Virginia Construction Law Deskbook

Virginia Construction Law Deskbook
Publication Date: 2019
Electronic Forms: 17
Available Formats: Print (1,532 pages, softcover, 2 volumes)
  Electronic (searchable PDF via flash drive, CD, or immediate download)
  Both Print and Electronic formats
  Online Publications Library: Access our full library of books online
with universal search and links to primary law.
Product #: 913

Information

Content Highlights:

  • Licensing of Contractors, Architects, and Engineers
  • Building Codes, Permits, Zoning, and Special Issues
  • Design Professionals
  • Contract Delivery Systems
  • Bidding on Federal Construction Contracts
  • State and Local Government Contracts
  • Federal Construction Contracts
  • Drafting Issues
  • Changes and Extra Work
  • Unforeseen Worksite Conditions
  • Termination of Contracts
  • Immigration and Labor Law
  • Damages
  • Project Scheduling, Delays, and Time Extensions
  • Bond Claims on Public Projects
  • Contractor Rights and Remedies
  • Mechanics’ Liens
  • Bankruptcy
  • Insurance Coverage
  • OSHA
  • Effective Trial Presentations
  • Alternative Dispute Resolution
  • Ethics
  • Sick Building and Toxic Mold Claims
  • Subcontractors and Suppliers
  • Public-Private Partnerships
  • Condominiums
  • Leadership in Energy and Environmental Design (LEED)

"The Virginia Construction Law Deskbook has become the 'go-to' source for information on construction law in Virginia. The chapters are well-written, substantive, and represent the contribution of construction attorneys all over the Commonwealth. Shortly after it was published, the Virginia Court of Appeals cited it as a reference in one of its decisions. It is now hard to imagine what it would be like without the Deskbook readily available as a resource in the construction practice area." - Richard F. Smith, editor emeritus

From negotiating the initial contract to ensuring that the project runs smoothly to completion, an attorney must understand the complex interrelationship of the parties to a construction project and anticipate problems in order to protect the client’s interests. Whether you represent owners, design professionals, or contractors, The Virginia Construction Law Deskbook encompasses all the areas of practice that must seamlessly come together for any project to be successful. The Deskbook is an essential reference, providing expert guidance and analysis to navigate the myriad issues faced by the construction law attorney.

This 2019 edition includes recent case law and is current through the 2019 session of the General Assembly. It includes 17 electronic forms that can be revised as needed.



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Table of Contents

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

27. Public-Private Partnerships

28. Condominiums

29. Leadership in Energy and Environmental Design (LEED)

CHAPTER 1: OVERVIEW

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


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


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

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

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


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

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

APPENDIX 6-2: ABSTRACT OF OFFERS

APPENDIX 6-3: ARCHITECT-ENGINEER CONTRACT

CHAPTER 7: STATE AND LOCAL GOVERNMENT
CONTRACTING


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 Joint and Cooperative Procurement
    7.410 Job Order Contracting
    
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 Project Identification, Screening, and Development
    7.2205 PPTA Project Procurement

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

8.1 POLICIES AND PROCEDURES
    8.101 Federal Acquisition Regulation
    8.102 Agency Specific Acquisition Regulations
    8.103 Additional Governing Rules

8.2 BIDDING
    8.201 Sealed Bidding
    8.202 Negotiated Procurement
    8.203 Indefinite Delivery Contracts
    8.204 Bid Protests
    
8.3 PERFORMANCE
    8.301 Changes
    8.302 Differing Site Conditions
    8.303 Delays and Suspension of Work
    8.304 Termination

8.4 PAYMENT
    8.401 Progress Payments
    8.402 Prompt Payment

8.5 DISPUTE RESOLUTION
    8.501 Claims
    8.502 Litigation
    8.503 Alternative Dispute Resolution
    
8.6 FALSE CLAIMS
    8.601 False Claims Act
    8.602 Qui Tam Lawsuits
    8.603 The Truth in Negotiations Act
    8.604 Anticorruption Legislation
    8.605 Elements of a Compliance Program

CHAPTER 9: DRAFTING ISSUES IN CONSTRUCTION
CONTRACTS


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

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


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
ANDSTANDARD 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

