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
For projects that involve excavation or foundation work, even the most diligent pre-bid site survey may not fully inform the contractor of what conditions to expect below the surface. The risks of encountering unforeseen subsurface conditions are so high that, rather than encouraging bidders to include large contingencies in their proposals, construction lawyers have drafted a special clause—the Differing Site Conditions clause. The purpose of the Differing Site Conditions clause is to allocate the risk for conflicting, inaccurate, or incomplete pre-bid information furnished by the project owner. While the Differing Site Conditions Clause should, in theory, be a pile driver’s closest ally, recent cases interpreting this clause highlight some of the challenges to prosecuting claims under this provision.
Continue Reading What Lies Beneath (And Who Pays for It?): Common Issues Arising Under the Differing Site Conditions Clause
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
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
Developments in virtual reality (VR) and augmented reality (AR) have undoubtedly streamlined traditional design and engineering methods. With VR technology, users are able to fully imagine themselves in a realistic replication of a physical space (think head-mount displays). AR technology supplements what can be imagined in the actual world by adding computer generated images (think Pokémon Go). By utilizing software and devices to map physical space in virtual environments, VR and AR technology allows parties to a construction contract to mitigate the risk of design defects and the inevitable claims and litigation that follow them. VR and AR sectors are predicted to generate $150 billion by 2020.[1]
Continue Reading Legal Issues to Consider for Projects that Utilize Virtual and Augmented Reality
On March 19, 2019, Seyfarth’s Anthony LaPlaca and Teddie Arnold witnessed oral argument at the U.S. Supreme Court in a government contracts case that has major implications for future enforcement of the federal False Claims Act (FCA).[1] In Cochise Consultancy, the Court is asked to interpret the FCA’s statutes of limitations, which govern the time frame in which the government may initiate a civil false claim suit against a contractor.[2] While the Court will likely consider the case for several months before it issues any decision, the questions posed at oral argument seem to hint at how it will ultimately decide the issue.
Continue Reading The Supreme Court Holds Argument in Cochise Consultancy
The indemnity clause is one of the most scrutinized, negotiated, and litigated terms of any construction contract. The indemnity clause is a risk-shifting provision that requires the contractor to defend, reimburse, and “hold harmless” the owner and architect from claims and liability “arising out of” the contractor’s work. The indemnity clause is focused on bodily injury and property damage suffered by third parties seeking recompense against the owner. Indemnity clauses share the same core purpose, but can have varying reach, depending on the language used.
Continue Reading What Does the Indemnity Clause Cover and When Does the Claim Accrue?
The Contract Disputes Act presents government contractors with two venue options for appealing an adverse final decision.[1] Within one year of receiving a denial of its claim, the contractor may appeal to the United States Court of Federal Claims (COFC) or, in the alternative, the contractor has ninety days to appeal to an administrative law judge in the appropriate agency board of contract appeals. For defense contractors, that means the Armed Services Board of Contract Appeals; and with a few exceptions, non-defense contractors may appeal to the Civilian Board of Contract Appeals (CBCA).[2]
Continue Reading Hof Construction: The CBCA Decides How it Will Address Conflicting Decisions of Predecessor Agency