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.
Neither an expression of willingness to compromise a claim nor defective wording of claim certification is fatal to a claim. However, the failure to demand a sum certain or the failure to certify render the claim defective and any contracting officer decision is a legal nullity.
A statutory 60-day period for asserting nonpayment in spite of execution of a lien waiver and release commenced on the date stated on the waiver form, not the date the form was delivered. A subcontractor could not manipulate the running of the filing period by delaying delivery of a backdated form.
Volume: 15, Issue: 5 - 03/15/2017
By Bruce Jervis
Second place bidders frequently look for ways to displace low bidders. The most common tool is a protest that the low bid is not responsive to the solicitation or the low bidder is not responsible. Two California contractors took the challenge to another level and the case went to the state’s highest court. Read more.
A contract payment schedule required the cost of stipulated incidental items to be carried in the stated pay items. A contractor could not treat an incidental item as a separately measured, independent pay item.
A second low bidder cannot sue the low bidder for wrongful interference with the competitive bidding process. The competitive bidding statutes, which do not authorize recovery of monetary damages by disappointed bidders, are adequate to protect the public. Creation of a private cause of action would be ill advised.
Volume: 15, Issue: 4 - 02/28/2017
Individuals involved in civil litigation are entitled to represent themselves, to appear pro se. They are not required to hire a licensed attorney in order to participate in the judicial process. What happens, however, when a party to litigation is a group of individuals or an organized business entity? Can a non-attorney member or proprietor represent the broader entity? Read more.