Earlier this week, the Third Circuit held in Delaware River Joint Toll Bridge Commission v. Secretary Pennsylvania Department of Labor and Industry that Pennsylvania ceded its authority to enforce its building code and safety regulations against the operator of a transportation facility, the Delaware River Joint Toll Bridge Commission (“Commission”). The Commission is a bi-state entity created by an interstate compact between Pennsylvania and New Jersey (“Compact”) and approved by Congress under the Constitution’s Compact Clause.

Continue Reading Third Circuit Interprets Interstate Transportation-Related Compact as a Surrender of Compacting State’s Authority to Enforce its Building Regulations

On October 20, 2020, Seyfarth partner Sara Beiro Farabow returned to lecture (virtually this time) before graduate engineering students at the Polytechnic University of Milan, the #1 ranked engineering university in Italy. This session of the masters course, “Contract, Claim and Delay Management in Construction Works,” provided a comparative legal analysis of U.S. and international contracts and various arbitral institutions in the context of large-scale engineering and development projects.

Seyfarth partner James Newland co-authored “Preparing and Presenting Loss of Labor Productivity Claims: Analysis of the Methodologies with Two Exemplars”, published in the Summer 2020 edition of the ABA’s The Construction Lawyer.

It is beyond doubt that losses of labor productivity exist in the construction industry. When a party seeks to recover damages for loss of labor productivity, proving that such losses occur is not the challenge. The challenge is linking cause and effect sufficient for the trier of fact to understand the claim and make the appropriate determination, whether that trier of fact is a panel of a board of contract appeals, a judge on the Court of Federal Claims, a federal or state court judge, or an arbitrator.

Read the full article here.

Seyfarth Government Contracts partners Adam Lasky and Donald Featherstun are presenting programs at Navigating Federal Government Contracts Northwest 2020 on October 21 and 22. The conference—which is hosted by Associated General Contractors of Washington, Washington State Procurement Technical Assistance Center, Pacific Northwest Defense Coalition, and Oles Morrison Rinker & Baker LLP—is two days of informative virtual seminars that aim to help attendees learn to effectively navigate doing business with the federal government. Speakers at the conference will cover topics relevant to government contractors across all industries.

Donald Featherstun is presenting “Anatomy of a Dispute on a Government Contract” with Hon. Carol Park Conroy (Ret.), JAMS Arbitrator/Mediator and Former Judge on the Armed Services Board of Contract Appeals, Washington DC, on October 21. Adam Lasky is presenting “Keys to Drafting Successful Teaming Agreements & Subcontracts for Federal Projects … and Pitfalls to Avoid” on October 22.

Other topics include:

  • Introduction to the Brand New 8(a) and SBA Mentor-Protégé Program Final Rules, and Other Major Changes to SBA’s Government Contracting Programs
  • Compensation for COVID Delays and Impacts
  • Supply Chains Under Attack
  • Federal Contracting Year in Review

See the full agenda here and register for the seminar here.

Seyfarth partner David Blake authored “COVID-19 Language for New Construction Contracts,” published by GlobeSt.com on August 24, 2020. In the article, David addresses custom COVID-19 language for new construction contracts. The article is based on two construction contracts for which David successfully drafted and negotiated custom COVID-19 language. One is a private project and the other is a public project.

CARES Act

The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act (P.L. 116-136) was passed by Congress and signed into law by President Trump on March 27, 2020. The CARES Act provides over $2 trillion of economic relief in order to protect the American people from the public health and economic impacts of COVID-19. Throughout its more than 300 pages, the CARES Act implements many initiatives targeted at various industries and economic sectors that are designed to stimulate cash flow and provide security for those at-risk. Continue Reading Money for Nothing—Except Potential False Claims Act Liability

On August 26, 2020, James Newland, AIA, partner in Seyfarth’s Construction group, along with Andrew McCoy, Ph.D., Professor and Associate Director of the Myers-Lawson School of Construction at Virginia Tech, will present the a free Lunch and Learn program: Construction Risk Management, Changes, Delays, Inefficiency, and Claims.

The program is free of charge and CLE is available in most states and serves as a learning opportunity and an introduction to the Myers Lawson Professional Education programs.

