Baker Bricks

A fresh – and sometimes sideways – view of the construction industry, delivering our no-nonsense take on both national and international news. Tune in for brief posts tackling issues you may never have thought about.

No Damage for Delay Clauses Have Limits on Louisiana Public Works Projects

The Louisiana Public Works Act prohibits “no damage for delay” clauses in contracts for publicly bid projects. Recently, the State of Louisiana tested the boundaries of that prohibition by including a provision in a public contract that limited the contractor’s recovery of delay damages to situations where there was a complete stoppage of work solely attributable to the fault of the public entity/owner.  The Louisiana First Circuit Court of Appeal examined this provision and concluded that it was an impermissible attempt by the State to limit the contractor’s ability to recover delay damages to specific circumstances narrower than allowed in the Public Works Act.  read more…

Texas Supreme Court Reinforces that Subcontractors May be Liable to Property Owners

On August 22, 2014, the Texas Supreme Court ruled that both the trial court and the court of appeals improperly dismissed a property owner’s claim for negligence against a subcontractor for improper plumbing installation in Chapman Custom Homes, Inc. v. Dallas Plumbing Company. The Court reiterated that a subcontractor has an implied duty to perform with both care and skill and that breach of this duty may result in liability to property owners. The Court’s ruling in this case makes it clear that a subcontractor may be directly liable to a property owner even when the property owner and subcontractor do not have a contractual relationship. read more…

11th Circuit Affirms No Indemnity for a Subcontractor’s Deceased Employee Under Employee Exclusion Contained in General Contractor’s Commercial General Liability Insurance Policy

On April 24, 2014, the United States Court of Appeals for the 11th Circuit issued an opinion affirming summary judgment denying a claim by the estate of a subcontractor’s employee against a general contractor’s commercial general liability (“CGL”) policy. Stephens v. Mid-Continent Cas. Co., 2014 WL 1623737 (11th Cir. 2014) read more…

Service Contractor’s Bid Protest Blocked by Lack of LEED Experience

The lack of LEED experience cost an incumbent service contractor the ability to protest the award of a federal contract to its rival, according to an opinion released on April 22, 2014 by the United States Court of Federal Claims.  In Hughes Group, LLC v. United States, 2014 WL 1604330 (Fed. Cl. 2014), the incumbent contractor for janitorial and landscape services filed a bid protest over the government’s award of a contract to another service contractor.  Id.  The basis of the protest was the allegation that the government impermissibly engaged in discussions with the successful bidder that allowed it to make beneficial changes to its proposal.  Id. read more…

Mississippi’s New Construction Lien Law

On Friday, April 11, 2014, Governor Bryant signed Senate Bill 2622 and thus made that bill the new construction lien law, effective immediately, applicable to public, private and residential construction works in Mississippi.  We previously summarized the bill.  The bill is located at Mississippi Statute 85-7-401 et seq. of the Mississippi Code of 1972. read more…

Force Majeure Clauses: Protecting Against the Unforeseeable

Force majeure clauses are a very important, but often overlooked, provision in all contracts, and are particularly important in construction and supply contracts.  Whether a force majeure clause is included in a contract, and the precise language of the clause, will determine the enforceability of the contract and the parties’ obligations thereunder if certain uncontrollable outside events—a “force majeure”—prevents performance.  Accordingly, contracting parties are well-advised to negotiate the terms of a force majeure clause to protect their interests and prevent excessive exposure to liability in the event of a force majeure. read more…

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