Virginia Construction Law Deskbook (OLD EDITION)

Publication Date: 2011 (View 2016 edition.)
Available Formats: Print (1,059 pages, looseleaf, 2 volumes)
Product #: 913

Information

PLEASE NOTE: A 2016 edition of this publication is available in print, CD, USB flash drive, and immediate download. Click here for newest edition.

Construction projects are large, often immense, undertakings. Attorneys in this field deal with builders, owners, insurers, financial institutions, subcontractors, and suppliers, on a legal landscape characterized by bidding, bonding, and performance requirements, and federal, state, and local governmental authorities. Resolution of disputes can be complex and litigation expensive, giving rise to the increasing use of arbitration and other alternative dispute resolution methods.

The Virginia Construction Law Deskbook provides essential reference and expert guidance and analysis to navigate through the issues faced by the construction law attorney. This edition includes a new chapter on subcontractors and suppliers, as well as coverage of changes in state and federal law.

The 2011 Edition Covers:

  • Changes to the Virginia Public Procurement Act at the 2011 Session of the General Assembly.
  • New threshold amounts for payment bonds furnished by prime contractors.
  • On-line posting of invitations to bid on state construction contracts at the Department of General Services’ website.
  • Use of the federal E-Verify system to verify eligibility of employees on projects involving federal funds. Virginia has also enacted E-Verify compliance provisions.
  • Revision of Title 41 of the U.S. Code, “Public Contracts.”

Table of Contents

PLEASE NOTE: A 2016 edition of this publication is available in print, CD, USB flash drive, and immediate download. Click here for newest edition.

TABLE OF CONTENTS (2011 Edition)
Chapters and Authors 
Acknowledgments
About the Editors and Authors
Preface


CHAPTER LIST
1. Overview
2. Licensing of Contractors, Architects, and Engineers
3. Building Codes, Permits, Zoning, and Special Issues
4. Design Professionals
5. Contract Delivery Systems
6. Bidding on Federal Construction Contracts
7. State and Local Government Contracts
8. Federal Construction Contracts
9. Drafting Issues in Construction Contracts
10. Changes and Extra Work
11. Unforeseen Worksite Conditions and Related Matters
12. Termination of Contracts
13. Immigration and Labor Law
14. Damages
15. Project Scheduling, Delays, and Time Extensions
16. Bond Claims on Public Projects
17. Contractor Rights and Remedies
18. Mechanics’ Liens
19. Bankruptcy
20. Insurance Coverage
21. Occupational Safety and Health Act
22. Effective Trial Presentations
23. Alternative Dispute Resolution
24. Ethics
25. Sick Building and Toxic Mold Claims
26. Subcontractors and Suppliers

Volume 1

CHAPTER 1: OVERVIEW  (back to top)

1.1 THE CONSTRUCTION INDUSTRY AND THE LAW

1.101 Economic Impact and Legal Principles
1.102 Challenge of the Construction Process

1.2 THE PARTIES IN CONSTRUCTION PROJECTS

1.201 Web of Relationships
1.202 Conflicting Interests and the Role of the Construction Lawyer
1.203 Owner
1.204 Design Professional
1.205 General Contractor
1.206 Subcontractors

1.3 THE ATTORNEY

1.301 Educating the Client
1.302 The Value of Experience
1.303 Litigation

1.4 DRAFTING THE CONTRACT

1.5 RECURRING THEMES

1.501 Unexpected Problems
1.502 Documentation System
1.503 Avoiding or Minimizing Litigation Expenses

1.6 SUCCESSFUL STRATEGIES

1.601 Checklist for Reviewing Contract
1.602 Reminders to Client
1.603 Avoiding or Prevailing in Litigation

1.7 CONSTRUCTION DISPUTES

1.701 Potential Litigants
1.702 Grounds for Dispute
1.703 Contract Disputes
1.704 Common Factors in Disputes

APPENDIX 1-1: CONSTRUCTION CONTRACT ANALYSIS FORM

CHAPTER 2: LICENSING OF CONTRACTORS, ARCHITECTS, AND PROFESSIONAL ENGINEERS  (back to top)

2.1 INTRODUCTION

2.101 Administration of Licensing Requirements
2.102 Compliance with Licensing Requirements

2.2 LICENSING OF CONTRACTORS

2.201 In General
2.202 Virginia State Contractor License
2.203 Local Jurisdiction Contractor Licenses

2.3 LICENSING OF ARCHITECTS AND PROFESSIONAL ENGINEERS

2.301 In General
2.302 Architects
2.303 Professional Engineers
2.304 Penalties for Failing to Comply with Licensing Requirements

2.4 DISCIPLINARY PROCEEDINGS BEFORE THE BOARD FOR CONTRACTORS AND APELSCIDLA

2.401 Governing Law and Procedure
2.402 Appeal of Board’s Decision

CHAPTER 3: BUILDING CODES, PERMITS, ZONING, AND SPECIAL ISSUES  (back to top)

3.1 BUILDING CODES AND PERMITS

3.101 Uniform Statewide Building Code
3.102 State Building Code Technical Review Board
3.103 Building Permits

3.2 BOARD OF ZONING APPEALS

3.201 In General
3.202 Formation and Appointment
3.203 Powers and Duties
3.204 Appeal Procedures

3.3 AMERICANS WITH DISABILITIES ACT (ADA)

3.301 Federal Provisions
3.302 State Provisions: Virginians with Disabilities Act

3.4 CONDOMINIUM CONSTRUCTION

3.401 In General
3.402 Applicability of Building Codes and Zoning Ordinances
3.403 Warranties
3.404 Suits or Claims
3.405 Mechanics’ Liens

CHAPTER 4: DESIGN PROFESSIONALS  (back to top)

4.1 ARCHITECTURE AND ENGINEERING PRACTICE

4.101 Licensing and Regulation
4.102 Business Entities Through Which Architecture and Engineering May Be Practiced
4.103 Ethical Requirements
4.104 Use of Professional Seal
4.105 Standard of Care

