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Private PPA Amendment: What Is All The Fuss About?

posted 3 hours ago
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By Cavan S. Boyle of Ernstrom & Dreste LLP Originally published Spring 2024 Last November, New York’s private Prompt Payment Act (“PPA”) for commercial construction projects of more than $150,000 was modified, making changes to General Business Law §§756-a and 756-c. 1 Legislative sponsors sought to rectify the prior law’s failure to facilitate timely final payment to contractors or adequately limit retainage, which often subjected contractors (and subcontractors) to long wait-times for payment and caused costly, avoidable disputes. 2 Thus, the new PPA provisions endeavor to reduce retainage and permit final invoicing earlier than previously provided. ...
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Two New Proposed Rules Signal Big Changes for Cybersecurity in Federal Contracts

posted 3 days ago
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By Kenny R. Cantrell, III of Smith, Currie & Hancock LLP Originally 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 paralyzed multinational companies and permanently locked people around the world out of tens of thousands of computers, and the Colonial Pipeline ransomware attack on May 7, 2021 that halted the pipeline system’s access to servers and caused widespread fuel shortages. Government contractors ...
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Town’s Notice of Withholding Triggers Claim Notice Requirement

posted 6 days ago
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By Nell M. Hurley of Ernstrom & Dreste LLP Originally published Spring 2024 A prudent contractor knows that limitations periods for suit against a non-paying owner can be set forth in several places. New York has a statutory six-year limitation period for breach of contract actions, but shorter limitations periods are common in construction contracts, particularly for public work, whether spelled out directly in the contract or by other laws relating to the public entity. There may also be notice provisions in the contract, or by law, that must be timely fulfilled by the contractor as a condition precedent to commencing a lawsuit. Failure to satisfy ...
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“Pay-if-Paid” and “Pay-when-paid” Clauses in Virginia

posted 7 days ago
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By Ken Stallard and Kelly Cousoulis of Carr Maloney P.C. Originally published April 1, 2024 Similar to its neighbors in Maryland and the District of Columbia , Virginia has analyzed its treatment of the “pay-if-paid” or “pay-when-paid” clauses in construction contracts. Virginia previously allowed pay-if-paid clauses in construction contracts that allowed a general contractor to defer payment to its subcontractors until the general contractor was paid by the owner of the project. This changed with the passage of amendments to Virginia Code § 11-4.6 that became effective in 2023. A typical pay-if-paid clause in a subcontract might read: “The Parties ...
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Strict Compliance with Mandatory Notice Provisions Required in Washington State

posted 17 days ago
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By Nicole E. Wolfe of Smith Currie & Hancock LLP Originally published March 11, 2024 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 public works contract for improvements to downtown Snoqualmie, including installation of a new water main, storm drainage system, undergrounding of power, cable, and phone lines, and roadway paving. The City ...
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Major Changes Now in Effect to Davis-Bacon and Related Acts

posted 17 days ago
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By Jackson Moore and Tess S. R. Diven of Smith Anderson Originally published April 2, 2024 For the first time in almost 40 years, the U.S. Department of Labor (“DOL”) has finalized comprehensive changes to regulations covering the Davis-Bacon Act (“DBA”) and 70 “DBA Related Acts,”[1] federal wage regulations that apply to contractors and subcontractors working on most federal government construction projects.[2] The changes to these collective regulations (“DBRA”) are intended to “provide clarity . . . and to enhance the effectiveness and consistency of the administration and enforcement of the DBRA.”[3] The Final Rule applies minimum wage requirements ...
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Bid Protests in Pennsylvania

posted 24 days ago
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By Aron C. Beezley and Nathaniel J. Greeson of Bradley Arant Boult Cummings LLP Originally published on March 5, 2024 Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see, e.g., our posts on bid protests in North Carolina , Georgia , the District of Columbia , New York , Virginia , and Alabama ). For the next state in this series, we focus on the bid protest procedures in Pennsylvania. What Rules Apply? • The Department of General Services (DGS) is responsible for contracting for equipment and supplies for the Commonwealth of Pennsylvania. • Purchasing is governed by the Commonwealth Procurement ...
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Overview of Handback Provisions in P3 Agreements: Lessons Learned from UK Projects

