Lamson, Dugan and Murray, LLP, Attorneys at Law

Why I Love Being Your Construction Attorney

Posted in Construction Law

I love working as a construction attorney because I get to work with clients who love what they do. As a construction attorney, I have the privilege of working with individuals who have taken their passion, created a business, and are striving for success. These individuals, that love the trade, love the work, but hate the legal red tape, are the reason I love doing what I do.

I was reminded of how lucky I am to be working with such great individuals in a recent article in the latest edition of Associated Builders and Contractors Construction Executive. This article highlighted Matthew Ramonoff, an electrician who grew up in the business and has grown the business to $65 million in sales in 2014 and a workforce of 400 employee. As noted in the article, this is a tremendous jump from the dozen or so craft professionals he started working with in 1993.

Although it not mentioned in the article, I am sure that Mr. Romanoff has an attorney or two who have provided him with counsel over the years that helped his company grow. Whether it was advice on how to deal with a problem employee, union organization, contract drafting, to succession planning, I have no doubt that there are some construction attorneys who had the pleasure of working with a client who was passionate about his trade and had the opportunity to watch a client grow exponentially over the years.

For me, nothing brings me more joy than helping a client work through the growing pains of becoming a successful company, whatever the trade. It is these hardworking individuals, like Mr. Romanoff, that make it a pleasure for me to come to work and help construction companies succeed and grow.  Thank you.

 

Construction Law Seminar–Free

Posted in Construction Law

SAVE THE DATE

Tuesday, March 10, 2015

 Best Practices in Construction Seminar

La Vista Conference Center

12520 Westport Parkway, La Vista, Nebraska‎

Goldleaf Surety is sponsoring a seminar on Construction Best Practices.  I will be presenting on the following topics:

Lien Claims in Nebraska and Iowa

  • Filing a lien may prove to be one of your best protections to get paid. But, doing it right is crucial to getting paid. During this presentation, we will discuss the differences between filing liens in Nebraska and Iowa, and how to make sure you get it right in both states. A few of the topics we will discuss are:
    • Who Can File?
    • When Do I File a Lien?
    • Where Do I File a Lien?
    • What Should the Lien Contain?
    • What Notices Do I Have to Provide?

Effective Project Documentation

  • How you document a project can make the difference between a successful claim and a waste of time. During this presentation, we will discuss practices that you can implement to better position your company to pursue claims. Our discussion will include:
    • Contract Summary Sheets
    • Contract Summary Sheets
    • Best Practices for Project Files
    • Supporting your Claim

Beware of These Construction Clauses

  • Construction contracts are full of dangerous provisions, which if enforced, could cause significant problems to the project and your operations. During this presentation, we will discuss the most hotly contested contract clauses and how you can better prepare your company to address these provisions. A few of the provisions we will discuss are:
    • Notice and Claim Procedures
    • Claim Waivers and Releases w/ Pay Applications
    • No Damage for Delay
    • Consequential Damages
    • Waiver
    • No Limit Liquidated Damages
    • Pay-if-Paid
    • Default for Convenience
    • Indemnification

There is no charge for the seminar.  We hope to see you there.

The Future Looks Bright for Construction in 2015

Posted in Construction Economy

Associated Builders and Contractors’ Construction Executive has painted a rosy outlook
Craig Martin, Construction Attorney, Lamson Dugan & Murray, LLP
for the upcoming year. ABC’s Chief Economist predicts a 7.4 percent increase in total nonresidential spending for 2015. This is great news for a construction industry that has climbing out of the recession through fits and starts over the last several months.

Perhaps the most telling statistic was ABC’s Construction Backlog Indicator, which reached an all time high in the third quarter of 2014. The back-log indicator reflects the amount of work that will be performed by commercial and industrial contractors in the months ahead. ABC’s Construction Backlog Indicator showed substantial growth in the northeast of 8.7% and middle states of 7.9%. The west and south lagged at 1.1% and 2.2% respectively. These figures also correspond to larger backlogs for construction companies. In the West and Northeast, the back log increased by two months.

ABC’s economist anticipates that growth will be spread over several industries with projects relating to energy leading the way. Other strong sectors expected in 2015 include lodging, manufacturing and professional services, such as office space.

Perhaps typical of an economist’s conservative nature, even with these remarkable projections, ABC’s economist concludes that:

the next year should be a decent one for the U.S. economy.

