Constructlaw

MAY 30, 2023

Introduction America’s water infrastructure has long faced a critical need for funding and modernization. According to the American Society of Civil Engineers, there is a $105 billion funding gap for drinking water and wastewater infrastructure projected over the next two decades. [1] The Infrastructure Investment and Jobs Act (IIJA) addresses this issue head-on, allocating $55 billion to water infrastructure — the largest federal investment of its kind in the nation’s history. [2] However, the

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Constructlaw

MAY 3, 2023

Published in Practical Law The Journal on May 2, 2023. © Copyright 2023, Reuters News, publisher of Practical Law The Journal. Reprinted here with permission. Arbitration is the most widely used method of dispute resolution in the construction industry. Parties should understand the key concepts and common types of claims when deciding whether to arbitrate disputes involving construction contracts.

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Constructlaw

APRIL 20, 2023

Fed. Eng’rs & Constructors Inc. v. Relyant Global LLC , No. 3:19-CV-73-KAC-JEM, 2022 U.S. Dist. LEXIS 95617 (E.D. Tenn., May 27, 2022) This case arises out of the renovation of a U.S. Air Force dormitory in Missouri. The U.S. Army Corps of Engineers hired Relyant Global LLC to act as the prime contractor. Relyant subcontracted with Federal Engineers and Constructors, Inc.

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Constructlaw

APRIL 11, 2023

Entech Engineering, P.C. v. Dewberry Engineers, Inc. , 204 A.D.3d 467, 167 N.Y.S.3d 55 (1st Dep’t 2022) The New York Supreme Court Appellate Division recently affirmed a ruling enforcing a pay-if-paid provision. Defendant Dewberry Engineers, Inc. (Dewberry) contracted with the New York City Economic Development Corporations’ Build-It- Back Hurricane Sandy Program to inspect homes for structural, asbestos, and lead paint issues.

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Constructlaw

APRIL 6, 2023

Globalization increasingly fosters complex cross border transactions and other international business relationships. These transactions and business dealings often give rise to disputes that are commonly resolved through international arbitration. International arbitration is a private dispute resolution process that largely resides outside of the courts of a particular jurisdiction.

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Constructlaw

MARCH 29, 2023

The $1.2 trillion Infrastructure Investment and Jobs Act (IIJA) is poised to change how the United States views and implements public-private partnerships (P3s). At a high level, the IIJA encourages public entities to consider P3s and incentivizes private entities to engage in the P3 market by dismantling roadblocks that have prevented the widespread adoption of P3s in the U.S. — including by removing government red-tape, increasing the availability of federal funding, and delivering much needed

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Constructlaw

MARCH 24, 2023

On February 28, the New York Senate passed Bill S8430A to amend New York’s Real Property Actions and Proceedings Law Section 881. The current version of Section 881, enacted in 1968, offers a developer judicial recourse when an owner or lessee of a neighboring building refuses access that a developer needs to improve or repair its own building. This judicial recourse comes in the form of a temporary license for access.

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Constructlaw

MARCH 16, 2023

Virginia has joined the ranks of states that ban “pay-if-paid” clauses. Contingent payment clauses, like “pay-if-paid” and “pay-when-paid” clauses, protect contractors: A contractor need not pay its subcontractors or suppliers until the owner pays the contractor. A “pay- if -paid” clause conditions a subcontractor’s right to payment on the owner paying the contractor.

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Constructlaw

MARCH 14, 2023

On March 2, the New Mexico House of Representatives unanimously approved House Bill 213 , which would allow public agencies to enter into P3 agreements to facilitate public infrastructure and broadband projects. The public infrastructure component covers the construction or improvement of public transportation facilities or public transportation other than toll roads.