posted 24 days ago
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By Eric Singer of Bilzin Sumberg Baena Price & Axelrod LLP Originally Published February 20, 2024 Public-Private Partnerships (P3s) are an increasingly common method of delivering public infrastructure. When structured properly, P3s allow governments to leverage private-sector expertise and resources to deliver essential infrastructure projects in a more efficient manner. One critical provision of a P3 agreement relates to what is known as the “handback” phase of the project. The handback is the transfer of the project from the private sector to the public sector at the end of the P3 agreement. Due to the lifespan of P3 agreements (99 years is not an ...
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U.S. SBA OSG Hosts Free Surety Industry Town Hall on Wednesday, April 3

posted 03-25-2024
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The U.S. Small Business Administration Office of Surety Guarantees (OSG) is hosting a Surety Industry Town Hall on Wednesday, April 3 from 2:00 p.m. to 3:00 p.m. Eastern Time. Registration is free and all surety professionals are encouraged to attend. Register here . The Town Hall will be an open conversation with these SBA leaders: Director of the OSG Jermaine Perry, Denver Area Supervisor Jennifer Vigil, Seattle Area Supervisor Catharine Powers, DC Area Supervisor & Preferred Surety Bond Program Earnest Knott, and Acting Supervisory Surety Bond Guarantee Claims Specialist Hector Cartagena. Register and learn about the state of the Surety Bond ...
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Employee Stock Ownership Plans for Construction Companies

posted 03-13-2024
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By David Joffe and Emily Horn of Bradley Arant Boult Cummings LLP Originally published as a three-part series beginning January 2024. In recent years, a growing number of construction companies have established employee stock ownership plans (ESOPs). The interest in an ESOP is often generated by the need for an exit strategy for one or more of the owners of a closely held business, a common scenario in the construction industry. In fact, the construction industry, more than most industries, seems particularly drawn to ESOPs. A few reasons for this are that private equity buyers are rarely interested in construction companies and construction companies ...
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March 21 AAA Construction Conference Explores Emerging Tech and ADR

posted 03-11-2024
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The 2024 American Arbitration Association® (AAA) Construction Conference : Exploring the Intersection of Emerging Technologies and Alternative Dispute Resolution will be held on Thursday, March 21 in Coral Gables, FL. The Conference agenda is now available . NASBP is participating as a cooperating organization of the Conference. The 2024 AAA Construction Conference will focus on the relationship between emerging technologies and Alternative Dispute Resolution (ADR) in the construction industry. Presenters will look at things like BIM, AI, and other smart ConTech tools, to see how they are altering construction practices and how those alterations effect ...
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Top Risks for Businesses in 2024

posted 03-05-2024
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By Melissa B. Mahle of Bradley Arant Boult Cummings LLP Originally published January 25, 2024 Just weeks into 2024, it is already clear that uncertainty will be the watchword. Will the economic soft landing of 2023 persist into 2024? Will labor unrest, strong in 2023, settle down as inflation cools? Will inflation remain tamed? Will the U.S. elections bring continuity or a new administration with very different views on the role of the U.S. in the world and in regulating business? Uncertainty is also fueling a complex risk environment that will require monitoring global developments more so than in the past. As outlined below, geopolitical ...
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CBP Releases Guide on Bond Amounts Standardization

posted 02-26-2024
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By John Sheppard of C.A. Shea & Company, Inc. Originally published February 15, 2024 The U.S. Customs and Border Protection (CBP) recently released detailed guidelines for determining minimum bond amounts. The guide can be found on their website here . This new guide is a step towards standardizing the process for setting bond amounts across most bond types. CBP has worked to streamline the methodology for determining bond amounts, collaborating with industry leaders over several years. Our office has actively participated in multiple committees, assisting CBP in navigating the complexities of this process. While acknowledging that CBP’s release ...
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Rule of Two Changes: OMB Memo Aims to Make Rule of Two Apply to Task and Delivery Orders and SBA’s Proposed Rules, Coming Soon, Will Shape the Future Procurement Landscape

