Create a Culture of Safety to Improve Labor Recruitment Efforts
September 12, 2022 —
Grant Robbins - Construction ExecutiveThe commercial construction industry must rely on skilled labor to survive. Skilled labor, however, is hard to come by. In fact, many construction firms report projects being delayed because of shortages in the workforce.
Part of the problem is training. Few companies have the time, resources or opportunities to train new construction workers. But the biggest reason for the labor shortage in the construction industry is simply a lack of people joining the trades. Decades ago, construction was a respected career choice. Over the years, however, the pressure to get into a four-year college has created negative perceptions of working in the trades.
Some commercial construction companies choose to work with fewer crews as a result of the lack of skilled labor, therefore limiting the number of jobs they can handle. The labor shortage in the construction industry has simply made it nearly impossible to find subcontractors to adequately staff upcoming projects (one survey found that 35% of contractors had to turn down jobs due to a lack of skilled laborers). This then leads to hikes in construction costs and delays in scheduling, which can take a major toll on business.
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Grant Robbins, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Real Estate & Construction News Roundup (06/06/23) – Housing Woes, EV Plants and the Debate over Public Financing
July 10, 2023 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, we look at the increasing difficulty of purchasing a home, potential international fallout from a new trade deal a renewed commitment by one American automaker to electric vehicles, and more!
It’s becoming
increasingly more difficult for house hunters to find homes, specifically in certain major cities. (Khristopher J. Brooks, CBS)
Due to years of overuse and a decades-long drought, Arizona has
halted new housing construction of parts of metro Phoenix. (AP via NBC)
After several claims by the FTC over privacy concerns regarding its voice assistant Alexa and doorbell camera Ring, Amazon has
agreed to pay over $30 million in fines. (Ayana Archie, NPR)
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Pillsbury's Construction & Real Estate Law Team
Recovering For Inflation On Federal Contracts: Recent DOD Guidance On Economic Price Adjustment Clauses
October 24, 2022 —
Amanda L. Marutzky - ConsensusDocsSince October 2020, inflation in the United States has seen its fastest increase in more than 30 years. In the last year alone, inflation has remained as high as 8.6%. This hike has impacted everything from diesel to steel. In the construction industry, the higher prices of goods and services directly affect how contractors draft their construction contracts.
The Department of Defense (DoD) has taken note of this dramatic price increase and recently issued guidance to its commanding officers and the procurement community. On May 5, 2022, DoD issued a memorandum titled “Guidance on Inflation and Economic Price Adjustments.” The stated purpose of the memo is “to assist COs to understand whether it is appropriate to recognize cost increases due to inflation under existing contracts as well as offer considerations for the proper use of EPA when entering into new contracts.” DoD’s memo responds to contractor and contracting officer concerns about the sudden and unexpected cost increases in labor and materials.
Economic Price Adjustments, or EPAs, are adjustments to a stated contract price upon the occurrence of certain contingencies. FAR 16.203-1. They are of three general types – (1) adjustments based on established prices, (2) adjustments based on actual costs of labor or material, or (3) adjustments based on cost indexes of labor or material. Id. Because EPAs allow for adjustments in a contract price, EPA clauses allow a contractor to recover unanticipated increases in its project costs. For example, FAR 52.216-4, Economic Price Adjustment-Labor and Material, authorizes a contractor to recover for increases in the cost of material or labor. Such recovery is available when costs increase more than 3%, with a maximum recovery of 10% of the original contract price. See also FAR 52.216-2 through FAR 52.216-4. These EPA clauses provide contractors with relief and protection from issues such as dramatic inflation. EPA clauses, however, are not included in all contracts.
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Amanda L. Marutzky, Watt, Tieder, Hoffar, & Fitzgerald, LLP (ConsensusDocs)Ms. Marutzky may be contacted at
amarutzky@watttieder.com
The Colorado Supreme Court affirms Woodbridge II’s “Adverse Use” Distinction
December 20, 2021 —
Luke Mecklenburg - Snell & Wilmer Real Estate Litigation BlogLast year, I posted regarding the Colorado Court of Appeals’ decision in Woodbridge II, which concluded that the “adverse use” element for prescriptive easement claims only requires the claimant to “show a nonpermissive or otherwise unauthorized use of property that interfered with the owner’s property interests.” Viento Blanco, LLC, 2020 COA 34 (Woodbridge II), ¶ 2. Thus, Woodbridge II concluded, the claimants acknowledgement or recognition of an owner’s title alone is insufficient to defeat “adverse use” in the prescriptive easement context. Id. That decision was up for review by the Colorado Supreme Court at the time of my prior post. It has now been affirmed, thereby settling an arguable appellate decision split created by Woodbridge II. See Lo Viento Blanco, LLC v. Woodbridge Condo. Ass’n, Inc., 2021 CO 56 (“Woodbridge”).
