Volume: 15, Issue: 9 - 05/15/2017


Government agencies at all levels are fond of publishing guides and manuals pertaining to construction materials and methods. They are usually detailed and precise. And, they are available, primarily online, to anyone with an interest. Read more.


An arbitration provision in a retainer agreement between a contractor and a law firm was neither unconscionable nor narrow in scope. The contractor could not fully participate in the proceeding and then – dissatisfied with the result – challenge the validity of the proceeding.


An agency materials manual was not incorporated by reference into a highway contract, but was indicative of customary trade practice. However, trade custom cannot supersede express terms of a contract that establish a higher standard.

Volume: 15, Issue: 8 - 04/28/2017


By Bruce Jervis


Many state court rules call for a losing party to pay the winning party’s attorney fees and other costs if the loser asserted its claim in bad faith or without substantial justification. A recent decision of Maryland’s highest court avoided the improper imposition of this severe sanction on a construction contractor. Read more.


A time and materials contract could not be enforced as an indefinite delivery/indefinite quantity contract because it did not guarantee the purchase of a minimum amount of work. And it could not be construed as a requirements contract because there was no promise to purchase all government needs from the contractor.


A contractor’s failure to submit a certificate of a qualified expert in support of its delay claim did not establish that the claim was asserted without substantial justification. The contractor should not have been sanctioned with assessment of the other side’s attorney fees and costs.

Volume: 15, Issue: 7 - 04/14/2017


General or prime contractors have always been enamored with indemnification clauses. Place one in every subcontract and if there is any injury on the project the subs will ultimately be liable. The prime contractor will be exonerated even if it shared responsibility for a safety hazard. Read more.


A contractor is not entitled to redesign a public project on the basis of perceived deficiencies. Repeatedly submitting nonconforming designs outside of the contract requirements puts the contractor at risk for a default termination.


An indemnification clause in a subcontract tracked the language of a California statute. It prohibited indemnification of the prime contractor to the extent of the contractor’s active negligence, but did not prohibit indemnification entirely due to that alleged negligence.

Volume: 15, Issue: 6 - 03/31/2017


By Bruce Jervis


It’s a common standoff when there is a final payment and close-out for construction work. It occurs between owner and contractor, as well as between contractor and subcontractor. The payer doesn’t want to pay until it has received a waiver and release. The payee doesn’t want to waive its rights until it has received payment. Read more

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