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: FEDERAL ACQUISTION REGULATIONC
TERMINATION FOR CONVENIENCE, FOR DISMANTLING,
DEMOLITION OR REMOVAL, AND FOR DEFAULT

APPENDIX 12-2: VIRGINIA GENERAL CONDITIONS OF THE
CONSTRUCTION CONTRACT (DGS-30-054)—TERMINATION
PROVISIONS

APPENDIX 12-3: VDOT ROAD AND BRIDGE SPECIFICATIONS
(2007) TERMINATION PROVISIONS

CHAPTER 13: IMMIGRATION AND LABOR LAW

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
    13.502 Internal Audits, Compliance Policies, and Best
    Practices
    13.503 Contracts and Contract Provisions for Independent
    Contractors
    13.504 E-Verify

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-9CEMPLOYMENT ELIGIBILITY
VERIFICATION

CHAPTER 14: DAMAGES

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


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

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

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

CHAPTER 18: MECHANICS’ LIENS

18.1 IN GENERAL
    18.101 Statutory Creation
    18.102 Statutory Construction

18.2 WHO MAY CLAIM THE LIEN
    18.201 Identifying a Mechanic’s Lien Claimant
    18.202 Statement Declaring Intention to Claim the Benefit
    of a Lien Required
    18.203 Laborers and Suppliers
    18.204 Architects, Engineers, and Surveyors
    18.205 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
    
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
    18.1406 Attorney Fees

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 43-4 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 SUB-SUBCONTRACTOR UNDER
SECTION 43-9 OF THE VIRGINIA CODE

APPENDIX 18-4: COMPLAINT TO ASSERT CLAIM AGAINST
BOND ON STATE BUILDING OR PROJECT

APPENDIX 18-5: DISCLOSURE STATEMENT FOR SITE
DEVELOPMENT IMPROVEMENTS

APPENDIX 18-6: NOTICE TO MECHANICS’ LIEN AGENT
PURSUANT TO SECTION 43-4.01 OF THE VIRGINIA CODE

APPENDIX 18-7: OWNERS’ AFFIDAVIT AS TO MECHANICS’
LIENS AND POSSESSION (With “Gap” Coverage)

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

APPENDIX 18-13: ATTORNEY CHECKLIST FOR MECHANIC’S
LIEN CASE

CHAPTER 19: BANKRUPTCY

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

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: OSHA ON THE CONSTRUCTION JOBSITE

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 Elements and Burden of Proof
    21.1011 Discovery
    21.1012 DOLI Representation
    21.1013 Proceedings to Be Public Record
    21.1014 Decision of the Court
    21.1015 Appeals
    21.1016 Common Substantive Affirmative Defenses
    21.1017 Common Procedural Affirmative Defenses
    21.1018 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

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

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 AND VIRGINIA DRPT
    23.401 VDOT Projects
    23.402 Virginia DRPT Projects
    23.403 Partnering for VDOT Projects
    
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

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 Ghostwriting
    24.607 Threatening Criminal Prosecution
    24.608 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

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

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
    26.303 Teaming Agreements

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

CHAPTER 27: PUBLIC-PRIVATE PARTNERSHIPS

27.1 INTRODUCTION

27.2 WHAT ARE PUBLIC-PRIVATE PARTNERSHIPS?
    27.201 In General
    27.202 Common PPP Structures
    
27.3 PPPs IN VIRGINIA
    27.301 Key Statutes
    27.302 The PPP Procurement Process in Virginia
    27.303 PPP Agreements
    
27.3 THE VIRGINIA FREEDOM OF INFORMATION ACT

CHAPTER 28: CONDOMINIUMS

28.1 INTRODUCTION
    28.101 Governing Law and Definitions
    28.102 Creation
    28.103 Condominium Instruments and Governing Documents
    
28.2 CONSTRUCTION ISSUES
    28.201 Building Regulations
    28.202 Easement for Encroachments
    28.203 Alterations to Units
    28.204 Mechanics’ Liens
    28.205 Upkeep
    28.206 Warranties

28.3 CONSTRUCTION CONTRACTS
    28.301 The Parties
    28.302 Commonly Requested Provisions

CHAPTER 29: LEADERSHIP IN ENERGY AND
ENVIRONMENTAL DESIGN (LEED)