4.2 DELIVERY OF PROFESSIONAL SERVICES

4.201 Methods of Delivery
4.202 Standard Form Versus Custom Agreement
4.203 Contract Issues

4.3 DISPUTES INVOLVING ARCHITECTURAL OR ENGINEERING SERVICES

4.301 Dispute Resolution Mechanisms
4.302 Common Legal Issues

CHAPTER 5: CONTRACT DELIVERY SYSTEMS  (back to top)

5.1 OVERVIEW

5.2 PROCUREMENT METHODOLOGY

5.201 Private Sector Options
5.202 Procurement Methods Under the Virginia Public Procurement Act
5.203 Design-Build or Construction Management Contracts
5.204 Public-Private Partnerships in Virginia

5.3 PROJECT DELIVERY SYSTEMS

5.301 Conventional Project Delivery
5.302 “Multi-Prime” Project Delivery
5.303 Construction Manager Project Delivery
5.304 Design-Build
5.305 Design-Build-Operate
5.306 Engineer-Procure-Construct

5.4 CONTRACT FORMATION

5.401 Basic Requirements
5.402 Standard Form Agreements
5.403 Key Provisions of Standard Form Agreements
5.404 Rules of Contract Interpretation
5.405 Organizing the Project Team
5.406 Subcontract Options
5.407 Licensing Issues

5.5 ASSURANCE OF PROJECT PERFORMANCE

5.501 Warranty Considerations
5.502 Compliance

5.6 REMEDIES FOR PERFORMANCE SHORTFALLS AND FAILURES

5.601 In General
5.602 Breach of Contract
5.603 Liability for Defects or Failures

5.7 CONTRACTOR DEFENSES

5.701 Compliance with Plans
5.702 Interference, Impossibility of Performance, and Waiver
5.703 Opportunity to Cure
5.704 Liability of Subcontractors and Indemnification
5.705 Statutes of Limitation and Repose
5.706 Economic Loss Doctrine and Consequential Damages

CHAPTER 6: BIDDING ON FEDERAL CONSTRUCTION CONTRACTS  (back to top)

6.1 INTRODUCTION

6.2 FEDERAL CONSTRUCTION LAW PRINCIPLES

6.201 Definitions
6.202 Fiscal Considerations
6.203 Preparing the Bid

6.3 CONTRACT METHODS

6.301 Sealed Bidding
6.302 Negotiated Procurements
6.303 Job Order Contracts
6.304 Base Engineer Support Contracts
6.305 Design-Build Contracts
6.306 Commercial Item Procurement

6.4 CONTRACT TYPES

6.401 In General
6.402 Firm-Fixed-Price Contracts
6.403 Fixed-Price Contracts with Economic Price Adjustments
6.404 Cost-Reimbursement Contracts

6.5 BIDDING ON FEDERAL CONSTRUCTION CONTRACTS

6.501 Understanding the Process
6.502 Determining the Nature of the Work
6.503 Understanding the Relevant Solicitation Clauses and Requirements
6.504 Pre-Solicitation Conferences
6.505 Bid/Proposal Preparation Time
6.506 Responsiveness of Bid
6.507 Bidding Responsibility
6.508 Performance Evaluation Reports
6.509 Price Evaluation
6.510 Affirmative Action Requirements
6.511 Compliance with E-Verify Program
6.512 Small Business Preferences
6.513 Offering Construction Requirements Under 8(a) Program

6.6 BIDDING FEDERAL ARCHITECT-ENGINEER PROJECTS

6.601 In General
6.602 Professional Services
6.603 Agency Criteria
6.604 Final Selection Decision
6.605 Contractor Liability
6.606 Preference for Service-Disabled Veteran-Owned Small Businesses

6.7 BID PROTESTS

6.701 In General
6.702 Filing a Protest
6.703 Agency Decisions
6.704 GAO Jurisdiction
6.705 Comptroller General
6.706 Federal Court of Claims

6.8 CONCLUSION

ADDENDUM: THE AMERICAN RECOVERY AND REINVESTMENT ACT

APPENDIX 6-1: SOLICITATION, OFFER, AND AWARD OF CONTRACT

APPENDIX 6-2: PERFORMANCE EVALUATIONCCONSTRUCTION CONTRACT

APPENDIX 6-3: ABSTRACT OF OFFERS

APPENDIX 6-4: ARCHITECT-ENGINEER CONTRACT

APPENDIX 6-5: PERFORMANCE EVALUATION—ARCHITECT-ENGINEER CONTRACT

CHAPTER 7: STATE AND LOCAL GOVERNMENT CONTRACTS  (back to top)

7.1 INTRODUCTION

7.2 SOVEREIGN IMMUNITY

7.201 Purpose and Scope of Doctrine
7.202 Waiver of Immunity in State Courts
7.203 Waiver of Immunity in Federal Courts

7.3 VIRGINIA PUBLIC PROCUREMENT ACT (VPPA)

7.301 Purpose
7.302 Applicability
7.303 Implementation

7.4 METHODS OF PROCUREMENT

7.401 Governing Law
7.402 “Construction” Defined
7.403 “Nonprofessional Service” Contracts
7.404 Competitive Sealed Bidding
7.405 Competitive Negotiation
7.406 Sole Source Procurement
7.407 Emergency Procurement
7.408 Small Purchase Procedures
7.409 Cooperative Procurement

7.5 PREQUALIFICATION

7.501 Purpose and Scope of Process
7.502 Procedure
7.503 Denial

7.6 OPENING AND EVALUATION OF BIDS

7.601 Bid Opening
7.602 Bid Evaluation
7.603 Unfavorable Determination of Responsibility

7.7 PROCEDURE UPON DETERMINATION OF INELIGIBILITY OR DISQUALIFICATION

7.701 Notification, Factual Support, and Opportunity to Rebut
7.702 Final Evaluation
7.703 Appeal of Adverse Determination

