The Final Frontier Opens Up New Business Opportunities for Private Contractors
August 26, 2024 —
Jessica S. Allain - ConsensusDocsEarlier this year, the U.S. Department of Defense (“DOD”) issued its Commercial Space Integration Strategy. While arguably still in the early stages of implementation, this policy shows a significant shift in creating new opportunities for contractors to work with and sell commercial solutions to DOD. This creates big opportunities for the construction industry. DOD’s current construction budget is over $2.9 billion,[1] and seeking to increase funding and projects with the private sector also increases the need for construction of facilities to house those partnerships. For contractors who may be able to take advantage of these opportunities and the facilities that support them, it is worth having an understanding of what a prospective contractor would need to do to participate and what pitfalls may be attached to these programs.
In an effort to call out the elephant in the room, the timing of these policies coming out in the year before an election should not be ignored. While grounded in the 2022 National Defense Strategy and other established departmental policies, a change in administration could create change in how these prospective opportunities are handled.
Read the full story...Reprinted courtesy of
Jessica S. Allain, Jones WalkerMs. Allain may be contacted at
jallain@joneswalker.com
Utilities’ Extreme Plan to Stop Wildfires: Shut Off the Power
October 28, 2024 —
Mark Chediak - BloombergA growing number of utilities are resorting to an extreme measure to prevent their equipment from sparking catastrophic wildfires: turning off the power.
Electric companies serving about 24 million homes and businesses across the fire-prone US West now have plans to preemptively cut electricity during dangerous fire conditions, according to an analysis of
data compiled by researchers at Stanford University. The proactive blackouts, however, run counter to the power companies’ main mission — which is to keep the lights on. And that’s angering customers and officials.
Lawsuits — and the
billions of dollars of damage claims that come with them — are an
increasing concern among utilities, said Michael Wara, who leads the Climate and Energy Policy Program at Stanford University.
Read the full story...Reprinted courtesy of
Mark Chediak, Bloomberg
You Cannot Always Contract Your Way Out of a Problem (The Case for Dispute Resolution in Mega and Large Complex Construction Projects)
September 16, 2024 —
Lisa D. Love - The Dispute ResolverMost experienced commercial transaction and construction attorneys strive to negotiate a concisely written and well-drafted contract that addresses all scenarios and issues that creative and highly contemplative professionals can conjure. Although contracts are extremely important in construction projects, “you can’t generally contract your way out of a problem,” states Michael Loulakis, a founder of Capital Project Strategies, LLC and a nationally recognized expert on project delivery systems in complex public sector design-build projects and public-private partnership programs. Loulakis adds, “the contract certainly matters. But particularly when the losses are big, litigators prosecuting the contractors often find effective ways to argue that facts and circumstances trump the contract.” However, “the difference between the best construction projects and the worst construction projects is not the written words of the contracts but how the parties have committed to engage collaboratively and with trust to complete the project,” notes Robynn Thaxton, an attorney and consultant with Thaxton Parkinson PLLC and Progressive Design-Build Consulting, LLC and one of the leading experts in construction law and alternative procurement on a national basis.[i]
In large, complex construction projects, the need for parties to collaboratively resolve disputes is highlighted by the judicial acceptance of the “Doctrine of the Contextual Contract”[ii] to interpret construction contracts. “As construction’s increasing technological and managerial complexity came to be recognized, some common law courts began turning away from strict interpretation of language within the four corners of a contract and moving toward recognizing in the enforcement of contracts the construction industry’s own experience, customs, practices and implied conditions and duties and the factual context underlying the contract. Courts [began the journey] along the road from ‘text’ to ‘context.’”[iii] Thus, the precise wording of the contract has become less important and industry practices and other conditions provide insight for resolving disputes. Consequently, despite the specific language of any construction contract and the clear allocation of responsibilities and risks, early dispute evaluation and resolution are critical to a successful project.
Read the full story...Reprinted courtesy of
Lisa D. Love, JAMS
More Musings on Why I Mediate
November 18, 2024 —
Christopher G. Hill - Construction Law MusingsWhew! I’m back. And yes, I know it’s been a while (it has been a busy year, both personally and professionally). Hopefully, this will be the first of at least a few more consistent posts here at Construction Law Musings. Now, on with the post:
Over the last few weeks, I’ve had a surge in mediation, both in my capacity as a mediator and as counsel for construction industry clients. These recent events have reaffirmed what I have always believed to be true, namely that no construction case is impossible to settle and avoid the cost and expense of litigation. I was also reminded of why I became a certified mediator and of the satisfaction that I get from helping individuals and construction companies find a business solution and closure.