29.1 INTRODUCTION

29.2 OVERVIEW
    29.201 Establishment of LEED by United States Green
    Building Council
    29.202 LEED Rating Systems
    29.203 Credit Categories
    
29.3 LEED CERTIFICATION
    29.301 Levels of Certification
    29.302 Achieving Certification

29.4 FEDERAL, STATE, AND LOCAL LEED POLICIES AND
INITIATIVES
    29.401 Federal Policy LEED Initiatives
    29.402 Virginia State and Local LEED Policies
    
29.5 LEED RELATED CASE LAW

TABLE OF AUTHORITIES

INDEX


Authors

Editors

Edmund M. Amorosi, Smith Pachter McWhorter PLC / Vienna (Expand/Collapse Bio)

Edmund M. Amorosi, co-editor and co-author of Chapters 8 and 23, is the Managing Member of the law firm of Smith Pachter McWhorter PLC, a boutique law firm specializing in the practice of government contracts, construction, and white collar law. After graduating from George Mason University School of Law, Mr. Amorosi served as a law clerk to the Honorable Loren A. Smith on the U.S. Court of Federal Claims. Mr. Amorosi focuses his construction law practice on federal projects and disputes between prime contractors and the government and between prime contractors and their subcontractors. His government contracts practice also includes bid protests, contract claims and disputes, and audits and investigations. He is active in industry trade associations and is a frequent presenter and author. Before law practice, Mr. Amorosi served as a legislative aide and press secretary in the U.S. Senate and U.S. House of Representatives.

Jennifer A. Mahar, Smith Pachter McWhorter PLC / Vienna (Expand/Collapse Bio)

Jennifer A. Mahar, co-editor, author of Chapter 2, and co-author of Chapters 8 and 23, is a member of Smith Pachter McWhorter PLC. Ms. Mahar has extensive experience representing general contractors, subcontractors, owners, and sureties in all phases of project development and construction including contract formation, project management, and dispute resolution. Her experience includes the prosecution and defense of claims in litigation as well as the successful resolution of claims through various forms of ADR. Before joining Smith Pachter McWhorter, Ms. Mahar served as an Assistant Commonwealth’s Attorney for the City of Portsmouth. She earned a B.S. from the College of William and Mary and a J.D., cum laude, from the Catholic University of America Columbus School Law. Ms. Mahar is a member of the Virginia, Maryland, and the District of Columbia bars.

Brian J. Vella, Smith Pachter McWhorter PLC / Vienna (Expand/Collapse Bio)

Brian J. Vella, co-editor, author of Chapter 16, and co-author of Chapter 8, is a partner with Smith Pachter McWhorter PLC in Tysons Corner. After graduating from the University of Louisville School of Law, where he was Chairman of the Moot Court Board and an editor of the Law Review, he served as a clerk for the Virginia Supreme Court before entering private practice. For over 20 years, Mr. Vella has represented contractors, owners, and engineers in construction-related matters in Virginia and nationally through services ranging from preparation and review of contract documents to contract administration advice and resolution of disputes through mediation, arbitration, and litigation. Mr. Vella has been a speaker at the Virginia State Bar’s Annual Construction Law and Public Contracts seminar as well as at the American Bar Association’s Annual Construction Division meeting and the Annual Construction Super Conference held in San Francisco. In addition, Mr. Vella has served as a member of the Board of Governors of the Construction and Public Contracts Section of the Virginia State Bar and is a member of the Associated General Contractors. He has been named to Best Lawyers and Virginia Super Lawyers in the area of construction law.

Authors

James W. Barkley, Morin & Barkley LLP / Charlottesville (Expand/Collapse Bio)

James W. Barkley, co-author of Chapter 20, is a founding partner of Morin & Barkley LLP, where he has focused a substantial portion of his practice on complex litigation involving construction, insurance coverage, products liability, and commercial litigation. Since 2016, Mr. Barkley has devoted the majority of his practice to serving as a mediator. He has mediated a wide variety of disputes across Virginia, including construction, insurance coverage, real estate, commercial, and personal injury and property damage liability matters. He is admitted to practice in North Carolina, Virginia, and the District of Columbia. He speaks and writes frequently on construction and insurance coverage issues. Mr. Barkley earned a B.A. from the University of North Carolina-Chapel Hill and a J.D., with honors, from George Washington University in Washington, D.C.