7.8 DECISION AND NOTICE TO AWARD

7.801 Posting of Notice of Award
7.802 Concurrent Posting With Notice of Acceptance

7.9 AWARD TO, OR NEGOTIATION WITH, THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER

7.901 General Requirement
7.902 Bids That Exceed Project Budget

7.10 CANCELLATION OR REJECTION OF BIDS; WAIVER OF MINOR DEFECTS OR VARIATIONS

7.1001 Right to Cancel or Reject
7.1002 Waiver of “Informalities”

7.11 PROTEST OF AWARD OR DECISION TO AWARD

7.1101 Right to Protest
7.1102 Timing of Protests
7.1103 Form and Basis of Protest
7.1104 Relief Available to Losing Bidder/Offeror

7.12 WITHDRAWAL OF BIDS

7.1201 In General
7.1202 Withdrawal Permitted for Clerical Error Only
7.1203 Withdrawal Procedure
7.1204 Appeal of Decision Denying Withdrawal

7.13 PREFERENCES

7.14 BID, PERFORMANCE, AND PAYMENT BONDS

7.1401 In General
7.1402 Bid Bonds
7.1403 Performance and Payment Bonds
7.1404 Actions on Performance and Payment Bonds
7.1405 Alternative Forms of Security

7.15 CONSTRUCTION CONTRACTS OR DELIVERY SYSTEMS

7.1501 Authorized Delivery Systems
7.1502 General Contractor (Design-Bid-Build)
7.1503 Design-Build Contracts
7.1504 Construction Management Contracts
7.1505 Pricing Arrangements

7.16 MINORITY PARTICIPATION AND GOALS

7.1601 Overview
7.1602 Required Contract Provisions
7.1603 Programs to Encourage Participation

7.17 EMPLOYMENT OF EX-OFFENDERS

7.18 VPPA CONSTRUCTION CONTRACT DOCUMENTS

7.1801 In General
7.1802 Prompt Payment
7.1803 Modifications
7.1804 Site Conditions
7.1805 Contract Time
7.1806 Project Delays and Delay Claims
7.1807 Terminating the Contract
7.1808 Prohibitions on Employing Unauthorized Alien Workers

7.19 VPPA CLAIMS AND CLAIM PROCEDURES

7.1901 In General
7.1902 Notice of Intent to File Claim
7.1903 Contract Claims Procedures
7.1904 Administrative Procedures
7.1905 Legal Actions
7.1906 Alternative Dispute Resolution

7.20 VDOT CONTRACTS, CLAIMS, AND CLAIMS PROCEDURES

7.2001 In General
7.2002 Contracts
7.2003 Claims Procedures
7.2004 Settlement of Claims Against VDOT

7.21 VIRGINIA PUBLIC-PRIVATE EDUCATION FACILITIES AND INFRASTRUCTURE ACT

7.2101 Purpose
7.2102 Initiating a PPEA Project
7.2103 PPEA Procedures
7.2104 Notice
7.2105 Review and Evaluation of Proposal
7.2106 Comprehensive Agreement

7.22 VIRGINIA PUBLIC-PRIVATE TRANSPORTATION ACT

7.2201 Purpose
7.2202 Initiating a PPTA Project
7.2203 PPTA Procedures
7.2204 Notice
7.2205 Review and Evaluation of Proposal
7.2206 Interim and Comprehensive Agreements

7.23 VIRGINIA FRAUD AGAINST TAXPAYERS ACT

7.2301 In General
7.2302 Prohibited Acts
7.2303 Cooperation by Offender
7.2304 Qui Tam Actions
7.2305 Whistleblower Protection

7.24 VIRGINIA GOVERNMENTAL FRAUDS ACT

7.2401 Conduct Prohibited by Act
7.2402 Certification of Compliance

7.25 CONFLICTS OF INTEREST AND ETHICS IN PUBLIC CONTRACTING

7.2501 Virginia’s Public Procurement Statutes
7.2502 The Conflict of Interests Act
7.2503 Ethics in Public Contracting Laws

CHAPTER 8: FEDERAL CONSTRUCTION CONTRACTS  (back to top)

8.1 POLICIES AND PROCEDURES

8.101 Federal Acquisition Regulation
8.102 Agency Specific Acquisition Regulations
8.103 Additional Governing Rules

8.2 PERFORMANCE

8.201 Changes
8.202 Differing Site Conditions
8.203 Delays and Suspension of Work
8.204 Termination

8.3 PAYMENT

8.301 Progress Payments
8.302 Prompt Payment

8.4 DISPUTE RESOLUTION

8.401 Claims
8.402 Litigation
8.403 Alternative Dispute Resolution

8.5 FALSE CLAIMS

8.501 False Claims Act
8.502 Qui Tam Lawsuits

CHAPTER 9: DRAFTING ISSUES IN CONSTRUCTION CONTRACTS  (back to top)

9.1 CONSTRUCTION CONTRACTS IN GENERAL

9.101 General Rules of Contract Apply
9.102 Meeting of the Minds
9.103 Mutuality
9.104 Quantum Meruit
9.105 Force Majeure
9.106 Contracts of Adhesion and Unconscionable Contracts or Terms
9.107 Standard Forms

9.2 CHANGING THE CONTRACT

9.201 Common Reasons for Changes
9.202 Amendments
9.203 Change Orders
9.204 Additional Work
9.205 Waiver
9.206 Other Changes
9.207 Constructive Change
9.208 Cardinal Change

9.3 ESCALATION CLAUSES

9.301 Adjustments for Changes in Costs
9.302 Using Price Indexes to Calculate Cost Changes

9.4 CONTRACTS WITH SUBCONTRACTORS

9.401 In General
9.402 Reliance/Promissory Estoppel
9.403 Meeting of the Minds
9.404 Requirement of Privity
9.405 Pass-Through Claims
9.406 Liquidating Agreements

9.5 WARRANTIES

9.501 Express Warranties
9.502 Common Law Implied Warranties
9.503 Statutory Implied Warranties on New Construction
9.504 UCC Implied Warranty of Fitness for a Particular Purpose
9.505 UCC Implied Warranty of Merchantability
9.506 Limitation of Express Warranty
9.507 Disclaimer and Modification of Implied UCC Warranties
9.508 Disclaimer and Modification of Implied Statutory Warranties

