Seattle Washington Building Expert Directory

Corrective Action Protest Grounds for GSA Schedule Federal Construction Contractors

September 09, 2024 — Marissa L. Downs - The Dispute Resolver
A contract awarded, protested, terminated, appealed, then reinstated. It’s no secret that federal construction procurements are plagued with uncertainty. From delays, constructive suspensions, compromised supply chains, the litigation-laden critical path method, and the mandate for all construction materials used in federally funded projects for infrastructure to be produced in the United States under the Build America, Buy America Act (BABAA) (to name just a few traditional and emerging favorites), just one of these issues could fill the rest of anyone’s month with substantive research. To add one more, which is entirely unique to bid protests, federal contractors–including construction contractors–listed in a General Service Administration (GSA) Schedule may have new grounds to have a contract award reinstated that was terminated by a federal agency pending a GAO decision. GAO Protest An initial GAO protest filed by Deloitte & Touche LLP (Deloitte) argued that the National Geo-Spatial Intelligence Agency (Agency) wrongfully made an award to Kearney & Company, P.C. (Kearney) when the Agency: (1) improperly evaluated quotes; and (2) failed to conduct a proper best-value tradeoff analysis. At issue was a competed task order with Kearney under a GSA FSS multiple-award contract. Before the GAO issued an opinion, however, it held an unrecorded predictive-outcome conference with Deloitte and Kearney where the only mutual consensus was the likely ineligibility of all offerors for the relevant award. The Agency subsequently elected to take corrective action, terminating Kearney’s contract award for convenience, amending the solicitation to avoid issues (including undisputed issues) addressed in the GAO protest. After the Agency adopted their corrective action, the GAO protest was dismissed as academic and moot. 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

Stay of Coverage Case Appropriate While Court Determines Arbitrability of Dispute

April 22, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit vacated a discovery order issued by the district court and remanded the case for issuance of a stay while the arbitrability of the coverage dispute was reviewed. Cameron Parish Recreation #6 v. Indian Harbor Ins. Co., et al., 2024 U.S. App. LEXIS 3804 (5th Cir. Feb. 19, 2024). The plaintiffs purchased surplus lines polices from various insurance companies to provide coverage for commercial properties. The policies included an arbitration provision for resolving any disputes. After plaintiffs were denied coverage for damage to their properties from Hurricane Laura, they sued the insurers. The insurers filed motions to compel arbitration and to stay the case. The district court refused the stay and ordered limited discovery into arbitrability. The insurers appealed. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Expect the Unexpected (Your Design Contracts in a Post-COVID World)

April 18, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
Have you adapted your post-COVID practice to better plan for the “unexpected” ? In particular, have you looked at–and revised– your professional services contracts to give yourself a little more breathing room for unaccounted issues that may arise? If not, no time like the present. Don’t like that saying? How about ” a stitch in time saves nine?” No? Still nothing? What about a picture of something so completely unexpected it shocks you– say, a fireman commuting home, in fire-fighting regalia, on a tricycle? Okay, here you go… Now that I have your attention– you should make it a practice to regularly review and update your professional services agreements, and you should consider issues such as:

Does your agreement provide for extra compensation if you have to spend more time or a longer period providing construction administration services for material delays or labor shortages? If not, it should.
Does your agreement have a well-written “act of God” provision– one that includes pandemic/epidemics as part of the “act of God” conditions in which a term may become void? If not, add it now!

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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

Court finds subcontractor responsible for defending claim

May 18, 2011 — CDJ STAFF

In an unpublished decision, the California Fourth Appellate District Court has reversed the judgment of Judge Linda B. Quinn of the Superior Court of San Diego. In the case Inland California, Inc. v. G.A. Abell, Inland, a general contractor had subcontracted with Apache Construction and Precision Electric Company (G.A. Abell).

Apache alleged that extra demolition and drywall work was needed due to Precisionâ€™s electrical work. Inland tendered a defense of Apacheâ€™s claims. However, Precision did not provide any defense. Inland withheld payment from Precision.

At trial, Inland â€œconceded Precision earned the $98,000 in progress payments Inland withheld.â€ They were obligated to additionally pay Precisionâ€™s costs and attorney fees.

The Fourth Appellate District court has overturned this and remanded the case back to the lower court. The judges determined that Precision was obligated to defend itself against the claims raised by Apache and therefore vacated the judgment against Inland.

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District Court's Ruling Affirmed in TCD v American Family Mutual Insurance Co.

May 10, 2012 — CDJ STAFF

In the case, TCD, Inc. v American Family Mutual Insurance Company, the district court’s summary judgment was in favor of the defendant. In response, the Plaintiff, TCD, appealed “on the ground that the insurance company had no duty to defend TCD under a commercial general liability (CGL) insurance policy.” The appeals court affirmed the decision.

