Potential Pitfalls Under the Contract Disputes Act for Federal Government Contractors
February 28, 2018 —
Sarah K. Carpenter – Smith Currie PublicationsThe Contract Disputes Act (CDA) governs monetary and non-monetary disputes arising out of contracts or implied-in-fact contracts between the federal government and contractors. Because the CDA is an exclusive remedy, it is important that contractors be wary of the many pitfalls that may be encountered by a contractor seeking to assert a claim against the government under the CDA.
The pitfalls faced by a contractor under the CDA can arise before a contractor becomes aware of a potential claim. Pursuant to the Federal Acquisition Regulation (FAR) § 43.204(c), a contracting officer should include in any supplemental agreement, including any change order, a Contractor’s Statement of Release which requires a contractor to execute a broad release of the government from any and all liability under the contract. As a result of this FAR provision, in executing a routine change order, a contractor may inadvertently release its right to pursue a potential claim under the CDA. A contractor should always review any release language prior to executing a supplemental agreement or change order with the government.
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Sarah K. Carpenter, Smith CurrieMs. Carpenter may be contacted at
skcarpenter@smithcurrie.com
Structural Health Check-Ups Needed but Are Too Infrequent
August 16, 2021 —
Jeff Rubenstone - Engineering News-RecordKnowing when a building is structurally deteriorating, and actually doing something about it can be very different things, as the collapse in Surfside, Fla., has shown this month. And while onsite visual inspections are still the common kind of structural assessment, other methods can assess the health of a building or piece of infrastructure and determine its soundness (see p. 69).
Reprinted courtesy of
Jeff Rubenstone, Engineering News-Record
Mr. Rubenstone may be contacted at rubenstonej@enr.com
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Attempt to Overrule Trial Court's Order to Produce Underwriting Manual Fails
April 25, 2022 —
Tred R. Eyerly - Insurance Law HawaiiAfter being ordered by the trial court to produce its underwriting manual, the insurer's writ of certiorari to quash the order was denied by the Florida Court of Appeals. People's Trust Ins. Co. v. Foster, 2022 Fla. App. LEXIS 542 (Fla. Ct. App. Jan. 26, 2022).
The insured sued after his claim for damage caused by a water pipe in his home that leaked. In discovery, the insurer refused to produce its underwriting manual. Ruling on a motion to compel, the trial court ordered that the manual be produced. The insurer appealed.
On appeal, the insurer argued its underwriting manual was categorically prohibited in breach of contract cases until and unless bad faith litigation commenced. Although courts had quashed the premature discovery of insurers' business practices, claims files, underwriting files, underwriting manuals, and the like in breach of contract actions, there was no categorical legal rule prohibiting discovery of underwriting manuals in breach of contract cases, especially if they were relevant.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
OSHA Updates: You May Be Affected
July 19, 2017 —
Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLPGovernor Brown Signs Legislation Increasing Cal/OSHA Fines
Cal/OSHA has increased its maximum fines for the first time in more than twenty years pursuant to legislation recently signed into law by Governor Brown. The changes nearly double the maximum fines and have brought California in line with the Federal standard. The increase in fines will not be isolated to this year, as fines will now be automatically increased annually based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U). Additionally, any employer who repeatedly violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, can no longer receive any adjustment of a penalty assessed based on the good faith or the history of previous violations. Such adjustments were previously commonplace.
Specific increases are listed below (all increases refer to maximum fines, Cal/OSHA has discretion as to the amount of the fine when issuing the citation):
- Section 6427 of the Labor Code was amended to increase fines, not of a serious nature, from $7,000 for each violation to $12,471 for each violation.
- Section 6429 of the Labor Code has increased fines for repeat violations; raising the maximum fine from $70,000 to $124,709 for each violation. Additionally, Section 6429 also raised the minimum fine for repeat violations from $5,000 to $8,908.
- Section 6431 raised fines for posting or recordkeeping violations from $7,000 to $12,471 per violation.
Full text of the penalty section of the labor code may be found
here
California OSHA Emergency Action Plan elements revised; California now more consistent with Federal Standards
Revisions to General Safety Orders section 3220(b) became effective on June 5, 2017 and contain two minor changes for California employers with regards to Emergency Action Plans (EAP).
The first change requires that an employer’s EAP be more detailed in describing the type of evacuation that is to be performed, not just the route for an evacuation. The previous element of the EAP simply required that the plan contain, “[e]mergency escape procedures and emergency escape route assignments.” The current element of the EAP requires that, “[p]rocedures for emergency evacuation, including type of evacuation and exit route assignments,” be identified.
The second change clarifies the language surrounding employees performing rescue or medical duties. Previously the only requirement in the EAP regarding rescue and medical duties was for employees that performed rescue and medical duties. The current version requires that the EAP contain, “[p]rocedures to be followed by employees performing rescue or medical duties. The use of the word and created potential gaps in plans as it is likely that employees may not be performing both rescue and medical duties, instead performing just rescue or medical duties. Plans must now include procedures to be followed by employees who perform either rescue or medical duties.
It is recommended that your EAP be in writing and updated to comply with the revised General Safety Orders section 3220. The full text of General Safety Orders section 3320 can be seen
here. Please contact us if you would like further details regarding your Emergency Action Plan.