William J. Benos, Williams Mullen / Richmond (Expand/Collapse Bio)

William J. Benos, author of Chapter 13, is a partner in the International Section of Williams Mullen in Richmond and founded the firm’s Immigration Practice Group. He has focused his practice on business immigration law, related compliance matters, and assisting clients with inbound investments and cross-border transactions since 1988. In addition to teaching at the University of Richmond School of Law, Mr. Benos serves as Canada’s Honorary Consul in Virginia. He is a member of the American Immigration Lawyers Association (AILA) and the Virginia and American Bar Associations. Mr. Benos earned an LL.B. in 1982 from the Western University School of Law in London, Ontario, Canada, and a J.D. in 1988 from the University of Richmond School of Law.

N. Reid Broughton, Sands Anderson PC / Christiansburg (Expand/Collapse Bio)

N. Reid Broughton, author of Chapter 9, is the managing shareholder of the Christiansburg Office of the law firm of Sands Anderson PC, where he practices in business and real estate matters, including construction, commercial development, financing and commercial litigation. Mr. Broughton received his B.A. from the University of Virginia and his J.D. from Washington & Lee University. He serves on the Board of Directors of the New River Valley Homebuilders Association, and the Blacksburg Partnership.

Joseph W. Cooch, Flora Pettit PC/ Charlottesville (Expand/Collapse Bio)

Joseph W. Cooch, author of Chapter 29, is an attorney with the law firm of
Flora Pettit in Charlottesville, Virginia. Mr. Cooch focuses his practice on the
representation of owners, contractors, subcontractors, and design professionals
in construction-related transactions and disputes. He serves as general
counsel to a local construction trade organization and is active in numerous
other construction organizations in central Virginia and the Shenandoah
Valley.

Mr. Cooch earned his B.A. from Washington & Lee University and his J.D.
from the University of Maryland School of Law. Mr. Cooch’s experience
includes litigation and arbitration of construction disputes in Virginia, Maryland,
and the District of Columbia. Prior to joining Flora Pettit, he served as
Assistant General Counsel in the U.S. General Services Administration’s
Real Estate Litigation group. Mr. Cooch was selected by his peers and recognized
by Virginia Business magazine as a member of “Virginia’s Legal Elite”
for 2019 in the area of Construction Law.

Mr. Cooch and his wife live in Charlottesville, Virginia, with their two children.

Robert K. Cox, Williams Mullen / Tysons Corner (Expand/Collapse Bio)

Robert K. Cox, author of Chapters 15 and 26, is the chair of Williams
Mullen’s Construction Practice Group. Since 1976, he has been a construction
and surety law attorney, representing contractors, subcontractors, suppliers,
owners, developers, and sureties on public, private, and P3 projects inside
and outside the United States. His legal practice includes drafting, negotiation,
and evaluation of construction contracts, consultation and advice on
project performance issues, the preparation of claims and requests for equitable
adjustments, and defending against performance and damages demands.

During his career, Mr. Cox has authored and co-authored numerous articles
on various construction law topics, including Chapter 18, “Defective Specifications—
Impracticability/Impossibility of Performance” in the ABA Forum
Section Book, Federal Government Construction Contracts (3d ed. 2017), and
chapters of this deskbook.

Mr. Cox is a member and former chairperson of the Virginia State Bar Construction
Law and Public Contracts Section, and a member of the Maryland
State Bar Construction Law Section. He has written and presented numerous
papers to legal and industry organizations on such topics as courtroom
strategy in qualifying, presenting, and defending expert witnesses, abuse of
and abusive contract clauses, material and labor price escalation, the use and
misuse of BIM technology in project design, the Integrated Project Delivery
(IPD) system, and the scope of surety risks when bonding a P3 project, among
other subjects.

Publications such as Best Lawyers in America, Chambers USA, Legal Elite,
Super Lawyers, and The International Who’s Who of Business Lawyers, Construction
Section, have included Mr. Cox in their listings of construction law
attorneys.