9.6 STATUTES OF LIMITATION AND REPOSE

9.601 Statutes of Limitation
9.602 Statute of Repose

9.7 INDEMNITY

9.701 In General
9.702 Implied Indemnity
9.703 Express Indemnity Clauses

APPENDIX 9-1: SYNOPSIS OF AIA A-SERIES DOCUMENTS

APPENDIX 9-2: EXAMPLE OF ESCALATION PROCEDURES

CHAPTER 10: CHANGES AND EXTRA WORK  (back to top)

10.1 INTRODUCTION

10.2 PURPOSE OF THE “CHANGES” CLAUSE

10.201 In General
10.202 Contractor’s Duty to Perform Changes
10.203 Limitations on Use of the Changes Clause

10.3 TYPICAL CHANGES CLAUSE

10.301 Private Contracts
10.302 Federal Government Contracts
10.303 Subcontracts
10.304 Highway Construction Contracts

10.4 TYPES OF CHANGES

10.401 In General
10.402 Directed Changes
10.403 Constructive Changes
10.404 “Cardinal” Changes
10.405 Minor Changes

10.5 NOTICE AND CLAIM SUBMISSION REQUIREMENTS

10.501 Notice
10.502 Claim Submission

10.6 AUTHORITY TO ORDER CHANGES

10.601 Express Authority
10.602 Ratification
10.603 Implied Authority
10.604 Custom and Usage

10.7 VALUE ENGINEERING CLAUSES

10.701 Federal Construction Contracts
10.702 Non-Federal Construction Contracts

CHAPTER 11: UNFORESEEN WORKSITE CONDITIONS AND RELATED MATTERS  (back to top)

11.1 BACKGROUND

11.101 Common Law Rule
11.102 Exceptions to Common Law Rule
11.103 Purpose of Differing Site Conditions Clauses

11.2 DIFFERING SITE CONDITIONS CLAUSES IN FEDERAL AND STANDARD CONTRACTS

11.201 Federal Clause
11.202 AIA Clause
11.203 AGC Clause

11.3 DIFFERING SITE CONDITIONS CLAUSES IN VIRGINIA PUBLIC CONTRACTS

11.301 Virginia Department of Transportation
11.302 Other State and Local Public Entities

11.4 TYPES OF DIFFERING SITE CONDITIONS

11.401 In General
11.402 Type I
11.403 Type II

11.5 NOTICE REQUIREMENTS

11.501 Contractual Notice Clauses
11.502 Differing Site Condition Clauses

11.6 DISCLAIMERS AND SITE VISIT REQUIREMENTS

11.601 In General
11.602 Precedence of Differing Site Condition Clause

11.7 DIFFERING SITE CONDITIONS VERSUS ESTIMATED QUANTITIES AND UNIT PRICES

11.701 Unit Prices Subject to Differing Site Conditions Clause
11.702 Work Estimate Variation as Differing Site Condition
11.703 Recovery of Additional Compensation or Unit Costs

11.8 CONTRACTOR’S RIGHT TO RELY ON OWNER’S REPRESENTATIONS

11.801 Reliance on “Indications” in the Contract Documents
11.802 Reliance on Data in Geotechnical Reports

11.9 CONTRACTUAL REMEDIES

11.901 Remedy May Include Delay Damages
11.902 Remedy for Refusal to Adjust Contract

11.10 PRACTICE TIPS

11.1001 What Should Be Done Before the Contract Is Signed?
11.1002 What Should Be Done During Performance?

11.11 CONCLUSION

11.1101 Understanding the Rationale of the Differing Site Condition Clause
11.1102 Compliance With Notice and Other Contract Requirements

CHAPTER 12: TERMINATION OF CONTRACTS  (back to top)

12.1 INTRODUCTION

12.101 Effect and Grounds of Termination
12.102 Types of Termination and Available Remedies
12.103 Common Law Rights to Termination of a Contract
12.104 Economic and Practical Considerations
12.105 Standard Form Contract Clauses
12.106 Notice Requirements

12.2 TERMINATION FOR CONVENIENCE

12.201 Considerations
12.202 Federal Government Terminations for Convenience
12.203 State Construction Contract Terminations for Convenience

12.3 TERMINATION FOR DEFAULT

12.301 In General
12.302 Types of Contractor Defaults
12.303 Contractor Defenses to Default
12.304 Damages
12.305 Post-Termination Obligations

12.4 WRONGFUL TERMINATION

12.401 In General
12.402 Damages for Wrongful Termination
12.403 Conversion Clauses

APPENDIX 12-1: AIA DOCUMENT A201CGENERAL CONDITIONS (2007)-TERMINATION PROVISIONS

APPENDIX 12-2: EJCDC DOCUMENT C-700CGENERAL CONDITIONS (2002)-TERMINATION PROVISIONS

APPENDIX 12-3: DBIA DOCUMENT 535CGENERAL CONDITIONS (1998)-TERMINATION PROVISIONS

APPENDIX 12-4: FEDERAL ACQUISITIONS REGULATIONS (Jan. 1, 2008)-TERMINATION PROVISIONS

APPENDIX 12-5: DGS—FORM DGS-30-054—GENERAL CONDITIONS (2005)-TERMINATION PROVISIONS

APPENDIX 12-6: VDOT ROAD AND BRIDGE SPECIFICATIONS (2007)-TERMINATION PROVISIONS

CHAPTER 13: IMMIGRATION AND LABOR LAW  (back to top)

13.1 IMMIGRATION OVERVIEW

13.101 Issues, Reform Efforts, and Enforcement
13.102 Immigration Terminology

13.2 EMPLOYMENT AUTHORIZATION AND VISA ISSUES

13.201 The Concept of Employment Authorization
13.202 Nonimmigrant Visa Options
13.203 The “Lawful Permanent Resident” (LPR) Process

