The typical government contract contains a laundry list of standard Federal Acquisition Regulation (FAR) or Defense Federal Regulation Acquisition Supplement (DFARS) clauses that outline the requirements for the construction or services to be provided. These clauses are either expressly stated, i.e. written out in full length in the contract, or incorporated by reference to a particular provision which the contractor must research for the specific language. But contractors beware: not all contracts are what they seem. Since 1963, courts have held that certain clauses are so integral to public procurements that they are deemed incorporated by operation of law, even if they are omitted from the contract. Continue Reading The Christian Doctrine: The Double-Secret Contract Clause
Potential Outcomes and Implications for the False Claims Act
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). 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. 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
Seyfarth Shaw partner Chuck Wall will serve on a panel entitled “The Contractor’s Role on the P3 Project Team” on Friday, March 22. The panel will be featured at a P3 Seminar sponsored by the Maryland Transportation Builders & Materials Association (MTBMA). Chuck will be joined by senior executives from the P3 development and contracting community, and the program will focus on informing contractors and other interested members about the basics of and potential opportunities involved with P3s.
The MTBMA P3 Seminar is at The Hotel at Arundel Preserve in Hanover, Maryland, from 7:30 a.m. Eastern to 12:30 p.m. Eastern. The MTBMA serves as a voice of the transportation, construction, and materials industries in Maryland, and it works to advocate for funding to meet Maryland’s transportation needs, to foster partnerships between government agencies and industry groups, and more.
For more information about the MTBMA P3 Seminar, click here.
Seyfarth has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year’s survey revealed that 69% of respondents are concerned about a cyberattack hitting their business in 2019, a significant increase compared to last year (46%).
Cybersecurity isn’t just for technology companies anymore. More and more, we are seeing other critical infrastructure participants becoming targets of cybersecurity attacks. Transportation, construction, and other real property-heavy industries are starting to catch the eye of sophisticated hacking teams – both criminal as well as nation-state sponsored groups.
There are two different threat models in the real estate market: the builder and the manager. Continue Reading Cyberattacks a Growing Concern for Commercial Real Estate Executives
Alison Ashford, Seyfarth partner and co-chair of the Seyfarth Construction Group, is moderating the “Risk/Reward?: Challenging Issues with Design/Construction Risk Allocation” panel at The Public-Private Partnership Conference & Expo, March 4-6 in Dallas, Texas.
The session is focused on the challenges to both the private and public sectors in valuing and allocating the front-end risk that lies in the design and construction of public facilities. The session will explore many key risk-related questions, including:
- Are public owners seeking to transfer more risk than in the past?
- Is competition driving successful allocations?
- How are sponsors, lenders and rating agencies impacting the allocation of design and construction risks?
The Public-Private Partnership Conference & Expo brings together industry leaders and leaders from states, localities, higher education institutions, and public agencies to discuss infrastructure challenges and innovations to solve the challenges.
For more information or to register, click here.
For any “prime” or general construction contract that is $500,000 or greater and all subcontracts thereunder (regardless of amount), Tennessee law requires that the owner (and by implication, any construction lender funding construction draws and any general contractor responsible for payment to subcontractors) deposit the amount of any retainage in a third-party, interest-bearing escrow account with a financial institution at the time the retainage is withheld. (TN Code § 66-34-104.) Continue Reading A Trap for the Unwary Owner, Lender, and General Contractor: Avoiding Criminal Liability and Civil Penalties in Connection with Tennessee Construction Projects
Since taking office in 2017, President Trump has made no secret of his “Buy American, Hire American” initiative. The President recently took another step to promote American industry by signing an Executive Order on January 31, 2019, (the “Order”) which instructs all agencies to “maximize the use of iron and aluminum as well as steel, cement, and other manufactured products produced in the United States in contracts, sub-contracts, purchase orders, or sub-awards.”
This recent Order comes on the heels of Executive Order No. 13788, signed on April 28, 2017, which required federal agencies to “scrupulously monitor, enforce, and comply with Buy American laws, to the extent they apply, and minimize the use of waivers, consistent with applicable law.” Executive Order 13788 also mandated federal agency action on Buy American laws at specified dates, as well as subsequent reporting on implementation of Buy American laws. In short, agencies were instructed to follow the law and report back. Continue Reading President Trump Issues Another Executive Order in Pursuit of Buy American Initiative
Seyfarth Shaw Construction partner Charles “Chuck” Wall and associate Michael Wagner recently authored a Construction Executive article on how to navigate risk allocation in public-private partnership (P3) agreements. Wall and Wagner focused on P3/concession agreements, design-build contracts, interface agreements, and more. Read “Navigating Risk Allocation in P3 Agreements” from Construction Executive here.
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?