posted 02-20-2024
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By Isaias “Cy” Alba, IV and Annie B. Hudgins of PilieroMazza Originally published February 9, 2024 On January 25, 2024, the White House Office of Management and Budget issued a memo, Increasing Small Business Participation on Multiple-Award Contracts, calling for executive agencies to apply the FAR’s Rule of Two to task and delivery orders competed under multiple-award contracts. Contractors should take note that this change has the potential to significantly increase the number of small business set-asides, and in turn, it could mean millions more dollars in contract opportunities for small businesses. In this blog, we examine changes to ...
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Key Insights from Recent Bid Protest Decisions Reshape Strategies for Future Government Contractor Success

posted 02-12-2024
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By Katherine B. Burrows and Eric Valle of PilieroMazza Original Presentation on February 8, 2024 Click here to view the recorded session. Bid protests play a crucial role in the federal procurement process. Whether you’re submitting a proposal, filing a protest, or defending your contract award, bid protest rulings can influence not just your current contract but also future outcomes and the broader award process. Decisions made in 2023 are no different. They have ramifications that extend beyond 2023, affecting aspects like submission deadlines and the burden of proof for protesters. 2023 decisions illustrate important considerations for government ...
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Bid Protests in Virginia

posted 02-02-2024
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By Aron C. Beezley , Nathaniel J. Greeson , and Patrick R. Quigley of Bradley Arant Boult Cummings LLP Bradley has been publishing an ongoing survey of state-level bid protest processes and procedures (see, for example, our post on “ Bid Protests in New York ” and our “ Update on Bid Protests in Alabama ”). For the next state in this ongoing series, we focus on the bid protest procedures in the Commonwealth of Virginia. Who May Protest and When? Under the Virginia Public Procurement Act , any bidder or offeror who desires to protest the award or decision to award a contract shall submit the protest in writing to the ...
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Protecting Our Nation’s Data: Cybersecurity Compliance for Government Contractors

posted 02-02-2024
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By Isaias “Cy” Alba, IV and Daniel Figuenick, III of PilieroMazza Original presentation January 4, 2024 Click here to view the recorded session. In an era where digital threats are ever-evolving, ensuring the security of sensitive government data is paramount, especially for government contractors working on defense contracts. Join PilieroMazza’s Cy Alba and Daniel Figuenick for an insightful webinar exploring the unique challenges facing government contractors in safeguarding crucial data assets. You’ll learn valuable insights into the latest cybersecurity compliance requirements, helping to improve your ability to compete for contracts, as ...
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Streamlining Record Management for Construction Contractors: Best Practices and Retention Guidelines

posted 01-29-2024
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By Lisa Ricciardi of Marcum LLP Originally published January 16, 2024 For construction contractors navigating the fast-paced and project-driven construction industry, keeping organized records is a critical component of your business’s functionality and paves the way for future prosperity. Not only does effective record management help you stay compliant with legal requirements, it also provides valuable insights that can help you make more informed decisions. Let’s take a closer look at some smart record keeping practices, as well as reasonable retention periods for various important documents. 1. KEEP IT NEAT AND TIDY Your records are the heartbeat of ...
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The Contractor’s Contingency: What Contractors and Construction Managers Need to Know and Be Wary of

posted 01-19-2024
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By Skyler L. Santomartino of Peckar & Abramson, P.C. Originally published November 15, 2023 This article was written for the ConsensusDocs newsletter and first appeared here. Contractors and construction managers who enter into cost reimbursable contracts subject to a guaranteed maximum price (GMP) are responsible for all project costs exceeding the GMP. For this reason, it is imperative that contractors negotiate and incorporate into the GMP a financial buffer that accounts for the unanticipated project costs that are not reimbursable as change orders or costs of the work. This is where the contractor’s contingency comes into ...
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Wyncrest Commons: Commonly Used Progress Payments in Construction Contracts Do Not Render Them Installment Contracts

posted 01-12-2024
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By Benjamin J. Hochberg of Peckar & Abramson, P.C. Originally published November 22, 2023 In BIL-JIM Construction Company, Inc. v. Wyncrest Commons, LP , 2023 WL 7276637 (Unpublished, decided November 3, 2023), the New Jersey Appellate Division was asked to consider two issues regarding the interpretation and application of a construction contract that utilized the standard form American Institute of Architects owner/contractor agreement (AIA Document A101-2007) (the “AIA Contract”). Specifically, it was asked to consider: 1) whether a modified AIA Contract was an “installment contract,” whereby each progress payment was subject to its ...
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