Most subcontracts include a flow through provision (also called flow down and incorporation clauses) stating that the subcontractor and contractor are bound by the same obligations as set forth in the prime contract between the contractor and owner. Many jurisdictions interpret such provisions narrowly, as illustrated in a recent case out of New York. In
Real Estate & Construction
Architects Should Not Make Initial Decisions on Construction Disputes
By Bill Wilson
A common provision often deleted from the standard form AIA documents is the provision in the AIA A201 General Conditions requiring an Initial Decision Maker (IDM) for claims between the contractor and owner. In the A201, the contracting parties have the option of naming their own IDM for the project. If an IDM is not…
Fourth Circuit: Church Seeking to Operate as Brewery or Farm Winery Did Not State RLUIPA Claim
By Evan Seeman & Ryan Hoyler
The Fourth Circuit has ruled against the Alive Church of the Nazarene’s claims that Prince William County, Virginia, violated the Religious Land Use and Institutionalized Persons Act (RLIUPA) by denying the Church the opportunity to worship on its 17-acre property before the Church complied with relevant zoning regulations. Alive Church of the Nazarene, Inc. v. Prince…
Another Law Will Increase Construction Costs in New York
By Bill Wilson
New York recently enacted legislation known as Carlos’ Law, which increases penalties for corporate liability for the death of, or serious injury to, an employee. The bill, S.621B / A.4947B, was named after Carlos Moncayo, a construction worker killed in a trench collapse on a New York City construction project. Moncayo’s employer repeatedly flouted safety…
Connecticut Court Clarifies a Limit on Payment Bond Claims for Public Projects
By Bill Wilson
In All Seasons Landscaping, Inc. v. Travelers Casualty & Surety Co., No. DBD-CV21-6039074-S, 2022 WL 1135703 (Conn. Super. Ct. April 4, 2022) the plaintiff, a subcontractor on a state project, commenced a lawsuit against the surety who issued a payment bond on the project two years after the subcontractor last performed any original contract work…
Agree First or it May Cost You Later
By Bill Wilson
Business relationships often begin before parties execute a written agreement containing the terms and conditions by which the relationship will be governed. With little more than a Letter of Intent (“LOI”) or Letter of Award (“LOA”) one party is typically pressured to begin investing time and money to start preliminary work on a project. If…
Will the Connecticut Legislature Ignore the Construction Industry and Expand the False Claims Act?
Below is an excerpt of an article published in High Profile on April 4, 2023
After a public hearing held on March 6, House Bill No. 6826, An Act Concerning Liability for False and Fraudulent Claims was voted out of committee by a wide margin, and then added to the House Calendar on March 28. This…
More Funding Brings More Bureaucracy to Federal Projects
By Bill Wilson
On November 15, 2021, President Biden signed into law the Infrastructure Investment and Jobs Act (IIJA) (Public Law 117-58). The IIJA includes the Build America, Buy America Act which declares that “none of the funds made available for a federal financial assistance program for infrastructure may be obligated for a project unless all of the…
A New Template Contract for Prefabricated Construction
Over the past several years, modular construction has been on the rise and this method of construction has been used in the creation of health care facilities, education facilities, and apartment buildings. With the increased demand for housing, the popularity and use of modular construction has grown even more rapidly throughout the industry. In response…
A Prevailing Party Provision Should Define What It Means to Prevail
By Bill Wilson
A typical prevailing party contract provision allows the prevailing party in litigation or arbitration to recover their attorney’s fees from the other party. It is an attractive provision when negotiating a construction contract and its existence often weighs on the decision to pursue litigation or arbitration. However, which party “prevails” is not always easy to…