Register here for the program: Webinar Registration

Topics covered during the program will include:

  • Basic risk assignment issues among the owner, the general contractor, and the subcontractor(s).
  • The mechanism for recognizing and implementing changes, delays, and claims under public and private contracts .
  • The changes, delay-related, and disputes clauses and how they affect the interests of the owner, general contractor, and subcontractors.
  • Different notice requirements for express and constructive changes, limitations on recovery under the Federal Acquisition Regulation, and private forms such as the AIA and ConsensusDocs.
  • The flow-through aspects of notice requirements and documents used as alternatives to formal correspondence, such as meeting minutes, schedules, and monthly update narratives.
  • The differences and uses of industry-recognized methods, such as the Time Impact Analyses, Impacted As-Planned, and Collapsed As-Built techniques as they are used to quantify delay. Additionally, the concepts of concurrency and pacing as well as the contractor’s rights and the owner’s obligations in the event of concurrent delay.
  • Types of No Damages for Delay Clauses, general exceptions to application of the clauses, as well as the potential application of the Severin doctrine on a pass-through delay claim.
  • The impacts of COVID-19, including increased PPE, social distancing, and jobsite disinfection.

The 2020 edition of The Legal 500 United States recommends Seyfarth Shaw’s Construction group as one of the best in the country. Nationally, our Construction practice earned Top Tier, and our Government Contracts practice earned Tier 3.

Based on feedback from corporate counsel, Seyfarth partner Bennett Greenberg was ranked in the editorial’s “Hall of Fame,” partner Alison Ashford was ranked in the editorial’s “Next Generation Lawyer,” and partners Michael McKeeman, David Blake, and Charles Wall were also recommended in the editorial for Construction. For Government Contracts, associate Edward Arnold was ranked in the editorial’s “Rising Star,” and partner Donald Featherstun, counsel Joseph Dyer, and associate Anthony LaPlaca were also recommended in the editorial.

The Legal 500 United States is an independent guide providing comprehensive coverage on legal services and is widely referenced for its definitive judgment of law firm capabilities. The Legal 500 United States recognizes and rewards the best in-house and private practice teams and individuals over the past 12 months. The awards are given to the elite legal practitioners, based on comprehensive research into the US legal market.

Introduction

Those entering into new construction contracts should include custom language addressing the parties’ respective rights and responsibilities related to COVID-19. Many articles and webinars have focused on how traditional contract clauses in existing contracts may respond to COVID-19 issues. The fit is not always clear. Some guesswork is involved and creativity is called upon as square pegs are coaxed into round holes. While there is a need to perform that retrospective analysis to assess how COVID-19 issues will play out under existing contracts, there is no need to propagate uncertainty in new contracts. Indeed, such uncertainty can cause parties to shy away from new contracts or include significant contingencies, neither of which supports an industry trying to recover from the pandemic.

This article addresses custom COVID-19 language for new construction contracts. The principles discussed can be applied to any construction contract. This article is based on two construction contracts for which I successfully drafted and negotiated custom COVID-19 language. One is a private project and the other is a public project. Some of the views expressed during those negotiations are weaved into the discussion to provide both sides’ perspective. Continue Reading COVID-19 Language for New Construction Contracts: A Practical Approach

Force Majeure, Commercial Impracticability, and Frustration of Purpose

The outbreak of COVID-19 has been one of the most disruptive events to the global economy in recent memory. Businesses across every sector of the economy are scrambling to determine the legal repercussions of government travel restrictions, labor shortages, supply chain interruptions, financing impacts, and market price fluctuations triggered by the pandemic. How can I possibly be expected to perform my maintenance contract if the government orders me to stay home? Am I still liable for liquidated damages if I don’t meet the contractual milestones in my construction schedule? Do I still have to pay my purchase orders for kitchen supplies and foodstuffs if the government has shut down all restaurants indefinitely? These, and other questions like it, loom large in the wake of the current pandemic.

With this survey, we attempt to shed some light on the answers to these questions and educate readers about the history and status of what we call “legal excusability” in the United States, the District of Columbia, and the US Territories. When we say “legal excusability,” we specifically refer to situations where intervening events delay or outright prevent one party from performing its obligations under a contract. In American jurisprudence, the law of excusability is derived from three authorities—the language of contracts, the common law, and legislative provisions excusing performance. Attorneys from Seyfarth Shaw’s commercial litigation, construction, and government contracts practice groups have undertaken a comprehensive review of these concepts in every American jurisdiction, analyzed what we found, and summarized our findings in the pages below. While we certainly don’t claim to have all the answers to the difficult questions that businesses face during these trying times, our goal is to provide the legal building blocks to aid contractors that may have a viable claim of legal excusability. We hope you find it informative.

Request a copy of the 50 State Survey of Legal Excusability: Force Majeure, Commercial Impracticability, and Frustration of Purpose