Smith Currie Oles

Two New Proposed Rules Signal Big Changes for Cybersecurity in Federal Contracts Published: April 2, 2024 The United States faces increasingly sophisticated cyber campaigns that threaten the public and private sectors’ security and privacy. The public and private sectors have been rocked by vulnerabilities. Such examples include the December 2020 ransomware attack on SolarWinds that […]

Contractors and subcontractors in the commercial construction industry should consider expedited, or fast track, arbitration clauses in their construction contracts. Expedited arbitrations are meant to be a cost-saving measure for smaller claims and typically involve a shorter schedule, limited or no discovery, and a single arbitrator. While expedited arbitrations are typically used for smaller claims, these […]

A recent unpublished opinion by Division One of the Washington Court of Appeals reiterates that contractors must strictly comply with notice and claim procedures in the contract. If not, the contractor potentially faces severe consequences, including a waiver of its claims. In February 2014, the City of Snoqualmie (the “City”) advertised construction bids for a […]

Howard Roth, partner in our Seattle office, spoke with Denise Ryser, Executive Director for the Pacific Northwest Defense Coalition Fund, regarding how increasing regulations, such as the Buy American Act, are impacting government contractors and their cost of doing business. Read more in the latest issue of Northwest Aerospace News Magazine here (p. 38). Read more

As Government contractors know, under each of the Federal Acquisition Regulation (FAR) Changes clauses, e.g., FAR 52.243-1 – FAR 52.243-4, the Government can unilaterally change the terms of the contract. Such a constructive change under these Changes clauses is subject to a Request for Equitable Adjustment (REA) or Contract Disputes Act (CDA) claim, but the […]

The Office of Management and Budget’s (OMB) August 14, 2023, final guidance for the “Build America, Buy America” (BABA) Act requirements went into effect on October 23, 2023. OMB’s final guidance has far-reaching implications for government contractors in the infrastructure sector, to include a new category of “construction materials” that must be produced in the […]

How Contractors Can Both Use and Protect Themselves from Contractual Time Limits for Bringing Suit Contractors often include time limits to bring claims in their contracts to prevent themselves from being dragged into litigation over projects that were completed years earlier. However, if the contract time limit is shorter than the state’s limitations for bringing […]

The success of any construction project hinges on careful planning, execution, and administration. The same is true for construction contracts. A recent Texas Court of Appeals case, Wood Group USA, Inc. v. Targa NGL Pipeline Company, LLC, emphasizes the need for precision in construction contracts and highlights the significant impact such cases have on contracting […]

Government Cannot Rely on Sovereign Acts Defense to Claim for Costs of Work Performed During COVID-19 Shutdown The Armed Services Board of Contract Appeals (“ASBCA”) recently swatted down an attempt by the U.S. Army Corps of Engineers (“USACE”) to use the sovereign acts doctrine to dodge liability for extra costs incurred during a COVID-19 shutdown. […]

On June 23, 2023, the Supreme Court of the United States in Coinbase, Inc. v. Bielski held that all federal courts must stay litigation proceedings while a motion to compel arbitration is appealed. This decision resolves a long-standing split between federal districts in favor of a uniform rule applicable to all federal courts. Prior to Bielski, some federal […]

Key Takeaways The Department of Labor (“DOL”) announced its long-awaited final rule updating the Davis Bacon and Related Acts. The new rule will have significant impacts on many industries and businesses, particularly federal construction contractors and subcontractors. Regulated parties have 60 days from publication of the final rule in the Federal Register (currently scheduled for publication on […]

The last few years have seen a number of protest decisions addressing whether offerors comply with the requirement to be registered in the System for Award Management (SAM) at the time of proposal submission through the time of award. A recent decision from the Court of Federal Claims reminded contractors about the risks of failing […]

The Cardinal Change Doctrine: An Important But Limited Tool to Protect Against Excessive Scope Changes A fundamental principle of contract law is that one party cannot unilaterally change the terms of the agreement. Nevertheless, most construction contracts include provisions allowing the owner to unilaterally change the scope of the contractor’s work. These provisions often outline […]

A natural progression in design-build public works procurement is to start collaboration with the design-builder earlier—in the program development process, when the design-builder’s expertise can be harnessed to assist the owner to determine design parameters most likely to deliver the facilities the owner needs, within the owner’s budget. This development is called progressive design-build (“PDB”) […]

On federal contracts, the government has several general rights and prerogatives. Two such rights include the right to terminate the contract for convenience and the right to terminate the contract for default. This article provides an overview of each termination and explains the key differences. Termination for Convenience A termination for convenience can occur when […]

Drafting an Enforceable Forum Selection Clause in the Fourth Circuit Parties can expect federal courts to scrutinize forum selection clauses in federal public contracts. Subject to multifactor reasonability tests and ambiguity inquiries, only the clearest clauses survive. A North Carolina District Court declined to enforce a forum selection clause that sought to lay venue outside […]