13.3 IMMIGRATION LAW COMPLIANCE

13.301 In General
13.302 Basic Obligations Under the Immigration Reform and Control Act
13.303 The I-9 Process

13.4 INDEPENDENT CONTRACTORS

13.401 “Employee” Versus “Independent Contractor”
13.402 Construction Contracts

13.5 ANTICIPATING ENFORCEMENT ACTIONS

13.501 ICE Enforcement Strategy
13.502 Internal Audits, Compliance Policies, and Best Practices
13.503 Contracts and Contract Provisions
13.504 SSA No-Match Letters; Constructive Knowledge
13.505 E-Verify
13.506 ICE “IMAGE” Program
13.507 Future Developments

13.6 LABOR AND EMPLOYMENT ISSUES

13.601 Labor and Employment Law Fundamentals
13.602 Federal Laws Relating to Employment
13.603 IRCA’s Anti-Discrimination Provisions

APPENDIX 13-1: FORM I-9C EMPLOYMENT ELIGIBILITY VERIFICATION

CHAPTER 14: DAMAGES  (back to top)

14.1 FACTORS IN CALCULATING DAMAGES

14.101 In General
14.102 Determining Whether the Cause of Action Is for Breach of Contract or Tort
14.103 The Economic Loss Rule
14.104 Direct Versus Consequential Damages
14.105 Punitive Damages
14.106 Limiting Damages Awarded Based on the Duty to Mitigate Losses
14.107 Awarding Nominal Damages

14.2 OWNER’S DAMAGES

14.201 Damages for Contractor’s Defective or Incomplete Performance
14.202 Owner’s Damages Due to Contractor’s Delay

14.3 CONTRACTOR’S DAMAGES

14.301 In General
14.302 Damages for Changes and Defective Plans or Specifications
14.303 Damages for Delay or Schedule Disruption by Owner
14.304 Damages for Termination for Owner’s Convenience
14.305 Damages for Wrongful Termination

14.4 CONCURRENT OWNER AND CONTRACTOR DELAY

14.5 PROOF OF DAMAGES

14.501 Standard of Proof
14.502 Actual Cost
14.503 Cost Estimates
14.504 Non-recoverable Damages

CHAPTER 15: PROJECT SCHEDULING, DELAYS, AND TIME EXTENSIONS  (back to top)

15.1 INTRODUCTION

15.2 PROJECT SCHEDULING

15.201 Purpose and Constraints
15.202 Scheduling Techniques
15.203 Particular Contracts’ Scheduling Provisions

15.3 PROJECT DELAYS

15.301 Delays, Time Extensions, and Equitable Adjustments
15.302 Causes and Categories of Delays

15.4 MEASURING THE DELAY

15.401 Schedule Delay Analysis Methods
15.402 Industry Methods to Measure Time Delay
15.403 Effect of Concurrency in Measuring Time Delay
15.404 “Float” and the Measure of Time Delay
15.405 Disruption and Loss of Productivity

15.5 MEASURING THE COST OF DELAY

15.501 Contractor’s Damages for Delay
15.502 Owner’s Damages for Delay
15.503 Limitations on Delay Damages
15.504 Mitigation

15.6 ACCELERATION

15.601 In General
15.602 Directed Acceleration
15.603 Constructive Acceleration
15.604 Acceleration Costs
15.605 Burden of Proof

15.7 RIGHT TO FINISH EARLY

15.701 Basis of Right in Federal Contract Law
15.702 Recovery of Damages for Delayed Early Completion
15.703 Early Completion Delayed by Subcontractor or Supplier
15.704 Documentation of Plans for Early Completion

15.8 NO DAMAGES FOR DELAY CLAUSES

15.801 In General
15.802 Virginia Public Construction Contracts
15.803 Private Contracts

CHAPTER 16: BOND CLAIMS ON PUBLIC PROJECTS  (back to top)

16.1 INTRODUCTION

16.101 Risk Basis for Performance and Payment Bond Requirements
16.102 Federal and State “Miller Act” Bonds

16.2 GENERAL PROVISIONS

16.201 Required Bonds
16.202 Covered Contracts
16.203 Covered Parties

16.3 BRINGING SUIT

16.301 Payment Bond Actions
16.302 Performance Bond Actions

CHAPTER 17: CONTRACTOR RIGHTS AND REMEDIES  (back to top)

17.1 OWNER DEFAULT

17.101 The Law of Default in Virginia
17.102 Common Law Default
17.103 Owner Default Under Industry Standard Construction Contracts

17.2 CONTRACTOR REMEDIES UPON OWNER DEFAULT

17.201 Common Law Rights and Remedies
17.202 Remedies Under Industry Standard Construction Contracts
17.203 Time Limitations

17.3 FILING CLAIMS

17.301 Common Law Claims
17.302 Claims Under the AIA Contract Documents
17.303 Claims Under the AGC Contract Documents
17.304 Claims Under the EJCDC Contract Documents
17.305 Claims Under Virginia Public Procurement Contracts
17.306 Claims Under Contracts With Federal Government

17.4 OWNER DEFENSES

17.401 Contract Terms That Excuse Performance
17.402 Contract Terms That Transfer or Limit Liability
17.403 Bankruptcy Filings

INDEX

Volume 2

CHAPTER 18: MECHANICS’ LIENS  (back to top)

18.1 IN GENERAL

18.101 Statutory Creation
18.102 Statutory Construction
18.103 Preparing the Case

18.2 WHO MAY CLAIM THE LIEN

18.201 Identifying a Mechanic’s Lien Claimant
18.202 Laborers and Suppliers
18.203 Architects, Engineers, and Surveyors
18.204 General Contractors and Subcontractors

18.3 PROPERTY SUBJECT TO THE LIEN

18.301 In General
18.302 Public Property
18.303 Multiple Contracts, Lots, Units, or Buildings
18.304 Utility and Paving Contractors
18.305 Leased Property
18.306 Condominiums
18.307 Time-Share Property

18.4 PERFECTING THE LIEN

18.401 The 90-Day Rule
18.402 “Completed or Otherwise Terminated”
18.403 Replacement Materials; Open Accounts
18.404 Certification of Mailing

