Executive Order 14005

Not even one week into the Biden Administration’s tenure, Buy American rules are yet again taking center stage as a fundamental policy objective. On January 25, 2021, President Biden issued Executive Order 14005 entitled “Ensuring the Future is Made in All of America by All of America’s Workers,” which sets forth the new Administration’s policy of utilizing the federal procurement process to maximize the use of goods, products, and materials that are US-origin. Executive Order 14005 takes aim at overhauling “Made in America Laws,” which it defines broadly as inclusive of all statutes, regulations, rules, and Executive Orders relating to federal financial assistance awards or federal procurement—known interchangeably as Buy America or Buy American rules—which provide a preference for purchase of domestic goods and materials that are US-origin. But unlike Executive Order 13788 issued by the Trump Administration making changes to Buy America rules, President Biden’s Executive Order 14005 does not make any immediate changes to those rules. Rather, it calls for a review of existing laws and implementing rules. That review, however, and what proposed changes in existing laws comes out of that review, could be significant. Continue Reading Biden Administration Issues Executive Order 14005 Aimed at Strengthening Made in America Laws

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