There is no “one-size-fits-all” approach to choosing the dispute resolution procedure in construction contracts. The appropriate form of dispute resolution depends on the particular situation of each project and the parties’ priorities. In this article, I will give you some things to consider when deciding whether arbitration makes sense as the form of dispute resolution […]

Responsible Managing Employee Rules Are No Joke: Failure to Adhere to Responsible Managing Employee Requirements May Result in Waiver of the Contractor’s Right to Compensation for Work Performed For the second time in calendar year 2022, the Court of Appeal of California has found California Contractors State Licensing Laws bar contractors from collecting for work […]

On Monday, April 10, 2023, the Small Business Administration (SBA) released a final rule regarding appeals from protest determinations related to Historically Underutilized Business Zone (HUBZone) small business concerns. The new rule allows government contractors, disappointed bidders, and contracting officers to appeal protest determinations that turn on an entity’s status as a HUBZone small business […]

There may be a new opportunity for small businesses to expand their book of business when it comes to their pursuit of federal contracts. In the summer of 2022, the Small Business Administration (SBA) released a final rule that may offer a wider range of opportunities for contractors to compete in federal construction procurement. While […]

Retainage is a contractual arrangement between the parties generally intended to offer the party paying for construction some added security for incomplete work, non-payment, and defective workmanship issues. The terms and conditions of retention, including the amount to be withheld, its intended use, the circumstances under which it will be released, and any interest payable […]

Construction accidents can cause significant personal injury or death, property damage, job delays, and increased costs. As a result, it is imperative that owners and contractors continuously monitor and manage potential safety concerns on construction job sites with the intention of reducing accidents… Read more

Virginia recently enacted legislation banning the use of conditional payment clauses, known as “pay-if-paid” clauses, on both public and private construction projects within the Commonwealth. The legislation, known as “SB 550,” went into effect on January 1, 2023, and applies to all construction contracts executed on or after that date. As a reminder, SB 550 […]

The California Legislature introduced more than 4476 bills in 2021-2022 sessions, with 1726 coming in the second session, down from the 2750 in the first session. This article summarizes some of the more important bills directly affecting contractors, addressing issues such as payroll liability and reporting, Read More…

Between a constantly changing regulatory environment, supply chain issues, inflation, and the 2022 mid-term elections, it can be easy to miss relatively small changes to regulatory requirements for federal government contractors and construction professionals. One change that might have been missed is, thankfully, an easy requirement to complete. Companies subject to regulatory oversight by the […]

We have previously written about the potential of new environmental requirements for federal contractors. On November 10, 2022, the White House issued a statement regarding the first of these requirements, which came in a Rule proposing changes to the Federal Acquisition Regulation (FAR) that will require certain contractors to disclose their greenhouse gas (GHG) [1] emissions and climate related financial risk. […]

Climate change has been a hot topic of discussion for some time now. President Joseph Biden’s administration has focused in on that issue, and the related need for protecting the environment, as part of its regulatory agenda through several Executive Orders (EO). Each of those EOs, specifically No. 14030 (“Climate-Related Financial Risk”), No. 14057 (“Catalyzing Clean Energy Industries and […]

During periods of growth and diversification, contractors often look to new geographic regions as part of their strategic business development. When expanding to a new region, contractors must examine several risk and operational considerations before setting down that flag and opening a shop. It serves contractors well to establish their own internal checklist to account […]

Recent news related to construction material escalation has been sobering. Today, contractors face increased risks related to cost escalation of numerous construction materials, and it is expected that increased costs will be passed on to owners in the form of increased bid prices. While U.S. Bureau of Labor Statistics data indicates that bid increases lagged […]

Thinking of Setting Down a New Flag? What Must a Contractor Know When Expanding to a New Region? During periods of growth and diversification, contractors often look to new geographic regions as part of their strategic business development. When expanding to a new region, contractors must examine several risk and operational considerations before setting down […]

Recent news related to construction material escalation has been sobering. Today, contractors face increased risks related to cost escalation of numerous construction materials, and it is expected that increased costs will be passed on to owners in the form of increased bid prices. While U.S. Bureau of Labor Statistics data indicates that bid increases lagged […]

In January of this year,  the Court of Federal Claims issued a harsh reminder of the serious implications of the certification of a claim when dealing with the federal government. In Lodge Construction, Inc. v. United States, not only did the contractor fail to recover on its affirmative claims, but the Court also found merit in […]

In January of this year,  the Court of Federal Claims issued a harsh reminder of the serious implications of the certification of a claim when dealing with the federal government. In Lodge Construction, Inc. v. United States, not only did the contractor fail to recover on its affirmative claims, but the Court also found merit in […]

California Court of Appeal Says To Licensed Contractors, “Hire Unlicensed Subcontractors At Your Own Peril!” In an opinion that should be a warning to all licensed contractors in California, the Court of Appeal held that licensed contractors cannot collect payment from project owners for unlicensed subcontractor work under California Business and Professions Code § 7031(a). […]