Construction

Positive Economic News from the Construction Industry as the effects of COVID-19 Pandemic decrease

Positive Economic News from the Construction Industry as the effects of COVID-19 Pandemic decrease

Positive signals in the construction industry; the AIA’s Architecture Billings Index through April 2021 indicates a strong rebound as the effects of COVID-19 continue to subside. The Architecture Billings Index (ABI) is a composite index derived from monthly report surveys from American Institute of Architects (AIA) member firms located throughout the country reporting on activity of “work-on-the-boards.” The data is compiled by the American Institute ...
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Don’t be a victim of an ADA drive-by!

Don’t be a victim of an ADA drive-by!

This past year marked the 30th Anniversary of the Americans with Disabilities Act (ADA). The Act was signed into law on July 26, 1990. The Act is a civil rights law that promotes the inclusion of people with disabilities in every aspect of life, including existing buildings and facilities.  Under Title III, the Act defines “Public Accommodations” as a private entity that owns, leases, or ...
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Virginia DEQ Amends Construction General Permit to Include Disposal Disclosure Requirements

Virginia DEQ Amends Construction General Permit to Include Disposal Disclosure Requirements

Contractors that obtain coverage under the Virginia General Permit for Discharges of Stormwater from Construction Activities (“Construction General Permit” or “Permit”) will soon need to disclose information regarding the disposal of excavated material from project sites. The Construction General Permit regulation, 9 VAC 25-880, governs stormwater discharges from regulated construction activities. Contractors seeking coverage under the Construction General Permit must submit a registration statement that ...
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Virginia’s New COVID-19 Reporting Change and Online Reporting Portal

Virginia’s New COVID-19 Reporting Change and Online Reporting Portal

Effective December 8, 2020, the Virginia Department of Labor and Industry has determined that employers no longer need to report single COVID-19 positive cases to the Virginia Department of Health. However, after an outbreak of two or more cases, employers shall continue reporting all cases to VDH until the local health department notifies the business that the outbreak has been closed. Closure is an effective ...
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Timely Protest Following Required Debrief or Explanation Letter

Timely Protest Following Required Debrief or Explanation Letter

Under 4 CFR § 21.2, disappointed offerors protesting the award of a contract must file their protest within "10 days after the basis of the protest is known or should have been known." Notwithstanding the seemingly clear language, this is the subject of regular dispute, particularly with respect to procurements that require a debrief or explanatory letter to the party not receiving award. Additionally, there ...
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Bid Protests On The Basis Of Cardinal Change: The Fine Line Between Solicitations And Contract Administration

The Government Accountability Office’s (“GAO”) Comptroller General and the U.S. Court of Federal Claims (“COFC”) regularly consider bid protests.  Bid protests are challenges to the terms of a solicitation or to the award of a federal contract.  Post-award protests are generally the result of an interested, but unsuccessful, offeror challenging the agency determination that another offeror provided the best value to the Government per the ...
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Construction Industry Economics Respecting COVID-19 Mixed But Positively Trending

The Architecture Billings Index (ABI) is a composite index derived from monthly report surveys from American Institute of Architects (AIA) member firms located throughout the United States reporting on construction project activity the AIA refers to as “Work-on-the-Boards” (projects in the planning and design processes).  The data is compiled by the AIA’s Economics & Research Group, using a first-hand survey index from architectural firms as ...
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Virginia’s Proposed Permanent Standard for Infectious Disease Prevention Regulations: A reminder that the opportunity for public comment closes September 25, 2020

Virginia’s Proposed Permanent Standard for Infectious Disease Prevention Regulations: A reminder that the opportunity for public comment closes September 25, 2020

As previously publicized, the Virginia Department of Labor’s (DOL) Safety and Health Codes Board (Board) Emergency Temporary Standard (ETS) for Infectious Disease Prevention became effective on July 27, 2020, but because of their nature would expire unless they or alternatively proposed regulations were made into permanent standards. When the ETS were published, DOL included its notice of intention to adopt them as a permanent standard, ...
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government contracts

Subpoena Power of Arbitrators Over Non-Party Documents

Arbitration is a means for parties to resolve disputes in a more efficient and less costly manner than seeking recourse through the judicial system.  The Federal Arbitration Act empowers the arbitrator to subpoena non-parties and their documents to an arbitration proceeding.  However, there is disagreement among the courts regarding the arbitrator’s power to compel pre-hearing document production from non-parties.  The federal circuits have approached this ...
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“Zone of Reasonableness” Test Prerequisite Addressed by the Federal Circuit

“Zone of Reasonableness” Test Prerequisite Addressed by the Federal Circuit

The so-called “zone of reasonableness” standard has been long applied by federal courts and boards of contract appeals in evaluating contract interpretation when the contract is deemed ambiguous – meaning that it is susceptible to more than one reasonable interpretation. Ambiguity does not exist merely because the parties differ in their respective interpretations of the contract; rather, the parties’ interpretation must be reasonable, with that ...
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construction-1717905_1280

