In June, the Armed Services Board of Contract Appeals (ASBCA) addressed whether it had jurisdiction where a subcontractor pass-through claim was certified under the Contract Disputes Act (CDA) by the subcontractor’s president, not the prime contractor’s representative. In its motion to dismiss, the government argued that under the CDA, only the prime contractor could certify
Construction Developments
In Georgia, Rely on an Affiliate’s or Individual’s General Contractor’s License at Your Own Peril
On May 5, 2020, the Georgia Court of Appeals affirmed a trial court summary judgment ruling dismissing a residential contractor’s claims against an owner because the contractor was not properly licensed. In LFR Investments, LLC v. Van Sant, after being terminated by the property owner, a homebuilder brought claims for breach of contract and…
Do We Still Need Retainage?
David K. Taylor
Bradley Arant Boult Cummings, Nashville, TN
dtaylor@bradley.com
615-252-2396
There have been debates for years about the pros and cons of owners withholding retainage (usually 5% or 10%, depending on each state’s retainage laws or local “industry standard”) from prime contractors. Typically, the primes will, in turn, withhold retainage from all subcontractors. However,…
2020 Construction Planning in the Wake of COVID-19
The COVID-19 pandemic swiftly eroded recent gains in the U.S. and world economies and has exposed economic and societal vulnerabilities that many believed, or at least hoped, would never come to light. There’s no doubt the virus is negatively affecting the economy, American workers and families. Although construction has been deemed “essential” to one degree…
Warranties: They Protect You Until They Don’t
Most construction contracts include express warranties. A contractor, subcontractor, or vendor may warrant its work or materials on a project for a period of time after the completion of its work or delivery of its materials. The parties to a construction contract will often negotiate the extent and length of this warranty period. But, what…
Disclaiming Implied Warranties in New Home Contracts
In many states, the implied warranties of workmanship and habitability automatically attach to contracts between builder-vendors and new home buyers. Builder-vendors are defined as “persons or entities engaged in constructing homes on real estate they own for sale to the home buying market.” These implied warranties provide a guarantee against certain structural defects not otherwise…
Two Emails Don’t Always Equal One Contract: Contracts in the World of COVID-19
The coronavirus (COVID-19) has changed many of our personal and professional lives. This includes working from home and increased communication by email. During this time, many business decisions will be made through email, including entering into contracts. Owners, developers, and contractors should be aware of the pitfalls associated with negotiating contracts by email. While released…
Can You Challenge a CPAR Evaluation in a Bid Protest?
Technically, no. However, when the contractor is protesting the award of a contract for the same agency that issued the unfavorable Contractor Performance Evaluation Report (CPAR), the contractor may have some success arguing that there was a conflict of interest.
In a very recent decision, the Court of Federal Claims dismissed most of the claims…
CPARS Evaluations: Are You Stuck with What You Get?
Part 42.15 of the FAR entitles federal contractors to submit comments and receive agency review of an unfavorable performance evaluation in the Contractor Performance Assessment Reporting System (CPARS). If the contractor’s rebuttal is unsuccessful, the contractor may challenge the CPARS rating by submitting a claim to the contracting officer (CO) under the Contract Disputes Act.…
Federal Court Expresses Public Policy Concern Regarding Economic Loss Rule
In Prestress Services Industries of TN, LLC v. W.G. Yates & Sons Construction Co., 280 F.Supp.3d 908 (N.D. Miss. 2017), the United States District Court for the Northern District of Mississippi faced a “rather interesting issue of tort law” involving the economic loss rule that has not been addressed by either the Mississippi Supreme…