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Constructlaw

MARCH 10, 2023

In All Seasons Landscaping, Inc. v. Travelers Cas. & Sur. Co. of Am. , a Connecticut court considered for the first time whether the performance of warranty work tolls the statute of limitations on payment bond claims. The court ruled that it does not. It dismissed subcontractor All Seasons Landscaping, Inc.’s (ALS’s) bond claim because ALS admitted that it last performed non-warranty work on the project more than one year before filing suit, meaning the statute of limitations barred its cla

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Constructlaw

FEBRUARY 21, 2023

Industrial Steel Construction, Inc. v. Lunda Construction Company , 33 F.4th 1038, 1041 (8th Cir. 2022) This federal case relates to the construction of a bridge over the Mississippi River between Iowa and Illinois. The state of Iowa hired Lunda Construction Company (Lunda) as the general contractor for the project, which contracted Industrial Steel Construction, Inc.

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Constructlaw

FEBRUARY 7, 2023

2700 Bohn Motor, LLC v. F.H. Myers Construction Corp., 338 So.3d 500 (La. Ct. App. 2022). This case involved the restoration of an old building in New Orleans. Fire broke out, resulting in a loss that was paid by the owner’s builder’s risk insurance. The builder’s risk carriers — subrogated to the rights of the owner — then sued the prime contractor, its subcontractor, and sub-subcontractor for negligence.

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Constructlaw

JANUARY 23, 2023

Practice Recognized for Major Deals, Litigation Wins in 2022 NEW YORK – For the second consecutive year, Troutman Pepper’s Construction Practice Group has been recognized nationally among Law360’s Practice Groups of the Year. The firm was among only four to receive the 2022 Practice Group of the Year designation in the Construction category. “Earning this national award for the second straight year speaks to the incredible projects our clients are pursuing on a regular basis,” said Mike Subak, w

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Constructlaw

JANUARY 18, 2023

Hanuman Chalisa, LLC v. BoMar Contr., Inc., 2022-Ohio-1111, 187 N.E.3d 1108 (Ct. App.). Hanuman Chalisa LLC (owner) contracted BoMar Contracting, Inc. (BoMar) to construct a hotel in Columbus, OH. The contract consisted of the AIA A101-2007 and AIA A201-2007. The owner later terminated BoMar, alleging deficiencies in BoMar’s work. The parties disputed whether the owner terminated the contract “for cause” or “for convenience.”.

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Constructlaw

DECEMBER 7, 2022

Accreditation: An extract from Thomas Reuters Practical Law. The full document is available at [link]. Troutman Pepper Partners Albert Bates and Zach Torres-Fowler published a Thomas Reuters Practical Law guide for drawing construction arbitration clauses. The document details a Standard Clause providing sample language for the parties to a domestic U.S. or international construction agreement to agree to arbitration of disputes.

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Constructlaw

DECEMBER 5, 2022

NEW YORK – Troutman Pepper, as specialty construction counsel, represented a consortium of investors consisting of Vantage Airport Group, JetBlue, American Triple I, and RXR Realty in a deal to build, finance, and operate a new US$4.2 billion passenger terminal at New York’s John F. Kennedy International Airport (JFK). The financial close of the deal was announced on November 17.

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Constructlaw

DECEMBER 1, 2022

RKI Expl. & Prod., LLC v. Ameriflow Energy Servs., LLC , No. 02-20-00384-CV, 2022 Tex. App. LEXIS 4331 (Tex. App. June 23, 2022). A recent decision by the Court of Appeals of Texas highlights the perils of failing to properly assert a demand for contractual indemnity. In 2014, a piece of equipment, known as a sand separator, exploded at an oil well in Loving County, TX, killing two individuals and injuring three others.

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Constructlaw

NOVEMBER 22, 2022

New York State Thruway Auth. v. CHA Consulting, Inc. , 165 N.Y.S.3d 832 (Albany Co., Sup. Ct. 2022). This case involved a dispute over a wind turbine project. The root cause of the dispute was a bust between the “wind turbulence” at the site, and the wind turbulence that the turbines installed could withstand. Once the project was completed and commissioned, the overworked turbines prematurely failed.

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Constructlaw

NOVEMBER 9, 2022

United States ex rel. Spirtas Worldwide, LLC v. SGLC Consulting LLC , No. 3:21-CV-00182-MAB, 2022 U.S. Dist. LEXIS 105589; 2022 WL 2116451 (S.D. Ill. June 13, 2022). The U.S. District Court for the Southern District of Illinois recently enforced a partially executed agreement to arbitrate where the party that failed to countersign demonstrated assent through its acts and conduct.