Construction Administration and Site Visits in a Brave New World

Construction Administration and Construction Site Visits are difficult things of themselves and with inherent risks imposed by COVID-19 demand additional care and prior planning, particularly for such things as site observations and payment application confirmation that require in-person observation and interaction. To address these additional concerns, the American Institute of Architects (AIA) recently published on its website guidelines and protocols recommended for construction administrators and contractors ...
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Payments Due Subcontractors and Suppliers in Virginia

Virginia’s law on the payment of subcontractors and suppliers just got some muscles. For years, Virginia had a statute that made it a crime for any contractor or subcontractor “with the intent to defraud” to retain or use funds for any purpose other than to pay persons performing labor or furnishing material on a project. This was a rarely known or used statute as Commonwealth ...
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Construction of office building on purple sunset with two cranes

Construction and Virginia’s New Wage Laws

Of the record number of new laws in Virginia, a trio of wage laws will arguably have the biggest impact on contractors changing the way the construction companies operate in Virginia. Virginia statutes on non-payment of wages, worker misclassification and wage theft all create new administrative penalties and private rights of actions that combine to create new risks to every contractor or supplier on a ...
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legal law concept

Virginia’s Mechanic’s Lien Plus Statute: Making those in higher tiers personally liable separate from and regardless of mechanic’s lien rights

Within Virginia’s mechanic’s lien article is a little known, and little used, mechanism providing for personal liability of higher tiers separate from that article’s mechanic’s lien rights. The title is “How owner or general contractor made personally liable to subcontractor, laborer or materialman.” It is actually a very simple process; and all it takes is two steps to effectuate. Step One: If you have furnished ...
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Bid Acceptance Period Extension And Revival

Bid Acceptance Period Extension And Revival

When publishing a solicitation, the Government Contracting Officer (“CO”) may set a minimum acceptance period, during which offerors must agree to hold open their bid pricing following the submission of their proposals.  Federal Acquisition Regulations (“FAR”) 14.201-6(i), 14.201-6(j), 52.214-15, and 52.214-16 provide the mechanisms by which the CO may do so.  A solicitation's minimum acceptance period is a material requirement and bids that specify a ...
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Construction of office building on purple sunset with two cranes

Construction and Government Contractors are Critical Infrastructure – Government Guidance to Contractors

As we all continue to deal with the rapidly evolving Coronavirus/COVID-19 situation, government contractors should be aware of policy guidance issued by government and DoD leadership that may impact them. On 19 March 2020, the Department of Homeland Security’s Cybersecurity & Infrastructure Security Agency (CISA) Director issued guidance announcing CISA’s initial advisory list of “Essential Critical Infrastructure Workers” to identify workers conducting a range of ...
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Construction Project Team Considerations Regarding COVID-19

Construction Project Team Considerations Regarding COVID-19

Construction project impacts from the COVID-19 pandemic are far-reaching and continuing to evolve. While every project must be considered individually, below are some issues for construction project team consideration.   -Performance impact issues vary depending on the nature of the project. Moreover, public bodies, at all levels, are developing guidance that need careful monitoring and, once finalized, compliance. For federal construction projects, there is already ...
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Virginia DPOR Offices Closing But Taking Administrative Actions to Minimize COVID-Related Impacts.

Virginia DPOR Offices Closing But Taking Administrative Actions to Minimize COVID-Related Impacts.

As COVID-19 continues to impact businesses, it is also impacting licensing, certification, and other credential requirements for contractors. Effective March 18, 2020, DPOR has announced that its offices at the Perimeter Center will be closed to the public, but that to minimize impact DPOR is extending the validity of licenses, certifications, and other credentials issued by its regulatory boards that would otherwise expire during Virginia’s ...
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Construction Change Order: Friend or Foe

Construction Change Order: Friend or Foe

The dreaded Change Order or CO is almost unavoidable on most projects. COs commonly result because of things such as inaccurate specifications, ambiguous or inaccurate drawings, unforeseen conditions at a job site, issues with construction materials, faulty budgets or schedules, or additional requests or changes by an owner. CO logistics vary by contract, and it is important for all contract parties to understand, and follow, ...
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Mixed Economic News from the Construction Industry

Mixed Economic News from the Construction Industry

Navigating mixed signals in the construction industry; the AIA’s Architecture Billings Index through September 2019 indicates generally flat but encouraging business conditions. Dated – No. Important – Yes. Why? The Architecture Billings Index (ABI) is a composite index derived from monthly report surveys from member firms located throughout the country reporting on activity of “work-on-the-boards.” The data is compiled by the American Institute of Architects ...
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