The appeals ruling provides a brief history of the case: “This case arises out of a construction project in Frisco, Colorado. The developer, Frisco Gateway Center, LLC (Gateway), entered into a contract with TCD, the general contractor, to construct a building. TCD entered into a subcontract with Petra Roofing and Remodeling Company (Petra) to install the roof on the building. The subcontract required Petra to "indemnify, hold harmless, and defend" TCD against claims arising out of or resulting from the performance of Petra’s work on the project. The subcontract also required Petra to name TCD as an additional insured on its CGL policy in connection with Petra’s work under the subcontract.”

Furthermore, “TCD initiated this case against Petra and the insurance company, asserting claims for declaratory judgment, breach of insurance contract, breach of contract, and negligence. The district court entered a default judgment against Petra, and both the remaining parties moved for summary judgment. The court granted summary judgment on the entirety of the action, in favor of the insurance company, concluding that the counterclaims asserted by Gateway against TCD did not give rise to an obligation to defend or indemnify under the CGL policy.”

The appeals court rejected each contention made by TCD in turn. First, “TCD contend[ed] that Gateway’s counterclaims constitute[d] an allegation of ‘property damage,’ which is covered under the CGL policy.” The appeals court disagreed. Next, “TCD argue[d] that [the court] should broaden or extend the complaint rule, also called the ‘four corners’ rule, and allow it to offer evidence outside of the counterclaims to determine the insurance company’s duty to defend in this case.” The appeals court was not persuaded by TCD’s argument.

The judgment was affirmed. Judge Roman and Judge Miller concur.

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Design Firm Settles over Construction Defect Claim

July 31, 2013 — CDJ STAFF
A Pennsylvania township has announced that it has reached a settlement with the architectural firm that designed its administration building. Cee Jay Frederick Associates will be paying than $1.05 million to settle claims of defects in the design of the building. West Whiteland’s administration building was completed in July 2007. The first leaks were noticed in November and December 2008. In response, the township stopped payments to the contractor, Magnum, Inc. Magnum sued, claiming that their work was not to blame for the leaks. Magnum joined the township in suing the design firm. Although Cee Jay Frederick Associates will be paying the township to settle the claim, West Whiteland will be paying $75,000 of that back to the firm to settle outstanding bills that had been withheld during litigation. Read the court decision
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Insurer Must Defend General Contractor

April 03, 2023 — Tred R. Eyerly - Insurance Law Hawaii
Interpreting Massachusetts law, the federal district court determined consequential damage resulting from the insured's faulty work triggered a duty to defend. Capitol Spec. Ins. Corp. v. Dello Russo Enter. LLC, 2023 U.S. Dist. LEXIS 11627 (D. Mass. Jan. 24, 2023). Peta-Gay and Michael Print sued the insured, Dello Russo, who they hired as the general contractor for extensive remodelling and renovation of their building. During the demolition work, certain structural load-bearing walls were removed, including a portion of an exterior bricked masonry wall. Shoring of other parts of the building was inadequate and removal of the masonry wall reduced the structural integrity of the building. Cracks began to appear in the remaining portion of the masonry wall and increased over the next few days. Soon thereafter, the City of Boston determined the building was dangerous and that salvage of the undamaged portions was not feasible. Therefore, the building was demolished. Certain Underwriters at Lloyd's, London, filed suit against Dello Russo as subrogee of the Prinns. Dello Russo tendered the complaint to its insurer, Capitol Specialty Insurance Corporation, who defended under a reservation of rights,. Capitol then filed a suit seeking a declaratory judgment that it had no duty to defend or to indemnify. The parties cross-claimed for summary judgment. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Daily Construction Reports: Don’t Leave the Job Without Them

January 11, 2022 — Patrick Barthet - Construction Executive
Trying to remember exactly what was done at a job site last week, last month or last quarter along with knowing who worked at the site is nearly impossible without a written, video or electronic record for reference. That’s why daily construction reports are so important. Yet many contractors fail to create these reports. And those that do create them, may do it only at the beginning of a project or sporadically throughout the progress of a job, and generally only when they are reminded to do so. Daily reports only become truly effective when they are, in fact, done daily. Whether it is to help resolve a pending delay issue or clarify a job site access claim, or any number of other matters where what happened at the time is so critical, those daily construction reports should be completed daily. Be Timely The reason that daily reports are admissible in court (with corroborating testimony) is that they are interpreted as being recorded at or about the time the events in question occurred. Field managers should, therefore, write up these reports daily while the work is occurring or very soon thereafter to capture as accurate an account as possible. If these reports are not created until the end of the week or month, the information will not be as accurate and may not be as helpful in supporting a particular position. Reprinted courtesy of Patrick Barthet, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Barthet may be contacted at pbarthet@barthet.com

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