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Constructlaw

NOVEMBER 9, 2022

United States ex rel. Spirtas Worldwide, LLC v. SGLC Consulting LLC , No. 3:21-CV-00182-MAB, 2022 U.S. Dist. LEXIS 105589; 2022 WL 2116451 (S.D. Ill. June 13, 2022). The U.S. District Court for the Southern District of Illinois recently enforced a partially executed agreement to arbitrate where the party that failed to countersign demonstrated assent through its acts and conduct.

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Constructlaw

NOVEMBER 2, 2022

Triple B Servs., LLP v. City of Conroe , No. 09-21-00096-CV, 2022 Tex. App. LEXIS 4824, 2022 WL 2720451 (Tex. App. July 14, 2022). The Texas Court of Appeals recently affirmed a ruling, granting the city of Conroe governmental immunity from a contractor’s lawsuit, asserting claims for breach of contract and violation of the Texas Public Prompt Pay Act.

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Constructlaw

OCTOBER 20, 2022

Pizzarotti, LLC v. X-Treme Concrete Inc. , 205 A.D.3d 487 (N.Y. App. Div. 2022). A New York appellate court recently affirmed the dismissal of a subcontractor’s counterclaims for delay damages and for unpaid amounts because they were barred by the parties’ no-damage-for-delay provision and executed lien waivers, respectively. Pizzarotti LLC, a construction manager, sued its subcontractor, X-Treme Concrete, Inc., seeking to recover amounts it paid X-Treme for uncompleted work and amounts it paid

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Constructlaw

OCTOBER 12, 2022

Constructural Dynamics, Inc. v. Thomas P. Carney, Inc. , No. 1104 EDA 2021, 2022 Pa. Super. Unpub. LEXIS 1500 (Pa. Super. July 1, 2022), reargument denied (Sept. 8, 2022). Thomas P. Carney, Inc. (Carney), a concrete subcontractor, hired Silvi Concrete Products, Inc. (Silvi), a concrete supplier, to supply concrete for the foundation for construction of a luxury hotel in Philadelphia.

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Constructlaw

OCTOBER 6, 2022

Town of New Milford v. Std. Demolition Srvcs., Inc. , 212 Conn. App. 30 (2022). The case involved cleanup and environmental remediation of a vacant factory contaminated with polychlorinated biphenyls and asbestos. The town of New Milford (Town) contracted with Standard Demolition Services, Inc. (Contractor) to perform the third phase of this cleanup and remediation.

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Constructlaw

SEPTEMBER 30, 2022

With more than half of 2022 in the books, Troutman Pepper’s award-winning Construction Practice Group recaps some of the more major developments from the last year and looks ahead to what the remainder holds. Infrastructure Bill Provides Opportunities for Hydroelectric Industry. On November 5, 2021, the U.S. House of Representatives passed the more than $1.2 trillion Infrastructure Investment and Jobs Act , also known as the bipartisan infrastructure framework (BIF).

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Constructlaw

SEPTEMBER 28, 2022

Accreditation: An extract from GAR’s Construction Arbitration Know-how. The whole publication is available at [link]. Troutman Pepper Partners Albert Bates and Zachary Torres-Fowler are published in GAR Insight with their article, “GAR Know How Construction Arbitration: USA (September 2022).” This chapter summarizes issues commonly raised during international construction arbitrations seated in the United States or governed by U.S. laws.

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Constructlaw

SEPTEMBER 12, 2022

This article summarizes statutory remedies available to contractors, subcontractors and material suppliers when upstream parties fail or refuse to release payments on public and private construction projects. Entities furnishing work or materials have several statutory means to enforce their rights to payment, including mechanic’s liens, payment bond claims, and/or claims for violation of state prompt payment laws.

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Constructlaw

JULY 28, 2022

Tocci Bldg. Corp. v. IRIV Partners, LLC , 101 Mass. App. Ct. 133 (2022). For the first time, the Appeals Court of Massachusetts has construed the Massachusetts Prompt Payment Act (the statute), requiring strict compliance on the part of owners and contractors who wish to withhold payments from contractors or subcontractors. In Tocci Building Corporation v.

