Construction Litigation Roundup: “D’Oh!”
August 12, 2024 —
Daniel Lund III - LexologyThe U.S. DOL found itself on June 24 on the wrong end of a preliminary injunction concerning recent changes to the Davis-Bacon Act.
The lawsuit, initiated in Texas federal court by the Associated General Contractors of America and other concerned citizens, sought a preliminary injunction barring implementation and enforcement of “specified portions of § 5.2 and § 5.5(e) of the DOL’s ‘Updating the Davis-Bacon and Related Acts Regulations’” – the “Final Rule,” published August 23, 2023.
After determining the appropriateness of the “standing” of the plaintiffs based upon the plaintiffs being “adversely affected” by the Final Rule, the federal court preliminarily enjoined enforcement of the Final Rule. In noting its disagreement with the Final Rule, the court stated:
“… the Final Rule amends the DBA [the Davis-Bacon Act] by imposing a stealth selfimplementing DBA requirement in the contract by an operation-of-law provision that contradicts the express statutory language of the Act [the court bristling at the idea that contracts might exclude with impunity the otherwise mandated DBA clauses]. Further, the Final Rule amends the Act to extend the DBA to apply to workers who are not mechanics and laborers, and to extend the scope of the work covered by DBA to include work is not performed ‘directly on the site of the work.’
Read the full story...Reprinted courtesy of
Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Supreme Court Upholds Prevailing Wage Statute
August 19, 2024 —
Ahlers Cressman & Sleight PLLCHistorically, the prevailing wage was calculated by averaging the wages within a certain industry and county. However, in 2018 the Washington Legislature amended the statute so that the prevailing wage would be assessed based on the highest wage set by collective bargaining agreements in the county. The amendment (RCW 39.12.015(3)) reads as follows:
(3)(a)…the industrial statistician shall establish the prevailing rate of wage by adopting the hourly wage, usual benefits, and overtime paid for the geographic jurisdiction established in collective bargaining agreements…
(b) For trades and occupations in which there are no collective bargaining agreements in the county, the industrial statistician shall establish the prevailing rate of wage by…conducting wage and hour surveys.
So, for example, if union engineers bargain for a wage, that is the wage all engineers in the county must be paid on public projects. The legislature passed this law for the sake of efficiency because it took significant resources for the Industrial Statistician to compute the prevailing wage for every trade and every county, but the law has significant knock-on effects.
Read the full story...Reprinted courtesy of
Ahlers Cressman & Sleight PLLC
Bally's Secures Funding for $1.7B Chicago Casino and Hotel Project
August 12, 2024 —
Annemarie Mannion - Engineering News-RecordPlans for a $1.7-billion casino and adjacent 34-story hotel are advancing in Chicago as the gaming operator reports it has secured $940 million to complete funding for the project and has set demolition for a printing press building now occupying the site for this summer.
Reprinted courtesy of
Annemarie Mannion, Engineering News-Record
Ms. Mannion may be contacted at manniona@enr.com
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Untangling Unique Legal Issues in Modern Modular Construction
September 09, 2024 —
Chad Theriot & Brad Sands - Construction ExecutiveModular construction has grown significantly over the last few years and shows no signs of slowing down. This construction method is a departure from traditional approaches where all construction activity occurs onsite. Modular construction involves building standardized project components—usually in an offsite, controlled environment—which are then transported and assembled at the project site. Offsite construction generally allows for better quality control and economic efficiency, as it can utilize an assembly-line process. Modular fabrication can also centralize skilled labor in regions with lower labor costs.
Establishing each party's expectations upfront is always important, but even more so in modular construction since much of the construction activity is performed away from the ultimate project site. This requires extensive coordination among designers, fabricators, installers and owners to ensure construction, testing and quality progresses accordingly. Every field change and design clash could have an exponential impact on the modular fabrication efficiencies given the assembly-line approach and remote nature of modular work.