“Like the division below, and for much the same reasons,” the Colorado Supreme Court affirmed in Woodbridge “that under Colorado law, a claimant’s acknowledgement or recognition of the owner’s title during the claimant’s asserted prescriptive period does not interrupt the prescriptive use or undermine the claimant’s adverse use.” Woodbridge, ¶ 2. Writing for a unanimous court, Justice Gabriel’s opinion agreed with the Court of Appeals’ reasoning “that although Woodbridge recognized that it did not hold title, no evidence indicated that it had acted in subordination to the owner’s title.” Id. ¶ at 13. The Court further agreed with Woodbridge II’srejection of Lo Viento’s “permissive use” argument because “the permission offered … was conditional and Woodbridge never agreed to any of the conditions set forth therein.” Id. On that basis, Woodbridge confirmed that “a claimant seeking to establish a prescriptive easement need not show that it asserted exclusive ownership of the property during the prescriptive period,” but only “that its use was without permission or otherwise unauthorized and that it interfered with the owner’s property interests.” Id. at ¶ 23.
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Luke Mecklenburg, Snell & WilmerMr. Mecklenburg may be contacted at
lmecklenburg@swlaw.com
Does the Implied Warranty of Habitability Extend to Subsequent Purchasers? Depends on the State
October 08, 2014 —
Beverley BevenFlorez-CDJ STAFFAttorneys for Traub Liberman Straus & Shrewsberry LLP (in JD Supra Business Advisor), discussed how state courts have come to different conclusions as to “whether a subsequent purchaser of a previously inhabited residence can recover contract damages from a builder or general contractor for breach of the implied warranty of habitability.”
Recently, a Pennsylvania “sided with the builder, holding that the implied warranty of habitability was grounded in contract law. Thus, the Court reasoned that an action for breach of the implied warranty of habitability required a showing of contractual privity between the parties. Because there was no contractual privity between the Conways and the builder, the Conways could not pursue an action against the builder based on a breach of the implied warranty of habitability.”
However, other state courts have made other conclusions. “Iowa permits an action for breach of the implied warranty of workmanlike construction by subsequent purchasers and does not require a showing of contractual privity. Rhode Island also does not require contractual privity, but limits liability to latent defects discovered within 10 years of construction.” Vermont and Connecticut, however, require contract privity.
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Teaching An Old Dog New Tricks: The Spearin Doctrine and Design-Build Projects
October 30, 2018 —
John Castro - Gordon & Rees Construction Law BlogThe United States District Court for the Southern District of California has now held that the Spearin doctrine applies to design-build subcontractors where the subcontractor is expected to design a portion of their work. The case is United States for the use and benefit of Bonita Pipeline, Inc., et al. v. Balfour Beatty Construction, LLC, et al. (“Bonita Pipeline”) (Case No. 3:16-cv-00983-H-AGS).
In Bonita Pipeline, a subcontractor sued the general contractor and its sureties alleging breach of contract, breach of implied warranty, declaratory relief, and recovery under the Miller Act. The subcontractor then filed a motion for partial summary judgment against the general contractor on its declaratory relief cause of action, seeking a finding that the general contractor could not shift legal responsibility for its defective plans and specifications to the subcontractor.
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John Castro, Gordon & Rees Scully MansukhaniMr. Castro may be contacted at
jcastro@grsm.com
Break out the Neon: ‘80s Era Davis-Bacon “Prevailing Wage” Definition Restored in DOL Final Rule
August 21, 2023 —
A. Scott Hecker & Ted North - The Construction SeytOn August 8, 2023, the U.S. Department of Labor (DOL)
announced its
final rule related to the Davis-Bacon Act (the “Act”), entitled “Updating the Davis-Bacon and Related Acts Regulations.” However, the official final rule must be published in the Federal Register – likely by week’s end – before going into effect 60 days after publication.
DOL issued its notice of proposed rulemaking (“NPRM”) in March 2022 and received more than 40,000 comments from interested stakeholders. Evaluating and addressing those comments took the better part of a year, as DOL did not send the rule to the Office of Information and Regulatory Affairs (“OIRA”) for White House approval until December 16, 2022. After languishing for months, OIRA has now concluded its review, allowing DOL to move forward with its final rule.
Reprinted courtesy of
A. Scott Hecker, Seyfarth and
Ted North, Seyfarth
Mr. Hecker may be contacted at shecker@seyfarth.com
Mr. North may be contacted at enorth@seyfarth.com
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Surety Trends to Keep an Eye on in the Construction Industry
March 25, 2024 —
Oliver Craig - Construction ExecutiveReflecting on the dynamics of the 2023 construction and surety industries, it is evident that opportunities and challenges have emerged for contractors that will shape the landscape for the year ahead. Contractors can not only capitalize on these trends but protect the successful companies they have already built.
PROJECT OPPORTUNITIES
There has been a notable increase in public works opportunities, driven by increased government spending and the aging infrastructure in the United States. This trend is expected to continue in 2024 and beyond, with a notable portion of work coming in transportation- and public-utility-related infrastructure.
Due to increased spending, many contractors are reporting historically high backlogs—and that often includes the largest project their company has contracted in their history. While increased spending presents more opportunity, it’s critical contractors be even more diligent about new opportunities, giving additional consideration to the following:
Job Selection: New geographies, scope, project owners and/or subcontractor relationships commonly come with a learning curve. With the current state of the market, it’s not the ideal time to be learning costly lessons. Contractors should focus on having a proactive go/no-go strategy when reviewing potential projects to identify risks early and plan accordingly.
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Oliver Craig, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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