Seyfarth’s Jay Houghton authored an article, “Navigating The Complexities Of Multi-State Contracting: How To Ensure Your Construction Contract Provisions Comply With State Law,” in the American Bar Association’s Spring issue of ‘Under Construction.’ Houghton discussed how various states regulate construction contracts, highlighting the differing impacts their laws have on private contract provisions.
“Ultimately, construction attorneys
As the Trump Administration’s tariffs are now in effect, owners, developers, and contractors managing pending construction projects face questions about who is ultimately responsible for impacts (both time and cost) resulting from those tariffs. Those negotiating contracts for upcoming projects face the predicament of allocating this future risk of material price increases and delays flowing
On Wednesday, December 11th, Seyfarth attorneys Steve Kmieciak and Sara Beiro Farabow will present the third installment of a series of micro-webinars focused on key legal perspectives and considerations for those operating in the hospitality industry. This session will address key considerations for adapting construction forms for international hospitality renovations, including whether to
Seyfarth Construction partner Jim Newland spoke about construction project cost escalation and the remedies during and after negotiations have commenced in the March 31st Federal Publications Seminars Podcast “Cost Escalation in Construction Contracts.”
In construction, cost escalation is not an uncommon thing as the price of raw building materials fluctuate often. More recently, prices have
Teddie Arnold and Stephanie Magnell spoke about government contractors protecting themselves from government fraud arguments in the February 25th Federal Publications Seminars Podcast “Avoiding Fraud in Federal Contract Claims.”
When contractors file claims against the government, they should make sure they are on solid ground to protect against government claims of fraud. Listen to the
Potential DamagesPotential damages arising from the failure to achieve statutory or contractual requirements concerning Leadership in Energy and Environmental Design (LEED) or other green building standards are far ranging and may include: fines, loss of financing or tax incentives, loss of tenants, decreased building value, decreased worker productivity, and increased utility costs.
Damages are often characterized as direct or consequential. Generally speaking, direct damages are foreseeable and naturally and ordinarily follow the breach, whereas consequential damages are unforeseeable to the breaching party and result from special circumstances. For example, if you were in a car accident, the damage to your car and medical expenses to treat whiplash would be direct damages. If you were on your way to a job interview and lost the job because you missed the interview due to the accident, the lost wages would likely be consequential damages. In our context, a fine arising from the failure to achieve a statutory LEED requirement, such as Silver certification, is probably a direct damage. However, the loss of revenue due to tenants who back out of leases because the building is not LEED certified may be a consequential damage.
Continue Reading Contract Drafting Tip: “LEED” Damages and the Waiver of Consequential Damages Clause
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
Owners and contractors trying to understand the full impact of COVID-19 on their projects are likely turning to delay[1] or force majeure provisions in their construction contracts to assess their rights or liabilities for continued performance. An event of force majeure is a circumstance that prevents someone from fulfilling a contract, and many articles recently have been written addressing the contours of typical force majeure clauses.
Continue Reading Temporary Impracticality or Frustration of Construction Contracts During the COVID-19 Pandemic
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?
Globally, many developers and contractors are scrambling to identify available contractual relief as the Coronavirus (COVID-19) disrupts cross-border supply chains. US businesses will recall a similar effort just eighteen months ago, when the Trump Administration announced increased tariffs on $300 billion of Chinese goods. That trade war prompted companies to scrutinize remedies and mitigate associated project risks by tapping alternative sources originating in other Asian countries and Canada. Once again, construction industry stakeholders should reexamine delay provisions in pending and future contracts to mitigate risks arising from project disruptions caused by COVID-19.
This article provides an overview of US case law interpreting the doctrine of force majeure in the context of disease-related delay claims. Drawing on that guidance, we then identify practical considerations for applying existing force majeure or related delay provisions and how they may be modified for future projects.
Continue Reading Managing Project Risk Associated with the Coronavirus Outbreak Through Force Majeure Provisions