October 2011 – Construction Law

The Federal Prompt Pay Act Does Not Create A Private Right Of Action

Oct 24 2011

United States of Am. ex rel. IES Commercial, Inc. v. The Continental Ins. Co., Inc., Civ. Action No. 11-0985 (ESH), 2011 WL 4526018 (D.D.C. Sept. 30, 2011)

In this case, the court ruled that the Federal Prompt Payment Act (31 U.S.C. §§3901 et seq.) (the “PPA”) does not provide a subcontractor with an independent cause of action or an implied right of action against a Prime Contractor (or presumably its surety).

A prime contractor was awarded a contract by the United States Architect of the Capitol to perform certain design/build work on utility tunnels connecting the U.S. Capitol Power Plant to the Capitol. Included was electrical work which was, in turn, subcontracted to the Plaintiff, IES Commercial, Inc. (“IES”) in the sum of $118,600.00. Following disputes relating to certain changes and delays between the Prime and IES, IES sued the Prime’s Miller Act (40. U.S.C. §§3131 et seq.) payment bond surety. Thereafter, the Prime intervened and IES sued the Prime for (a) breach of contract and (b) violation of the PPA.

Building Information Modeling (BIM): Special Contract Issues

Oct 05 2011

By Gregory R. Andre, K&L Gates, Chicago

Building Information Modeling (“BIM”) is the use of a digital database to integrate the work of all of the design and construction project team members and generate two-dimensional and three-dimensional models, plans and reports. Cost and scheduling can be added to create fourth and fifth dimensions. It is a tool that facilitates design collaboration and is intended to avoid conflicts and errors in the plans. Simply stated, BIM makes design a group effort, and it raises special contract issues as discussed below. BIM can be used under all of the delivery methods, and is especially encouraged under Integrated Project Delivery (“IPD”).

Instead of each design professional (architect, steel fabricator, HVAC subcontractor, etc.) producing multiple separate and independent plans for one building, BIM allows a team of architects and engineers to all contribute their respective plan and specifications data to one computer model for one building. BIM provides the technology to not only coordinate various building component designs, but also to understand how design changes will impact the cost and timing of the project. The design of one building component, say the HVAC ductwork, can be changed, and BIM will automatically change the other building components to accommodate it and present the overall economic effect and schedule impact due to the change.

To read the full article, click here.

Standards Applicable to Construction Site Safety, Conditions and Injuries

Oct 01 2011

Cain v. Bovis Lend Lease, Inc., 817 F. Supp. 2d 1251 (D. Or. 2011)

A subcontractor employee fell from a ladder at a hospital renovation site and suffered injuries. The injured worker sued the hospital, the renovation general contractor, the ladder fabricator (a subcontractor) and the architect. The worker’s direct employer was statutorily immune from liability. The case is the review of summary judgment motions by all parties resulting in a recommended series of decisions by a federal magistrate.

Archive:October 2011