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,”

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

While the global economy grinds to a halt over spread of the novel coronavirus (COVID-19) and people disband amidst calls for “social distancing,” these are uncertain times to say the least. Stay safe out there, we will get through this. While the health and welfare of our loved ones and the general public becomes the primary focus, federal contractors and subcontractors face a secondary and yet critical concern—how to address the impacts from COVID-19, which include labor disruptions, supply chain shortages, facility closures, remote work environments and government-mandated restrictions that make it difficult, if not impossible, to move programs and projects forward.

A recent decision by the Civilian Board of Contract Appeals (“CBCA”) related to an epidemic makes clear that whether or not a contractor will prevail in recovering costs associated with COVID-19 is going to be dependent on the specific contract provisions the parties have negotiated in their contracts.
Continue Reading Civilian Board of Contract Appeals Decision Provides Guidance to Contractors Seeking to Recover Additional Costs Due to COVID-19

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The impact of COVID-19, the ensuing delays and changes in the work, protecting the contractor’s cash flow, and avoiding a default termination are now top of mind for every construction contractor. This article reviews delay principles, changes in the work, default and convenience terminations, illness of key personnel, stop work orders, and other considerations related to claims and defenses arising from COVID-19. Contractors must be alert to the practical aspects of entitlement and recovery under the clauses that come into play.
Continue Reading COVID-19’s Impact on the Government Construction Contractor’s Performance: Recognizing and Implementing the Appropriate Claims and Defenses

With the exponential spread of COVID-19, owners, contractors, and design professionals are recognizing the substantial impact this pandemic will have on the construction industry. Several states issued shelter-in-place orders, resulting in the suspension of some construction work.[1] In some states, this has resulted in work stoppages on some of our nation’s largest infrastructure projects. The financial impact of these work stoppages will be significant. As a result, parties to construction agreements have looked to their force majeure clauses for guidance on how these issues should be addressed.
Continue Reading Coronavirus Pandemic: My Construction Agreement Has a Force Majeure Clause, So Now What?

On March 13, 2020, President Trump declared a national emergency in response to the coronavirus (COVID-19) outbreak. Such a declaration has significant implications on the contracting community navigating the federal procurement process. While contractors are undoubtedly trying to manage existing contracts in light of labor and supply chain disruptions, many will be looking at the procurement landscape for business opportunities. Federal procurement law contains a number of provisions that authorize streamlined procurement procedures for major disasters or national emergencies. This article addresses the procedures that federal agencies may employ during a national emergency such as COVID-19. Because these procedures do not often look like typical procurement procedures, contractors should be mindful of the rules to better position themselves as they seek out opportunities.
Continue Reading Federal Procurement Procedures During a National Emergency

Federal contractors already subject to a myriad of reporting requirements should be prepared for yet another. Effective December 23, 2019, a new Federal Acquisition Regulation (“FAR”) provision entitled “Reporting of Nonconforming Items to the Government Industry Data Exchange Program” requires federal contractors and subcontractors to report to the Government-Industry Data Exchange Program (“GIDEP”) certain counterfeit or suspect counterfeit parts and certain major or critical nonconformances. The new FAR provision (48 C.F.R. § 46.317) and clause (FAR 52.246-26) applies to both civilian and defense contracts over the simplified acquisition threshold, currently $150,000.

Where did this rule come from?


Continue Reading New Federal Contract Reporting Requirements Aimed at Protecting Supply Chains Through Detection of Counterfeit Parts

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

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