Reprinted courtesy of
Chad Theriot & Brad Sands, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Kiewit Selected for Rebuild of Collapsed Baltimore Bridge
September 02, 2024 —
Jim Parsons - Engineering News-RecordKiewit Infrastructure Co. has been tapped to rebuild Baltimore’s I-695/Francis Scott Key Bridge under a progressive design-build procurement announced Aug. 29 by the Maryland Transportation Authority (MDTA). Work on the expected four-year reconstruction effort is scheduled to begin next year.
Reprinted courtesy of
Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
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Extreme Rainfall Is Becoming More Frequent and Deadly
November 11, 2024 —
Lou Del Bello - BloombergTorrential rains that triggered floods and landslides have killed hundreds of people and displaced millions across parts of Africa, Europe, Asia and the US in recent months.
The unprecedented deluges overwhelmed even communities accustomed to extreme weather and showed the limitations of the early-warning systems and emergency protocols established in many countries to avoid major loss of life.
Climate scientists have warned that an accelerated water cycle is locked into the world’s climate system due to past and projected greenhouse gas emissions, and is now irreversible.
The communities that tend to pay the highest price are often in poorer countries, where environments can be more fragile and governance more patchy, and there are fewer resources to bounce back after a disaster.
Read the full story...Reprinted courtesy of
Lou Del Bello, Bloomberg
Hard to Believe It, Construction Law Musings is 16
January 07, 2025 —
Christopher G. Hill - Construction Law MusingsOn this date back in 2008 (wow, that seems so long ago), I began Construction Law Musings on the Blogger platform with a brief announcement. Little did I know that this corner of the internet (or is it Blawgosphere?) would still be around in 2024!
In the time since I made that short entry 16 years ago (I know, I can’t believe it either), I’ve met several construction lawyers here in Virginia who refer to me as the “blog guy.” To be recognized for the work I do here at Construction Law Musings, something that benefits me (and I hope the readers), and which I do for the fun of it, is an honor.
The blog has since taken on a life of its own in many respects, allowing me to meet some of the great construction pros who have provided a guest post or two for Musings and added their different perspectives. Musings also kept me up on at least most of the trends in Virginia construction law by making me post consistently (though sometimes less consistently than others). Now, around 975 posts and 16 years later, I find it hard to believe that so much time has passed and effort has been put into what started on a whim and the plan that I’d post thoughts on the legal landscape and construction from the perspective of a Virginia construction lawyer.
Read the full story...Reprinted courtesy of
The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Toolbox Talk Series Recap - Guided Choice Mediation
November 05, 2024 —
Douglas J. Mackin - The Dispute ResolverIn the September 26, 2024 edition of Division 1's Toolbox Talk Series,
Clifford Shapiro presented on Guided Choice Mediation (“GCM”) and how it can lead to better outcomes in construction disputes.
GCM is an approach to mediation that focuses on early and efficient dispute resolution, which prominent mediators created as a public interest project.
Shapiro described his particular variant of GCM based on his experience while acknowledging that other Guided Choice Mediators’ processes may differ from his in various ways. Shapiro’s brand of GCM focuses on ensuring that parties have reasonable expectations and appropriate settlement authority prior to arriving at a mediation. Some of the strategies to help accomplish these noble goals are (i) early mediator engagement, (ii) mediator facilitation of information exchange, (iii) mediator involvement with insurance issues (particularly important in construction defect cases, especially those with multiple defendants), (iii) pre-mediation ex parte meetings, and (iv) mediator participation in risk analysis. These strategies are not typical in the more traditional/historic approach to mediation in which mediation is scheduled based on a scheduling order, mediation statements are sent to the mediator roughly a week before the scheduled mediation (and sometimes not even shared with anyone other than the mediator), and the parties speak with the mediator for the first time on the day of the mediation.
Read the full story...Reprinted courtesy of
Douglas J. Mackin, Cozen O’ConnorMr. Mackin may be contacted at
dmackin@cozen.com