Read the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Real Estate & Construction News Roundup (7/10/24) – Strong Construction Investment in Data Centers, Increase Use of Proptech in Hospitality and Effects of Remote-Work on Housing Market
August 05, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, renters stay in their units longer, GenAI change how commercial real estate operates, and banks continue high exposure due to commercial real estate.
- Strong investor interest, particularly in opportunistic and value-add segments, signals a strong market for construction firms specializing in high-yield projects. (Sebastian Obando, Construction Dive)
- A growing number of renters are staying in their units for longer periods of time than they did a decade ago with over one-third of U.S. renters have lived in the same apartment for more than five years. (Mary Salmonsen, Multifamily Dive)
- Several U.S. regional and mid-sized banks continue to face the squeeze from high exposure to the commercial real estate sector that has been shaken by higher-for-longer interest rates and empty office buildings. (Reuters)
Read the full story...Reprinted courtesy of
Pillsbury's Construction & Real Estate Law Team
When Licensing Lapses: How One Contractor Lost a $1 Million Dispute
October 28, 2024 —
Matthew DeVries - Best Practices Construction LawAs a construction lawyer, contractor licensing is a very key aspect of my practice. This can include new contractor applications, increase or changes in monetary limits or license classifications, change in ownership or qualifying agent , and, of course, licensing violations.
The recent decision in Incident365 Florida, LLC v. Ocean Pointe V Condominium Association serves as an important reminder for general contractors and subcontractors regarding the significance of proper licensing and thorough contract review in disaster recovery and construction services.
Case Overview
In this case, Incident365 Florida, LLC entered into disaster recovery agreements with several condominium associations (“Associations”) following Hurricane Irma. The agreements involved various tasks such as water damage mitigation, dehumidification, and the removal of unsalvageable materials. However, Incident365 lacked the appropriate contractor’s license when performing the work, which became a focal point in the dispute when the Associations refused to pay the remaining balance of $1 million, citing the absence of the required licensure.
Read the full story...Reprinted courtesy of
Matthew DeVries, BuchalterMr. DeVries may be contacted at
mdevries@buchalter.com
Kahana Feld Partner Jeff Miragliotta and Senior Associate Rachael Marvin Obtain Early Dismissal of Commercial Litigation Cases in New York and New Jersey
August 26, 2024 —
Rachael Marvin - Kahana FeldKF attorneys Jeff Miragliotta and Rachael Marvin recently secured early dismissal for a commercial real estate client on pre-answer motions to dismiss for two cases involving disputes over commercial properties in Union County, New Jersey and Suffolk County, New York.
Plaintiff argued it was entitled to damages in excess of 50 million dollars, including punitive damages, for claims involving trade libel, defamation, conspiracy, and tortious interference with contract and prospective economic advantage for reports that were prepared in connection with the use of a commercial building in Union County, New Jersey. KF attorneys successfully argued that the statute of limitations had run for each of plaintiff’s claims by utilizing a decision from the Supreme Court of New Jersey in an underlying case filed against Union County.
Read the full story...Reprinted courtesy of
Rachel Marvin, Kahana FeldMs. Marvin may be contacted at
rmarvin@kahanafeld.com
Crisis Averted! Pennsylvania Supreme Court Joins Other Courts in Finding that Covid-19 Presents No Physical Loss or Damage for Businesses
October 21, 2024 —
Edward M. Koch & Marc L. Penchansky - White and Williams LLPSeeking to find some relief from business losses experienced during the COVID-19 pandemic, many businesses turned to their property insurers for coverage for their lost income. A clear national trend emerged among courts deciding the issue, as most businesses could not establish coverage because they had not experienced a “direct physical loss of or damage to their covered property” as required by most policies.
While this legal question may have become an afterthought for many attorneys, the question remained an open one in Pennsylvania while the Pennsylvania Supreme Court considered two contradictory holdings issued in the Superior Court on this topic. Compare Macmiles, LLC v. Erie Ins. Exch., 286 A.3d 331 (Pa. Super. 2022) (holding there was no coverage for loss of use of a commercial property unaccompanied by any physical alteration or other physical condition that rendered the property unusable or uninhabitable) with Ungarean v. CNA, 286 A.3d 353 (Pa. Super. 2022) (holding that the policy at issue was ambiguous and therefore the policy covered the insured for COVID-related business losses). Last week, the Supreme Court considered the Superior Court’s holdings in Macmiles and Ungarean and held, at long last, that COVID-19 did not cause a direct physical loss of or damage to covered property.
Reprinted courtesy of
Edward M. Koch, White and Williams LLP and
Marc L. Penchansky, White and Williams LLP
Mr. Koch may be contacted at koche@whiteandwilliams.com
Mr. Penchansky may be contacted at penchanskym@whiteandwilliams.com
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