public agency is the State, a county, a city or a local district, the project is awarded to the contractor who is “responsible” and submits the least expensive “responsive” bid. This is generally known as a “low bid” contract. In the context of public works, the terms responsible and responsive have very important meanings. As a result, State and local governments have gotten into very expensive trouble for not following the law. So, to understand how to best present a bid protest on a low bid solicitation, you, as a contractor should have a good understanding of the meaning of these terms.
Note: There are other methods of contracting for public works that are not low bid, which are typically called “best value” contracts because the procurement process considers factors other than just price. These methods are typically used for large projects because the added complexity and expense of the procurement process only makes sense when the project is itself complex and expensive.
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Eric Divine, Porter Law GroupMr. Divine may be contacted at
edivine@porterlaw.com
San Francisco Museum Nears $610 Million Fundraising Goal
June 26, 2014 —
Dan Levy – BloombergThe biggest museum fundraising campaign in San Francisco history is nearing its $610 million goal two years before the opening of a new wing that will more than double the space for artworks by Andy Warhol, Mark Rothko and David Hockney.
About $570 million, or 94 percent, has been raised by the San Francisco Museum of Modern Art for its 235,000-square-foot (21,800-square-meter) expansion and to add $245 million to the museum’s endowment. The $305 million wing designed by the Snohetta architecture firm is rising behind SFMOMA’s current home, opened two decades ago in the technology-heavy South of Market area, or SOMA.
“In 1995, we were the pioneers when SOMA was pretty run-down, and the tech boom followed us,” Neal Benezra, the museum’s director, said June 20 in a presentation at Bloomberg LP’s San Francisco offices. “Our expansion will solidify the neighborhood as a cultural hub.”
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Dan Levy, BloombergMr. Levy may be contacted at
dlevy13@bloomberg.net
Subcontractor Strength Will Drive Industry’s Ability to Meet Demand, Overcome Challenges
October 10, 2022 —
Anwar Ghauche - Construction ExecutiveOwners, developers and general contractors get a lot of notoriety for construction projects, especially in these infrastructure-focused times. However, the subcontractor is truly the one under the microscope, as this group requires the most care and attention to ensure the owners and operators are able to meet accelerating demand and public expectations.
The challenges in the current environment are many. Inflation and supply chain disruptions are highly detrimental to specialty trades in the mechanical, electrical, plumbing, drywall and other areas. Reports show that the construction industry, in particular, has seen an
increase of over 20% in the cost of supplies and building materials in the last year alone and, in some cases, over
90% since the start of the pandemic. While these costs are passed along to the owner, the subcontractor still retains significant cash flow risk. This truth is amplified in a volatile market. As if the cost was not enough, equipment and material shortages coupled with rising interest rates only compound the problem—and tenfold for small businesses.
Subcontractors are likely to feel the greatest pressure from supply-related issues. Inflation combined with supply chain shortages require subcontractors to prepare earlier for projects and, when possible, purchase materials upfront. However, the consequence of this preliminary preparation equates to further strains on cash flow. In an effort to remain aligned on schedules and budgets, subcontractors frequently buy all of a project’s materials as soon as a contract is signed—if not before.
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Anwar Ghauche, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Yes, Indeedy. Competitive Bidding Not Required for School District Lease-Leasebacks
October 01, 2014 —
Garret Murai – California Construction Law BlogRemember when you discovered that the tooth fairy wasn’t real?
It was kind of a bummer on one hand learning that it wasn’t a fairy that magically appeared to swap your tooth for cold hard cash, but rather your mom or, visual horrors, dad.
At the same time, it was, to your nearly-halfway-to-a-decade-on-this-planet-wizened-six-year-old mind, confirmation of what you had a sneaking suspicion was the case in any event.
And, so it is with the next case.
Lease-Leasebacks
In California, most public school construction projects are built using the traditional design-bid-build project delivery method in which a design professional designs the project, the project is put out for competitive bid and the selected contractor builds the project.
But not all school construction projects are built this way.
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Garret Murai, Kronick Moskovitz Tiedemann & GirardMr. Murai may be contacted at
gmurai@kmtg.com
ASCE's Architectural Engineering Institute Announces Winners of 2021 AEI Professional Project Award
April 19, 2021 —
American Society of Civil EngineersRESTON, Va. – The
American Society of Civil Engineers' (ASCE) Architectural Engineering Institute (AEI) is pleased to announce the 100 Mount Street project by Skidmore, Owings & Merrill and Billie Jean King Main Library, also by Skidmore, Owings & Merrill as Best Overall Projects winners for AEI's Professional Project Awards. The 100 Mount Street project won the award Best Overall Project Over $100 Million, while the Billie Jean King Main Library won the award for Best Overall Project Under $100 Million. Traditionally, AEI announces project winners during its in-person annual Awards Banquet; however, ASCE held the banquet virtually this year to follow CDC guidelines which suggest avoiding large gatherings.
The AEI Professional Project Award recognizes outstanding achievements in design and construction by honoring the art and science of an integrated approach to architectural engineering. The program focuses on high performance buildings including structural, mechanical, electrical and lighting systems as well as construction management and architectural engineering integration. Projects are evaluated on originality and innovative character, integration and collaboration, sustainability, energy efficiency and economics, effective use of technology and constructability and site logistics.
ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS
Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org and follow us on Twitter, @ASCETweets and @ASCEGovRel.
About ASCE's Architectural Engineering Institute
Established in 1998, AEI is the premier organization for architectural engineering, promoting an integrated, multi-disciplinary approach to planning, design, construction and operation of buildings, by encouraging innovation, collaboration and excellence in practice, education and research of architectural engineering. For more information, visit www.asce.org/aei.
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American Society of Civil Engineers
CDJ’s #5 Topic of the Year: Beacon Residential Community Association v. Skidmore, Owings & Merrill, et al.
December 31, 2014 —
Beverley BevenFlorez-CDJ STAFFSteven M. Cvitanovic and Whitney L. Stefko of Haight Brown & Bonesteel analyzed the Beacon decision, and discussed how it affects developers and general contractors: “On July 3, 2014, the California Supreme Court (the “Court”) came out with its decision in Beacon Residential Community Association v. Skidmore, Owings & Merrill, et al. The Beacon decision settled a long-standing dispute in California about whether design professionals such as architects and engineers owe a duty to non-client third parties. In finding that the plaintiffs in Beacon could state a claim against the architects of the Beacon project, the Court also sowed the seeds of change in the way contracts are structured between developers, architects, engineers, and even general contractors.”
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