Deadline for Electronic Submission of OSHA 300 Log Records for Injuries and Illnesses Delayed
On May 12, 2016, the Federal Occupational Safety and Health Administration (OSHA) published a rule entitled “Improve Tracking of Workplace Injuries and Illnesses” which required certain employers subject to Federal OSHA regulations to submit the information from their completed 2016 Form 300A to OSHA via electronic submission no later than July 1, 2017. On June 28, 2017, OSHA, via a
Notice of Proposed Rule Making, has proposed a December 1, 2017 deadline for the electronic reporting; the electronic reporting system is scheduled to be available on August 1, 2017.
Per the California Department of Industrial Relations, California employers are not required to follow the new requirements and will not be required to do so until "substantially similar" regulations go through formal rulemaking, which would culminate in adoption by the Director of the Department of Industrial Relations and approval by the Office of Administrative Law.
Cal/OSHA drafted a proposed rulemaking package to conform to the revised federal OSHA regulations by amending the California Code of Regulations, title 8, sections 14300.35, 14300.36, and 14300.41; these are currently under review with the State.
It is currently unclear what, if any, impact the delay by OSHA will have on the proposed amendments to the California Code.
We will keep you posted as to the changes in California recordkeeping requirements. Please contact Louis “Dutch” Schotemeyer with any questions regarding Cal OSHA or your safety program. Dutch is located at Newmeyer & Dillion’s Newport Beach office and can be reached at dutch.schotemeyer@ndlf.com or by calling 949.271.7208.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Default, Fraud, and VCPA (Oh My!)
September 12, 2023 —
Christopher G. Hill - Construction Law MusingsI’ve discussed the
Virginia Consumer Protection Act (VCPA) and the interaction between
fraud and contract on numerous occasions here at Construction Law Musings. A recent case from the Eastern District of Virginia District Court discusses this interaction (along with
that dreaded default) further.
In
Bhutta v. DRM Construction Corp., the homeowners, the Bhuttas, sued DRM for breach of contract, conversion, fraud, and a violation of the VCPA. These allegations were based upon DRM having taken a $40,000.00 deposit from the Bhuttas and then failing to even begin work. As you may have guessed from the title of this post, DRM did not respond to the Complaint and the Court granted default. The Court then took up the question of whether the Bhuttas had alleged enough on each count for default judgment on those counts. After going through a procedural recitation and finding that DRM was properly served and that the Court had jurisdiction, the Court got to the meat of the matter.
The Court held that the Bhuttas properly plead a breach of contract for the obvious reason. The reason was that DRM never performed any work and the Bhuttas were damaged because they both paid the deposit and also had to hire another contractor to complete the work at a higher price. The Court granted default judgment for breach of contract.
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The Law Office of Christopher G. HillMr. Eyerly may be contacted at
te@hawaiilawyer.com
Understanding the Real Estate and Tax Implications of Florida's Buyer Ban Law
July 16, 2023 —
Kelly Erb - White and Williams LLPLast month, Gov. Ron DeSantis (R) of Florida signed a new law that would prohibit people who are not U.S. citizens or permanent residents and whose "domicile" is in China from purchasing certain real property in the state. Generally, the prohibition applies to agricultural land and other land within ten miles of restricted areas, including military bases and infrastructure like airports and wastewater treatment plants.
The law, which takes effect on July 1, 2023, would also impose criminal penalties on any person or real estate company that knowingly sells real estate in the Sunshine State to anyone impacted by the ban.
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Kelly Erb, White and Williams LLPMs. Erb may be contacted at
erbk@whiteandwilliams.com
Bar Against Forum Selection Clauses in Construction Contracts Extended to Design Professionals
October 28, 2015 —
Garret Murai – California Construction Law BlogIt’s a tactic as old as war itself.
You can often gain a strategic advantage by selecting the location of battle.
The same is true in litigation.
But as the next case illustrates, when it comes to disputes between contractors (and design professionals), it isn’t always the combatants who dictate where the battle will be fought.
Vita Planning and Landscape Architecture, Inc. v. HKS Architects, Inc.
In Vita Planning and Landscape Architecture, Inc. v. HKS Architects, Inc., Case No. A141010, California Court of Appeals for the First District (September 25, 2015), Texas architecture firm HKS Architects, Inc. (“HKS”) was hired to provide architectural services. HKS’ design service agreement included a Texas forum selection clause which provided:
As a condition precedent to the institution of any action [or] lawsuit all disputes shall be submitted to mediation” and “[a]ll claim , disputes, and other matters in question between the parties arising out of or related to the Agreement . . . be resolved by the . . . courts in . . . Texas.”
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com
Message from the Chair: Kelsey Funes (Volume I)
November 06, 2023 — Marissa L. Downs - The Dispute Resolver
I am so honored to assume the Division 1 mantle from my friend, Tom Dunn, and look forward to carrying on his good work.
For those of you who don’t know me, I’d like to take this opportunity to share a bit about my background. I grew up in New Orleans and went to LSU for undergraduate and law school. (Geaux Tigers!) I started my practice in 1997 at Phelps Dunbar LLP in Baton Rouge, where I still practice today. I manage the litigation group in the Baton Rouge office of the firm. I practice as a construction lawyer full time and serve on the Construction Panel of the American Arbitration Association and serve as a mediator in construction cases.
I am married to Dr. Chris Funes (the world’s best pediatrician) and we are the parents to two high schoolers. My son is a high school senior and my daughter is a sophomore. So, when I am not lawyering, I have been spending my time lately touring colleges, prepping for homecoming, and helping to teach my daughter to drive (all very relaxing!!). We also have a very sweet (and very hairy) rescue dog, Maggie, who makes sure we get lots of walks. Read the court decision
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Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP
Ms. Downs may be contacted at mdowns@lauriebrennan.com