Mr. Cox was born and raised in Pittsburgh, received his undergraduate
degree in economics from Cornell University in Ithaca, and earned his law
degree with honors from George Washington University Law School in
Washington, D.C. He is licensed to practice law in the District of Columbia,
Maryland, and Virginia.

John J. Drudi, Wise & Donahue, PLC/ Fairfax (Expand/Collapse Bio)

John Joseph Drudi, co-author of Chapter 25, is of counsel with the law firm of Wise & Donahue, PLC, with offices located in Fairfax, Virginia, Annapolis, Maryland, and Reno, Nevada. Mr. Drudi is a construction, risk management, and insurance lawyer who handles cases in a wide variety of jurisdictions throughout the United States. Mr. Drudi is licensed as an attorney in California, the District of Columbia, and Virginia. He holds several other professional certifications and designations in the field of risk management and insurance, including the Chartered Property Casualty Underwriter (CPCU) designation, Associates in Insurance Accounting and Finance (AIAF), Associates in Insurance Regulation and Compliance (ARC), Associates in Risk Management (ARM), Associates in Risk Management for Public Entities (ARM-P), and Associates in Enterprise Risk Management (ARM-E). He is a member of the Chartered Property Casualty Underwriter Society, the Phi Beta Kappa Alumni Association, the California State Bar, the District of Columbia Bar, and the Virginia State Bar. He is a contributing author of the upcoming treatise Routledge’s Handbook on Risk Management and the Law, scheduled for publication in January 2020. Mr. Drudi earned a B.A., cum laude, from the University of Massachusetts at Amherst in 1986 and a J.D., cum laude, from the University of San Diego Law School in 1989, where he was a member of the San Diego Law Review.

Brad C. Friend, Kraftson Caudle LLC / McLean (Expand/Collapse Bio)

Brad C. Friend, co-author of Chapter 10, is an associate with Kraftson Caudle LLC, where his practice focuses on construction claims and litigation. His broad litigation and claims experience includes disputes regarding highway construction contracts, site work, wastewater treatment facilities, dam construction, hydroelectric power plant construction, differing site conditions, design defects, mechanics’ liens, bid protests, suretyship and insurance issues. He is the author of “Bailey v. Norfolk and Western Railway Co.: Creating a ‘Collateral Victim’ Doctrine Under the West Virginia Human Rights Act” and “The EPA’s New Effluent Guidelines for Construction Sites: Troubled Waters for Contractors and Developers.” Mr. Friend earned a B.A., with honors, from the University of Florida in 1999 and a J.D. from West Virginia University College of Law in 2003.

Jeffrey G. Gilmore, Akerman LLP/ Tysons Corner (Expand/Collapse Bio)

Jeffrey G. Gilmore, co-author of Chapter 5, is a partner in Akerman LLP, where he serves as Chair of Akerman’s National Construction Practice Group. His practice emphasizes domestic and international construction law involving a broad range of public and private construction initiatives. Mr. Gilmore’s work has included an array of innovative project delivery approaches, including EPC, design-build, and public-private partnerships. His industry experience includes power generation, renewable energy, transportation, industrial facilities, and multi-family housing projects. In addition, he has been recognized in The Best Lawyers in America for Construction Law, Virginia Business Legal Elite in the construction category, and Chambers USA in construction. Mr. Gilmore earned a B.A. from Miami University and a J.D. from The College of William & Mary’s Marshall-Wythe School of Law.

Mark P. Graham, Rees Broome/ Tysons Corner (Expand/Collapse Bio)

Mark P. Graham, co-author of Chapter 28, is a shareholder at Rees Broome,
PC. Mr. Graham is co-chairman of the firm’s litigation department and an
active leader in the firm’s community association’s practice. Mr. Graham
graduated from Boston College in 1993, and from Washington & Lee University
Law School in 1997. Prior to joining Rees Broome, PC, Mr. Graham
served as a judicial law clerk to the Honorable Robert W. Wooldridge, Jr. in
the Circuit Court of Fairfax County, Virginia. He has been recognized as one
of Virginia’s Super Lawyers and served as lead counsel in countless association
related cases, including many that have resulted in published legal
decisions.