Here to all of us having a “decent” 2015 with more than 7% growth.

 

Nebraska’s Prompt Pay Act for 2015

Posted in Prompt Pay Act

Continuing with our theme of Ready for 2015, this blog serves as a reminder of your rightsCraig Martin, Construction Attorney, Lamson Dugan & Murray, LLP and obligations under Nebraska’s Prompt Pay Act, Neb. Rev. Stat. §§ 45-1201-1211.

As you may recall, Nebraska’s legislature amended the Prompt Pay Act in 2014. The most significant changes are highlighted below.

Attorney’s Fees May be Recovered. The most significant change in the Prompt Pay Act allows contractors to recover damages if they pursue a claim under the Act. And, this is not reciprocal in that the defendant may not recover fees.

Limit on Retainage. Retainage may not exceed 10%. And, when the work is 50% complete, no more than 5% of future progress payments may be held as retainage.

Release of Retainage. Owners are now required to release retainage within 45 days after the project is substantially complete. Upstream contractors must pay subcontractors within 10 days of receiving retainage payment from the owner.

Interest. Contractors can demand interest on late payments at the rate of 1% per month. Interest begins to accrue on the date the payment is due. But, interest is only recoverable if the entity charged interest, ie the owner or upstream contractor, has been notified of the provisions of the Prompt Pay Act.

Application. The Act does not apply to residential construction.

Take Away: Nebraska’s updated Prompt Pay Act greatly improves your opportunity to collect amounts owed on construction projects.

 

Maryland Contractor Documents its Illegal Deal and Pays $2.15 Million to Settle Fraud Claims

Posted in Criminal Conduct, Government Contracting

Why would a contractor create a contract for illegal work?  I really don’t know.

Late last year, the FBI announced that a Maryland contractor, Forrester Construction illegalCompany, agreed to pay $2.15 million dollars to resolve a criminal investigation into alleged fraud in connection with the use of disadvantaged business enterprises involving more than $145 million of District of Columbia government contracts.

Under this scheme, Forrester entered into joint venture agreements with a minority owned businesses under which the minority owned business acted as a 51% owner and was entitled to 51% of the profit. After the project was awarded to the joint venture, Forrester and the minority owned business entered into side agreements that allowed Forrester to take control of the project and gave Forrester a greater portion of the profits.

I wonder why Forrester and the minority owned business exchanged agreements about the change in control and entitlement to profit. Was it really necessary to document their illegal deal? Did either party to the agreements think that these documents could be used to enforce their illegal side deal?

I also find it interesting that the plea agreement requires Forrester to implement internal reforms to prevent this type of situation from happening again. So, it appears that Forrester is not debarred from District of Columbia work, but must instead make sure it doesn’t commit fraud on government contracts again.

Authored by Craig Martin, Lamson, Dugan & Murray, LLP.

Are You Ready For 2015?

Posted in Best Practices

Last month’s Engineering News Record Magazine contained an editorial noting the worst projects of the year. Are you prepared if you have a bad project?

Craig Martin, Construction Attorney, Lamson Dugan & Murray LLP

As the editors aptly pointed out:

By their nature, bad projects disappoint owners, incite hostility among team members, slip months and years past scheduled completions and drain finances.

ENR pointed noted a few projects from 2014 that did not go well.  They included:

Wayne County Jail, Detroit, where county employees failed to convey the true costs of the project.

Veterans’ Hospital, Aurora, Colorado, where the VA breached its agreement with Kiewit-Turner by failing to provide plans for a project that could be built within budget.

State Route 99 Tunneling, Seattle, where the tunnel-boring machine broke down within days of the start and has yet to be fixed.

Bad projects clearly happen. But, are you prepared if a project does go off the rails?

  • Are your contracts in place to provide you with the maximum protection?
  • Have you complied with the notification requirements contained in the contract?
  • Have you obtained the most effective insurance coverage?

The beginning of the year is a great time to review your policies and procedures. Take some time this year to look at your contracts, subcontracts, record keeping and other procedures. You may find it’s time to update them.

Authored by Craig MartinLamson, Dugan & Murray, LLP.

Happy Holidays and My Gift to You

Posted in Insurance coverage

Craig Martin, Construction Law, Lamson Dugan & Murray, LLPI love this time of year.  Of course, work efficiency is down and that which does get done is hard fought, but I love the season of hope and joy.

I hope that you and yours have a wonderful holiday season.