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Constructlaw

JULY 27, 2022

The U.S. Department of Defense’s (DOD) new “enhanced” debriefing rule is intended to provide bidders more transparency and increase the efficiency of the DOD’s bidding system. Effective March 18, the rule is mandatory for contracts and orders worth more than $100 million, while also impacting those worth between $10 million to $99 million to a lesser extent.

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Constructlaw

JULY 14, 2022

Bank of America, N.A. v. ASD Gem Realty LLC , 205 A.D.3d 1, 164 N.Y.S.3d 566 (2022). ASD Gem Realty LLC and ASD Diamond, Inc. (together, ASD or Owner) contracted Sweet Construction Corp. (Sweet) to renovate a commercial space in Manhattan’s Diamond District (the Project). ASD solicited proposals for the supply and installation of partitions in the space (the Work) and ultimately directed Sweet to hire Arenson Office Furnishings, Inc.

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Constructlaw

JULY 12, 2022

DonRob Invs., L. P. v. 360 Residential, LLC , 870 S.E.2d 874 (Ga. Ct. App. 2022). This case arose from a failed real estate transaction. DonRob Investments LP and Donald Robinson Investments, Inc. (collectively DonRob) agreed to sell, and 360 Residential LLC, 360 Sugar Hill LLC, and 360 Capital Company LLC, (collectively 360) agreed to purchase 12 acres (Site) of a 37-acre parcel of property in Sugar Hill, GA (the Agreement).

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Constructlaw

JUNE 28, 2022

True to form, Texas has joined the majority in adopting the Spearin concept in its own way. The new law is thoughtfully designed for modern alternative and hybrid project delivery methods and cannot be waived by agreement, say Troutman Pepper Construction group attorneys Ben Deninger and David Mancini. Click here to read the full article on Texas Laywer.

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Constructlaw

JUNE 23, 2022

Most are familiar with California’s harsh penalty for unlicensed contractor work. California Business and Professions Code Section 7031 (Section 7031) bars any recovery for compensation for work performed by an unlicensed contractor under any theory of recovery “regardless of the merits of the cause of action.” Cal. Bus. and Prof. Code § 7031(a). It is well-established that subcontractors are covered by Section 7031 from recovering from owners and general contractors if not properly licensed.

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Constructlaw

JUNE 21, 2022

Taylor Morrison of Tex. Inc. v. Caballero , No. 01-20-00800-CV, 2022 Tex. App. LEXIS 1870, 2022 WL 839429 (Mar. 22, 2022). Gary and Kelley Caballero contracted to purchase a new home to be constructed by Taylor Woodrow and Taylor Morrison of Texas, Inc. (Taylor). The contract contained an agreement to arbitrate any disputes with the American Arbitration Association (AAA) under the Federal Arbitration Act (FAA).

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Constructlaw

JUNE 17, 2022

The Economic Loss Doctrine and its various analogues ( e.g., the Independent Duty Rule and the Gist of the Action Doctrine) vary in form and application, but each is a judge-made rule serving one principle: If a party seeks the same economic losses for breach of contract and breach of a common law tort duty, courts must bar the tort claim to prevent a duplicative, windfall recovery.

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Constructlaw

MARCH 1, 2022

Bean Sprouts LLC v. LifeCycle Construction Servs. LLC, No. 001268-CV-2021 (Pa. Super. Feb. 17, 2022). The Superior Court of Pennsylvania recently raised the bar for state courts to assert jurisdiction over out-of-state defendants in actions brought by residents arising from out-of-state projects. Bean Sprouts LLC, a Pennsylvania excavator, performed work on military bases in Alabama and California under contracts with LifeCycle Construction Services LLC, a Virginia prime contractor.

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Constructlaw

JANUARY 19, 2022

Construction and Energy Practices Honored With National Awards. Law360 has named two Troutman Pepper practices among its Practice Groups of the Year for 2021. The firm achieved the national recognition for both its Construction and Energy practices. According to Law360 , 91 firms submitted nearly 900 nominations for the awards, which “honor the law firms behind the litigation wins and major deals that resonated throughout the legal industry in the past year.”.

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