18.5 MECHANICS’ LIEN AGENTS

18.501 In General
18.502 Designating the Mechanics’ Lien Agent
18.503 Posting the Building Permit
18.504 Sufficiency of the Building Permit
18.505 Notice Requirements
18.506 Evidence of Receipt
18.507 Inaccurate Description of the Property
18.508 Time Period for Notice
18.509 Notice After the 30-Day Period
18.510 Determining Whether a Proper Building Permit Has Been Issued
18.511 Amendment of Building Permit
18.512 Exceptions to the Requirement to Notify the Mechanics’ Lien Agent

18.6 AFFIDAVIT VERIFYING PAYMENT FOR LABOR AND MATERIALS

18.601 Purchaser to Be Provided Affidavit or Statement at Settlement
18.602 Penalty for Failure to Provide

18.7 THE 150-DAY RULE

18.701 Statutory Basis of Rule
18.702 Cases Construing the Rule

18.8 STATUTORY FORMS FOR THE MEMORANDUM OF LIEN

18.801 The Contractor’s Memorandum
18.802 The Subcontractor’s Memorandum
18.803 Statement Declaring Intention to Claim the Benefit of a Lien Required in Memorandum of Mechanic’s Lien

18.9 DEFENSES

18.901 Owner’s Priority
18.902 Limitation on the Amount Claimed by Subcontractors and Sub-Subcontractors
18.903 Licensure of Claimant

18.10 PERSONAL LIABILITY OF OWNER OR GENERAL CONTRACTOR

18.1001 Remedy Created by Section 43-11 of the Virginia Code
18.1002 Creation of Personal Liability of Owner and General Contractor
18.1003 Priority of the Section 43-11 Claim
18.1004 Owner’s Right to Setoff for Work Not Completed by General Contractor
18.1005 Limitations on Owner’s or General Contractor’s Liability

18.11 ENFORCEMENT OF THE LIEN

18.1101 Complaint
18.1102 Intervening Petition by Other Lienholders
18.1103 Parties
18.1104 When the Suit Must Be Brought
18.1105 Automatic Stay in Bankruptcy
18.1106 Scope of Jurisdiction
18.1107 Sale of the Property
18.1108 Challenging the Validity of Lien
18.1109 Court-Ordered Release
18.1110 Diverting Funds

18.12 PRIORITY OF LIENS

18.1201 In General
18.1202 Priority Over Deeds of Trust
18.1203 Priority Over Security Interest in Accounts Receivable
18.1204 Priority Among Mechanics’ Liens
18.1205 Removal of Materials Affixed to the Structure
18.1206 Federal Liens

18.13 ALTERNATIVES TO MECHANICS’ LIENS

18.1301 Civil Suit
18.1302 Statutory Alternatives
18.1303 Threat of Filing
18.1304 Contract Provisions

18.14 MISCELLANEOUS CONSIDERATIONS

18.1401 Assignment
18.1402 Waiver
18.1403 Slander of Title
18.1404 Forfeiture
18.1405 Release or Discharge

18.15 PRACTICAL EFFECTS OF FILING A LIEN

18.1501 Effect on the Owner
18.1502 Effect on the Claimant’s Business
18.1503 Effect on the General Contractor
18.1504 Effect on the Construction Lender
18.1505 Effect on the Title Agency

APPENDIX 18-1: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY GENERAL CONTRACTOR UNDER SECTION 43-5 OF THE VIRGINIA CODE

APPENDIX 18-2: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY SUBCONTRACTOR UNDER SECTION 43-7 OF THE VIRGINIA CODE

APPENDIX 18-3: MEMORANDUM FOR MECHANIC’S LIEN CLAIMED BY SUBSUBCONTRACTOR UNDER SECTION 43-9 OF THE VIRGINIA CODE

APPENDIX 18-4: MILLER ACT SUIT TO ASSERT CLAIM AGAINST BOND ON FEDERAL BUILDING OR PROJECT

APPENDIX 18-5: SUIT TO ASSERT CLAIM AGAINST BOND ON STATE BUILDING OR PROJECT

APPENDIX 18-6: DISCLOSURE STATEMENT FOR SITE DEVELOPMENT IMPROVEMENTS

APPENDIX 18-7: NOTICE TO MECHANICS’ LIEN AGENT PURSUANT TO SECTION 43-4.01 OF THE VIRGINIA CODE

APPENDIX 18-8: COMPLAINT TO ENFORCE MECHANIC’S LIEN

APPENDIX 18-9: STATEMENT OF ACCOUNT

APPENDIX 18-10: PETITION TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE

APPENDIX 18-11: BOND TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE

APPENDIX 18-12: DECREE TO BOND OFF LIEN UNDER SECTION 43-71 OF THE VIRGINIA CODE

CHAPTER 19: BANKRUPTCY  (back to top)

19.1 THE BANKRUPTCY SYSTEM: AN OVERVIEW

19.101 Introduction
19.102 Commencement of Case
19.103 Bankruptcy Cases Under Chapters 7, 11, and 13
19.104 The Bankruptcy Estate

19.2 THE AUTOMATIC STAY

19.201 A Key Protection for Debtors
19.202 Exceptions to the Automatic Stay
19.203 Relief from the Automatic Stay

19.3 EXECUTORY CONTRACTS

19.301 Assumption and Assignment
19.302 Obligations of the Non-debtor Party
19.303 Default and Cure
19.304 Reasonable Assurance of Future Performance
19.305 Other Contract Issues

19.4 MECHANICS’ LIEN RIGHTS AND REMEDIES

19.401 Perfecting of Lien Not Prevented by Automatic Stay
19.402 Effect of Stay on Suit to Enforce Lien
19.403 Lien Claimant’s Rights as Unsecured Creditor
19.404 Claims Based on Constructive Trust Premise

19.5 PREFERENCE CLAIMS AND DEFENSES

19.501 Objectives
19.502 Elements
19.503 Principal Defenses

19.6 CONTRACT BALANCES AND BOND CLAIM ISSUES

19.601 Competitors to Funds
19.602 The Owner
19.603 The Surety
19.604 The Lender

19.7 CONCLUSION

CHAPTER 20: INSURANCE COVERAGE  (back to top)