I also wanted to get you something  I thought long and hard about what to get you. Reflecting on the year, I realized that insurance coverage was a popular topic of courts around the country. So, I thought, what a better gift than a breakdown of Nebraska and Iowa coverage opinions discussing “What is a construction defect?”  Yes, I know, very thoughtful.

Enjoy.  Construction_Defect_CGL_Memo

Authored by Craig MartinLamson, Dugan & Murray, LLP.

Quickie Elections–NLRB Issues Final Rule

Posted in NLRB

On December 12, 2014, the NLRB announced that its final rules on the “Quickie” Electionnlrb-logo will be published on December 15, 2014, and will take effect April 15, 2015.  The most significant impact of the new rules will be to shorten the time from election for union representation from approximately 40 days to 10 to 14 days.

The NLRB’s press release stated that the rules are aimed at streamlining and speeding up union-organizing elections.  A few significant aspects of the final rule include:

  • Employers must provide the names and contact information about employees immediately upon the filing of a petition;
  • Employers must voice objections to the petition within a few days, or face the threat of waiver;
  • Employers may no longer seek pre-election review of Regional Office decisions;
  • Election petitions may be electronically filed.

The NLRB’s Fact Sheet contains additional information about the final election rules.

Take Away: The NLRB’s new election rules will have a significant impact on how employers respond to union organizing attempts.  Most importantly, employer responses will have to be quick.

Authored by Craig MartinLamson, Dugan & Murray, LLP.

Kiewit-Turner Stops Work on VA Project—Now What?

Posted in Breach of Contract, Government Contracting
Craig Martin, Construction Attorney, Lamson Dugan & Murray, LLP

Stop!

The Kiewit-Turner joint venture created to build the VA’s hospital near Denver stopped work on December 10 after the Civilian Board of Contract Appeals ruled that the VA breached the contract. Kiewit-Turner claims that the VA owes it over $100 million on the project. And, given the appeals board’s recent ruling entirely against the VA, the claim may get some traction.

This project has been plagued with problems from the beginning. One strange aspect of the project is the VA’s apparent unwillingness to incorporate value engineering or require the architects to redesign the project to fit within the budget. The latest budget was $582M, while the latest projections show that the project will cost more than $1 billion to complete.

In addition to serious budget overruns, the project is substantially delayed. The project was originally intended to open in May, 2015. That date has been pushed back to 2017, and given the recent shut-down, that date will likely be pushed back even later.

Kiewit-Turner must be applauded for the way it handled this situation. Instead of simply walking off the job, Kiewit-Turner continued to work, under protest, and asked the contracting officer to determine that the VA breached the contract by failing to provide a design that could be built within budget. The contracting officer ruled that the VA had not breached the contract and directed Kiewit-Turner to continue with the work.

While continuing the work, Kiewit-Turner appealed to Civilian Board of Contract Appeals. After an 8 day hearing, the appellate court ruled in Kiewit-Turner’s favor on all counts, finding that the VA had breached the contract and Kiewit-Turner was entitled to stop work on the project.

Of course, this is just the first step in what will likely be a very long process to figure out how the work will continue and how much Kiewit-Turner must be paid for the work it performed.

Authored by Craig MartinLamson, Dugan & Murray, LLP.

OSHA’s New Severe Injury and Fatality Reporting Requirements, Are You Ready?

Posted in OSHA, Uncategorized

Last September, OSHA announced its final rules for reporting severe injuries and fatalities. The new rules take effect on January 1, 2015. Are you ready?

Craig Martin, Construction Attorney, Lamson Dugan & Murray, LLP

OSHA

The New Rule Requirements

  • OSHA’s severe injury and fatality reporting requirements apply to all employers covered by OSHA, not just those with 10 or more employees.
  • All employee work-related fatalities must be reported within 8 hours of the death. The previous rule required reporting only when 3 or more employees suffered a work related fatality.
  • Employers must report when an employee is hospitalized, suffers an amputation or loses an eye in a work related injury. These reports must be made within 24 hours of the incident.
  • Reports may be made by telephone to the OSHA Area Office, to the OSHA toll-free number or electronic submission on OSHA’s website.

The new rules will require more immediate reporting, which will also allow for more immediate investigation.  Now is a good time to review your OSHA policies and programs to make sure they are up to date.

Authored by Craig Martin, Lamson Dugan and Murray.