Mr. Graham has provided general counsel to numerous condominium associations
in Arlington, Alexandria, Fairfax, and Loudoun Counties. Recent
topics include: assistance with transitioning from declarant to owner control;
advising clients regarding transition/reserve studies; the handling of warranty
related claims under the Virginia Condominium Act; oversight of
planning, bidding, contractor retention, funding and obtaining owner
approval for capital projects and major renovation projects; administration of
special meetings, annual meetings and board elections (proxy procedures,
quorum requirements, meeting formalities, etc.); handling of unit owner
claims, including claims under the Fair Housing Act and claims to the
Common Interest Community Board Ombudsman; resolution of claims/
negotiations with neighboring properties related to shared maintenance
obligations, nuisances, and easements; advising on the application of governing
documents; handling insurance related issues including claim denials for
property damage, as well as wrongful denials of coverage for claims falling
under Directors and Officers Liability policies; and assisting in the drafting of
amendments/revisions to governing documents.

James R. Hart, Hart & Horan, P.C. / Fairfax (Expand/Collapse Bio)

James R. Hart, co-author of Chapter 3, is a partner with Hart & Horan, P.C. in Fairfax. His practice focuses on construction and real property litigation. Mr. Hart has served as an at-large member of the Fairfax County Board of Zoning Appeals since 2000. He has served as an at-large member of the Fairfax County Planning Commission since 2004, and currently holds the office of Secretary. He is a member of the American Bar Association, the Virginia State Bar, the American Judicature Society, and the Fairfax Bar Association. Mr. Hart is a frequent author and lecturer for continuing legal education seminars and is a former chairman and Board of Governors member of the Construction Law and Public Contracts Section of the Virginia State Bar. He earned both a B.S. in Architecture and a J.D. from the University of Virginia.

Sean M. Howley, Kraftson Caudle PLC / McLean (Expand/Collapse Bio)

Sean M. Howley, author of Chapter 12, is a partner with Kraftson Caudle PLC. Before beginning his law career, Mr. Howley worked as a project engineer and project manager for a New York City metropolitan area general contractor constructing and managing multi-million dollar public works projects. Mr. Howley’s practice focuses solely on the resolution of construction and government contracts matters. He remains involved in the construction industry through participation in numerous trade and professional organizations and is a frequent writer and presenter on all issues related to construction law. Mr. Howley earned a B.S. in Civil Engineering from the University of Notre Dame in 1992 and a J.D. from St. John’s University School of Law in 1998.

Scott W. Kowalski, Petty, Livingston, Dawson & Richards PC/ Lynchburg (Expand/Collapse Bio)

Scott W. Kowalski, author of Chapter 17, is a principal of the firm Petty,
Livingston, Dawson & Richards, PC, and has focused his practice on construction
law and litigation since 1997. His areas of practice include construction
law, surety law, and litigation.

After clerking at the United States Court of Federal Claims, Mr. Kowalski
practiced for over a decade in the McLean, Virginia, office of the construction
law firm Watt, Tieder, Hoffar & Fitzgerald, LLP. In 2009, he returned to his
hometown of Lynchburg with his family and has continued to practice construction
law exclusively, representing owners, design professionals, contractors,
subcontractors, and suppliers in many facets of construction projects,
including drafting and negotiating contracts, bid protests, contract claims,
mechanic’s liens and payment bond claims, and insurance coverage issues, as
well as the mediation, arbitration, and litigation of claims and disputes.

Mr. Kowalski has served as a board member and current Vice Chairman of
the Virginia State Bar Construction & Public Contracts Law Section, a board
member and chairman of the Virginia Bar Association Construction & Public
Contracts Law Section, a Board member of the Associated Builders &
Contractors—Virginia Chapter. He has been named to the Virginia Business
Magazine Legal Elite, Virginia Super Lawyers, Virginia Super Lawyers
Rising Star and the Lynchburg Business Magazine Top Lawyers in the area
of construction law.