20.1 INTRODUCTION AND GENERAL CONSIDERATIONS

20.101 Overview of Insurance Options
20.102 Components of Policies

20.2 COMMERCIAL GENERAL LIABILITY POLICIES

20.201 Insurer’s Duties to Defend and Indemnify
20.202 Who Is Insured
20.203 Bodily Injury and Property Damage Coverage
20.204 Common Exclusions
20.205 Other Types of Coverage
20.206 The Insured’s Obligations

20.3 OTHER TYPES OF LIABILITY POLICIES

20.301 In General
20.302 Errors and Omissions Policies for Construction Professionals
20.303 Workers’ Compensation Insurance
20.304 Project-Specific Policies; Wrap-up Insurance

20.4 BUILDER’S RISK POLICIES

20.401 General Scope
20.402 Property and Risks Covered
20.403 Additional Losses Covered
20.404 Fortuity Requirement; Known Loss
20.405 Exclusions
20.406 Ensuing Loss Exception
20.407 Duration and Termination of Coverage
20.408 Insured’s Obligations

20.5 ADDITIONAL CONSIDERATIONS

20.501 In General
20.502 Certificates of Insurance
20.503 Impact of Contracts to Procure Insurance

20.6 CONCLUSION

CHAPTER 21: OCCUPATIONAL SAFETY AND HEALTH ACT  (back to top)

21.1 SCOPE OF CHAPTER

21.2 INTRODUCTION AND BACKGROUND

21.201 Purpose and Methods of Act
21.202 Extent of Statutory Authority

21.3 OVERVIEW OF OSHA AND VOSH

21.301 Federal Occupational Safety and Health Act
21.302 Virginia Labor and Employment Code and Department of Labor and Industry Regulations
21.303 Employer’s Duties Under OSHA
21.304 Standards—Federal Identical Standards
21.305 Standards—Unique Virginia Standards

21.4 DUTIES AND STANDARDS

21.401 Duty to Comply
21.402 Elements of Proof
21.403 General Duty Clause Violation

21.5 RECORDKEEPING AND REPORTING

21.501 Virginia Employer Recordkeeping Requirements
21.502 Employers Subject to Recordkeeping Requirements
21.503 Forms To Be Retained
21.504 Employers Exempted from Recordkeeping Requirements

21.6 ENFORCEMENT OF OSHA REQUIREMENTS

21.601 Right to Make a Complaint
21.602 Contents of Complaint
21.603 Evaluation of Complaint
21.604 Complaint-Related Inspections
21.605 Advance Notice of Inspection
21.606 Walkthroughs
21.607 Right to Inspect
21.608 Employer Right of Accompaniment
21.609 Prohibition Against Retaliation
21.610 Trade Secrets Protection
21.611 Types of Inspections

21.7 ADMINISTRATIVE SEARCH WARRANTS

21.701 Application for Warrant
21.702 Probable Cause
21.703 Supporting Affidavit
21.704 Execution of Search Warrant
21.705 Forcible Entry
21.706 Pre-Enforcement Challenge to Warrant
21.707 Post-Enforcement Relief

21.8 CITATIONS AND PENALTIES

21.801 Issuing Citation
21.802 Contents of Citation
21.803 Time Limitation
21.804 Civil Penalties
21.805 Civil Penalty Determination
21.806 Applying Factors Based on VOSH Field Operations Manual
21.807 Injunctive Relief for Imminent Dangers
21.808 Payment of Civil Penalties

21.9 ABATEMENT

21.901 Citation for Failure to Abate
21.902 Service of Notice of Proposed Penalty
21.903 Calculation of Additional Penalties

21.10 CONTESTS, NEGOTIATIONS, AND LEGAL PROCEEDINGS

21.1001 Notice of Contest
21.1002 Settlement Before Notice of Contest
21.1003 Proceedings After Notice of Contest
21.1004 Settlement After Notice of Contest
21.1005 Settlement Negotiations
21.1006 Informal Conference
21.1007 Settlement Without Informal Conference
21.1008 Amendment of Citation, Order of Abatement, or Proposed Penalty
21.1009 Judicial Proceedings
21.1010 Discovery     
21.1011 DOLI Representation
21.1012 Proceedings to Be Public Record
21.1013 Decision of the Court
21.1014 Appeals
21.1015 Common Substantive Affirmative Defenses
21.1016 Common Procedural Affirmative Defenses
21.1017 Effect of OSHA Citation, Settlement, or Judgment on Other Civil Proceedings

21.11 MULTI-EMPLOYER WORKSITE ISSUES

21.1101 Introduction
21.1102 OSHA Citations on Multi-Employer Worksites
21.1103 Determination of Multi-Employer Liability

APPENDIX 21-1: CHECKLIST FOR DEFENDING AN OSHA CITATION

APPENDIX 21-2: OSHA FORMS 300 AND 300A—LOG OF OCCUPATIONAL INJURIES AND ILLNESSES

APPENDIX 21-3: OSHA FORM 301—INCIDENT REPORT

CHAPTER 22: EFFECTIVE TRIAL PRESENTATIONS  (back to top)

22.1 INTRODUCTION

22.2 GATHERING INFORMATION AND FRAMING THE ISSUES

22.201 Early Preparation
22.202 Assumption That Case Will Go to Trial
22.203 Contract Basis of Construction Disputes
22.204 Identifying and Selecting Witnesses
22.205 Knowing the Project
22.206 “Themes” of the Case
22.207 Gathering Evidence

22.3 PREPARING FOR TRIAL

22.301 Planning the Presentation
22.302 Preparation of Witnesses
22.303 Presentation and Use of Exhibits

22.4 MANAGING LITIGATION

22.401 Communication With Client
22.402 Document Organization
22.403 Staffing the Case
22.404 Client Involvement

22.5 USE OF EXPERTS

22.501 In General
22.502 When Expert Witnesses Are Needed
22.503 Selecting an Expert
22.504 Working With the Expert
22.505 Expert’s Trial Testimony

