On January 28, 2020, Seyfarth Partner Mark Johnson will be presenting a Lorman webinar titled “Understanding ConsensusDocs 755 and 756.”  ConsensusDocs recently published the new Standard Master Subcontract Agreement Between Constructor and Subcontractor (CD 755) and the Standard Project Work Order (CD 756). Mark will discuss the ConsensusDocs approach and philosophy to its construction forms compared to other industry forms, explore the key revisions made to the existing CD 750 Standard Subcontract Form in order to transform it into the CD 755 and 756 forms.  Mark will  also explore other key provisions and risk allocations contained in the 755 form, from both the General Contractor and Subcontractor perspectives.

For more information or to register, visit the Lorman website at https://www.lorman.com/training/construction/understanding-consensusdocs-755-and-756.

Foreign states and their agencies engage in a variety of construction projects in the United States, all of which are subject to the Foreign Sovereign Immunities Act (“FSA”).[1] This article explains some of the key aspects of the FSA that foreign governments and contractors should consider when engaging in those projects.

Foreign States and Their Agencies

Foreign states are treated differently from their agencies for certain aspects of the FSA. In deciding whether an entity is the foreign state itself or an agency of it, courts typically evaluate the entity’s primary purpose. If governmental, the entity is considered the foreign state itself, and if commercial, the entity is considered an agency. One line of cases holds if the entity is an integral part of a foreign state’s political structure, it is considered the foreign state itself. Continue Reading Foreign Governments Contracting for Construction in the United States: Navigating the Foreign Sovereign Immunities Act

Airports Council International is the only global trade representative of the world’s airports, and the Airports Council International represents airports interests with governments and international organizations such as ICAO, develops standards, policies and recommended practices for airports, and provides information and training opportunities to raise standards around the world. The team is led by Washington, DC attorneys James Newland, Randel Johnson, Christa Dommers, Leon Rodriguez, and Alex Passantino. We are looking forward to continuing to serve as cross-disciplinary counsel to the world’s airports owners, operators, and developers.

While China commands the media spotlight in the global war on trade, new trade battles are being waged south of the equator. On Monday December 2, 2019, President Trump announced that he would reinstate tariffs on aluminum and steel imports from Argentina and Brazil amid accusations that those countries have been engaging in a “massive devaluation of their currencies.” The President’s announcement, which came via Twitter, also urged the Federal Reserve to take measures to counter foreign currency devaluation, which negatively impacts US manufacturers and farmers ability to fairly export their goods.

Details of the new mandate are unclear as the White House has yet to release an order explaining the changes. Although the US started imposing global tariffs of 25% on steel and 10% on aluminum in 2018 on countries such as China, certain countries, including Brazil and Argentina, were quick to negotiate exemptions from the tariffs in the form of duty-free quotas. The President’s mandate comes on the heels of softening economies and weaker currencies in Brazil and Argentina, which has the effect of making farm goods in those countries cheaper than US farm production. Continue Reading President Trump to Restore Tariffs on Aluminum and Steel Imports from Brazil and Argentina

On October 23–24, 2019, Seyfarth attorneys Teddie Arnold, Joe Dyer, and Anthony LaPlaca will be presenting the Seyfarth Shaw Government Contracts Handbook at a 2-day seminar in Sterling, Virginia.  This presentation will educate attendees on various components of federal government contracting, including Congressional oversight initiatives, procurement and formation issues, strategies for self-governance and compliance, claims and appeals, and other hot-button issues.

The seminar will take place between 9:00 a.m. and 4:00 p.m. at the Executive Conference Training Center, 22685 Holiday Park Drive, Suite 60, Sterling, Virginia 20166.  Anyone interested in attending this seminar may register at https://www.fedpubseminars.com/DC-Government-Contracts-Week/Government-Contract-Compliance/

On September 18, 2019, California Governor Gavin Newsom signed California’s Assembly Bill 5 (“AB 5”). This landmark bill takes effect on January 1, 2020, and will require gig economy workers to be reclassified as employees instead of independent contractors. As it relates to the construction industry, AB 5 provides that the “relationship between a contractor and an individual performing work pursuant to a subcontract in the construction industry” shall be governed by pre-existing law, provided that the contractor satisfies seven new criteria set forth in AB 5.[1]  AB 5 also includes an exception for certain construction trucking services performed prior to January 1, 2022,[2]  as well as active California licensed architects and engineers.[3] Continue Reading Update on California Assembly Bill 5 and its Potential Impact on Construction Contractors and Subcontractors

Introduction 

Congress enacted the Contract Disputes Act of 1978 (CDA)[1] to “provide a fair, balanced, and comprehensive statutory system of legal and administrative remedies in resolving government contract claims.”[2]  But for many involved in public construction projects, the CDA does not always feel like a fair or comprehensive scheme for resolving disputes caused by the acts or omissions of the Government.  In particular, subcontractors and suppliers are barred by principles of sovereign immunity from suing procuring agencies directly where Government representatives impact, delay, or increase the cost of the work.[3]  Because subcontractors and suppliers lack privity with the agency, their recourse for Government interference is limited to “pass-through” or “sponsored” claims, which hinge on the general contractor’s willingness to take up the torch on their behalf.[4]  Continue Reading On the Effective Use of Liquidating Agreements

The Illinois Contractor Prompt Payment Act, 815 ILCS 603/1, et seq. (the “Act”) was first enacted in 2007 and designed to safeguard contractors and subcontractors on private projects by providing a mechanism to expedite payments for work performed. The Act applies to all private construction projects in Illinois, except those involving single family residences or multiple family residences with twelve or fewer units in a single building. With the Act, Illinois joined a growing number of states that had enacted similar legislation.

On August 20, 2019, Illinois amended the Act and again joined a growing number of states that are expanding their protections for contractors, this time by restricting the amount of retainage that may be withheld on a construction project. The amendment, codified at 815 ILCS 603/20, imposes a ten percent (10%) cap on the amount of retainage that may be withheld and reduces that cap to five percent (5%) once the project is fifty percent (50%) complete. Specifically, the Act provides: Continue Reading Illinois Expands Protections Under the Contractor Prompt Payment Act by Imposing New Restrictions on Retainage

Seyfarth Construction Associate Michael Wagner presented the “Construction Site Data Disclaimers: Who Really Carries the Risk?” webinar for Lorman on August 26, 2019, and an on-demand version of the webinar is available. This program presents the owner and the contractor’s perspectives on the risk of differing or concealed site conditions and the role disclaimers of liability for site data plays in managing the risk. Learn the use and enforceability of such disclaimer clauses and the contract risk management techniques owners and contractors use to mitigate downside risk.

For more information or to view the on-demand version of this program, visit the Lorman website.

President Trump continues to push forward with his “Buy American, Hire American” initiative with the issuance of his third Executive Order No. 13881 (the “Order”) on July 15, 2019, entitled “Maximizing Use of American-Made Goods, Products, and Materials.” This Order attempts to strengthen the standards that federal agencies must follow under the Buy American Act (“BAA”) by raising the threshold for domestic purchasing requirements. Continue Reading President Trump Issues Third Installment of Buy American Initiative