Daniel J. Kraftson, Kraftson Caudle PLC / McLean (Expand/Collapse Bio)

Daniel J. Kraftson, co-author of Chapter 10, is a partner with Kraftson Caudle PLC. Mr. Kraftson specializes in the areas of construction and government contract law, focusing primarily on the preparation, negotiation, and litigation of claims under government and private construction contracts. He also counsels contractors and owners regarding the drafting and negotiating of contract terms. Mr. Kraftson’s practice is both national and international in scope, and it has involved representation of both construction owners and construction contractors on a wide variety of projects. He serves as an arbitrator for the American Arbitration Association and frequently serves as a mediator as well. He is a past member of the Board of Governors of the Construction Law Section of the Virginia State Bar and has spoken at various continuing legal education courses and construction industry presentations. He is rated AV Preeminent by Martindale-Hubbell and is listed in the Best Lawyers in America and Chambers USA in the Construction Law and Construction Litigation categories. Mr. Kraftson earned a B.A. from Wheaton College in 1973 and a J.D. from the College of William and Mary in 1977.

Elisabeth L. Manuel, Morin & Barkley LLP / Charlottesville (Expand/Collapse Bio)

Elisabeth L. Manuel, co-author of Chapter 20, is a partner with Morin & Barkley LLP, where her practice focuses on risk management, including contract drafting and negotiation, and complex construction, insurance coverage, and commercial litigation. She regularly counsels individuals and businesses in the construction industry. Ms. Manuel earned a B.A. from the University of Virginia and a J.D., with high honors, from Chicago-Kent College of Law in Chicago, Illinois.

K. Brett Marston, Gentry Locke / Roanoke (Expand/Collapse Bio)

Brett Marston, author of Chapter 21, practices almost exclusively in the areas of construction and OSHA law. He is a former Chair for the Board of Governors of the Virginia State Bar’s Construction and Government Contracts Section. Mr. Marston is a former President of the Roanoke Bar Association (2006-07) and has served as a member of the Board of the Young Lawyers Conference of the Virginia State Bar, from which he received the R. Edwin Burnette Young Lawyer of the Year Award in 2004. He has been recognized by various publications, including Best Lawyers in America, for his work in the construction litigation and contracts field. Mr. Marston is a 1990 graduate of the University of Virginia and a 1993 graduate, with distinction, of the George Mason University School of Law.

Thomas O. Mason, Thompson Hine LLP / Washington, D.C. (Expand/Collapse Bio)

Thomas O. Mason, co-author of Chapter 6, is a partner with Thompson Hine
LLP in Washington, D.C. He concentrates his practice on all aspects of
government contracts law and litigation, including grants, co-operative
agreements, the management of major government systems and programs,
and the resolution of related claims and disputes. Mr. Mason has extensive
trial and appellate litigation experience with a broad background in commercial
and government contracts litigation including civil false claims,
construction, and intellectual property issues. During his 25 years of practice,
he has prosecuted and defended bid protests and appeals of agency final
decisions, handled mediations and arbitrations, negotiated contract awards
and changes, led litigation teams in complex litigation, and drafted contracts,
subcontracts, contract changes, unique one-of-a-kind contracts, and settlement
agreements. Additionally, he has extensive experience in dispute
resolution, including personally handling litigation actions involving commercial, false claims act, environmental cost recovery matters, and matters under the Petroleum Marketing Practices Act.

Mr. Mason is a member of the American Bar Association, the District of
Columbia, Michigan, South Carolina, and Virginia Bar Associations. He is
admitted to practice before the United States Supreme Court; the United
States Court of Appeals for the Federal Circuit; the United States Court of
Federal Claims; the Fourth Circuit Court of Appeals; the United States
District Courts for Colorado, the District of Columbia, Michigan, South
Carolina, and Virginia; and Agency Boards of Contract Appeals.

A 1973 graduate of the United States Military Academy at West Point, Mr.
Mason earned a J.D. in 1980 from the University of Detroit School of Law.
Mr. Mason also earned his Program Management Certification in 1994 from
the Defense Systems Management College, and he holds a Specialty in
Government Acquisition Law.