22.6 SPECIAL EVIDENTIARY ISSUES

22.601 In General
22.602 Foundations for Admissibility
22.603 Hearsay
22.604 Best Evidence Rule
22.605 Parol Evidence Rule
22.606 Shopbook Rule
22.607 Summaries
22.608 Drawings and Sketches Other Than Project Plans
22.609 Photographic and Video Evidence
22.610 Demonstrative Evidence

CHAPTER 23: ALTERNATIVE DISPUTE RESOLUTION  (back to top)

23.1 INTRODUCTION

23.101 Overview of ADR in Virginia
23.102 Representative ADR Procedures
23.103 Increased Use of ADR in Construction Disputes
23.104 Advantages and Disadvantages of ADR

23.2 ARBITRATION

23.201 Arbitration Practice in Virginia
23.202 Arguments for Arbitration of Construction Cases
23.203 Virginia Uniform Arbitration Act
23.204 Federal Arbitration Act
23.205 Use of Arbitration in Construction Disputes

23.3 MEDIATION

23.301 Virginia Statutes and Regulations
23.302 Attorneys Serving as Mediators—Facilitative Versus Evaluative Mediation
23.303 The Mediation Process

23.4 ADR PROCEDURES USED BY VDOT

23.401 Dispute Review Boards
23.402 Mediation
23.403 Partnering

23.5 ADR PROVIDERS

23.501 Sources of Services
23.502 List of Providers

23.6 CONCLUSION

23.601 Arbitration Versus Litigation
23.602 Mediation as Preferred ADR Method
23.603 Other ADR Methods

APPENDIX 23-1: SAMPLE SCHEDULING AND PROCEDURE ORDER

CHAPTER 24: ETHICS  (back to top)

24.1 INTRODUCTION

24.2 BASIC DUTIES TO CLIENTS

24.201 Competence
24.202 Diligence
24.203 Communication
24.204 Loyalty
24.205 Confidentiality

24.3 CREATING AND ENDING THE ATTORNEY-CLIENT RELATIONSHIP

24.301 In General
24.302 Creating the Relationship
24.303 Ending the Relationship
24.304 Withdrawal from the Relationship

24.4 CONFLICTS OF INTEREST

24.401 Basic Conflicts Rules
24.402 Defining the Client
24.403 Defining Adversity
24.404 Consents

24.5 FEES AND COSTS

24.501 In General
24.502 Fees
24.503 Costs and Expenses
24.504 Trust Accounts

24.6 LITIGATION

24.601 Investigations
24.602 Fact Witnesses
24.603 Expert Witnesses
24.604 Depositions
24.605 Inadvertent Transmission of Privileged Communications
24.606 Threatening Criminal Prosecution
24.607 Settlements

24.7 LAW FIRM MANAGEMENT

24.701 Hiring Lawyers
24.702 Paralegals
24.703 Outsourcing

24.8 MARKETING

24.801 Basic Marketing Rules
24.802 Marketing Practice Areas
24.803 Marketing Honors
24.804 Marketing Past Successes
24.805 Marketing in Other States

24.9 OTHER ISSUES

24.901 In General
24.902 Doing Business with Clients
24.903 Multijurisdictional Practice
24.904 Unauthorized Practice of Law
24.905 Choosing the Applicable Ethics Rules

24.10 PROFESSIONALISM

CHAPTER 25: SICK BUILDING AND TOXIC MOLD CLAIMS  (back to top)

25.1 INTRODUCTION

25.2 SICK BUILDING SYNDROME

25.201 Sick Building Syndrome and Building-Related Illness
25.202 Causation in General
25.203 Indoor Pollutants, Chemical Contaminants, and Toxic Mold
25.204 Symptoms

25.3 MULTIPLE CHEMICAL SENSITIVITY (MCS)

25.301 Characteristics of MCS
25.302 Issues of Proof in MCS Claims

25.4 PREVENTIVE MEASURES

25.5 THEORIES OF LIABILITY

25.501 Causes of Action and Parties
25.502 Negligence
25.503 Breach of Contract
25.504 Breach of Express and Implied Warranties
25.505 Constructive Eviction
25.506 Strict Product Liability
25.507 Fraud, Misrepresentation, and the Virginia Consumer Protection Act
25.508 Recovery of Disability Benefits

25.6 DAMAGES

25.601 Scope of Recoverable Injuries and Losses
25.602 Measure of Damages

25.7 EXPERT WITNESSES

25.701 Role of Experts in Establishing Causation
25.702 Admissibility of Expert Testimony

25.8 CONCLUSION

CHAPTER 26: SUBCONTRACTORS AND SUPPLIERS  (back to top)

26.1 INTRODUCTION

26.2 STATUTORY AND REGULATORY FRAMEWORK

26.201 Licensing
26.202 Listing of Subcontractors and Suppliers
26.203 Retainage
26.204 Prompt Payment
26.205 Virginia’s Mechanics’ Lien Statute
26.206 Indemnification
26.207 Socio-Economic Goals and Requirements

26.3 FORMATION OF SUBCONTRACTS AND PURCHASE ORDERS

26.301 Fundamental Elements of Contract Formation
26.302 Issues in the Bidding and Quoting Process

26.4 INTERPRETATION OF SUBCONTRACTS

26.401 Express Obligations Will Be Enforced Unless Contrary to Law or Public Policy
26.402 Implied Obligations of the Subcontract

26.5 INTERPRETATION OF CONTRACTS FOR THE SALE OF GOODS

26.501 Does the Uniform Commercial Code Apply?
26.502 Additional Terms in Acceptance or Confirmation
26.503 Express Warranties
26.504 Implied Warranties
26.505 Disclaimers of Warranties and Limitations on Damages
26.506 Misuse of Goods as Bar

26.6 PAYMENT ISSUES

26.601 The Significance of Payment
26.602 Contingent Payment Clauses
26.603 Rights and Remedies for Nonpayment

26.7 DISPUTES AND CLAIMS

26.701 Failure in Performance
26.702 Pass-Through of Subcontractor/Supplier Claims
26.703 Quantum Meruit or Unjust Enrichment Claims
26.704 Doctrine of Third-Party Beneficiary
26.705 Forum Selection for Litigation
26.706 Choice of Law

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