William R. Mauck, Jr., Spotts Fain / Richmond (Expand/Collapse Bio)

Billy Mauck, author of Chapter 14, chairs Spotts Fain’s Construction Law Practice Group and is a partner in the firm’s Litigation Section. His practice focuses on the representation of clients in the construction industry in state and federal courts at the trial and appellate levels and in arbitration and mediation on a variety of matters, including delay and inefficiency claims, design-related issues, performance and payment bond claims, mechanics’ liens, and defective construction materials. He is experienced in the negotiation, formation, drafting, and administration of construction contracts and related documents and routinely counsels clients in those matters. Mr. Mauck is a former member of the Board of Governors of the Virginia Bar Association and has also chaired the VBA’s Construction and Public Contracts Law Section and Civil Litigation Section. He also served on the Board of Governors and chaired the Virginia State Bar’s Construction Law and Public Contracts Section. Mr. Mauck is listed in Best Lawyers in America in construction law and has been named to Virginia Business magazine’s “Legal Elite” in Real Estate and Construction Law. He is also listed in Virginia Super Lawyers magazine for construction litigation. Mr. Mauck earned a B.A. and a J.D. from Washington and Lee University. He also serves as an arbitrator for the American Arbitration Association in commercial and construction cases.

Daniel Miktus, Akerman LLP/ Washington, D.C. (Expand/Collapse Bio)

Daniel Miktus, co-author of Chapter 5, is an associate with Akerman LLP. Mr. Miktus represents clients in the areas of construction, government contracts, litigation, surety, and real estate, and has considerable experience representing clients in the litigation of complex private and public construction and surety disputes. He is licensed to practice in Washington, D.C., Virginia, and Maryland. In addition to appearing before courts in these jurisdictions, Mr. Miktus has represented clients in the Civilian and Armed Forces Boards of Contract Appeals as well as the D.C. Contract Appeals Board. He received a B.A. from Saint Joseph's University in 2011. He earned his J.D. from George Mason University School of Law in 2014 (magna cum laude) and served as the George Mason Law Review Production Editor.

Allison R. Mullins, Shannon Mullins & Wright LLP / Alexandria (Expand/Collapse Bio)

Alison R. Mullins, co-author of Chapters 4 and 28, is founding partner at
Shannon Mullins & Wright LLP. Ms. Mullins focuses her practice on all
aspects of construction law, and civil litigation. She primarily represents
architects, engineers, contractors, subcontractors, suppliers, and owners in
technical construction industry matters. She advises clients regarding risk
management throughout the entire construction project, from the conceptualization
of the project and contract negotiations, through post-substantial
completion issues.

Ms. Mullins is a native New Englander and received her J.D. from Roger
Williams University School of Law in Bristol, Rhode Island in 2005. Before
entering the private practice of law, Ms. Mullins started her legal career as a
contracts manager and in-house counsel at a large architectural firm in
Northern Virginia. From that experience, she has unique insight and
perspective on client needs and how to meet them. She is admitted to practice
in Virginia, Maryland, and the District of Columbia.

Ms. Mullins is on the Board of Governors and Treasurer of the Virginia State
Bar Construction and Public Contracts Law Section. She is also an Allied
Professional member of the American Institute of Architects, Northern Virginia
and District of Columbia Chapters, the Past-President for the Northern
Virginia Chapter of Virginia Women Attorneys Association, and Director at
Large and Legislative Committee Chair for the State Board of the Virginia
Women Attorneys Association. She is the author/co-author of numerous
articles in several industry periodicals, as well as a frequent presenter on
construction industry and legal-related topics. Ms. Mullins has been
recognized as a Super Lawyers Rising Star in both Virginia and the District
of Columbia, has been named to Virginia Legal Elite by Virginia Business Magazine,
and has received Martindale-Hubbell’s top (“AV Preeminent”) Peer
and Judicial Review Ratings.

John M. Neary, Akerman LLP/ Washington, D.C. (Expand/Collapse Bio)

John M. Neary, co-author of Chapter 5, is an associate with Akerman LLP. He represents owners, contractors, and design professionals in civil litigation matters, and provides guidance on contract formation and administration. In addition, Mr. Neary’s practice focuses on state and federal government contracts counseling and dispute resolution in the information technology, defense, and construction industries. He has extensive experience litigating bid protests and contract disputes, as well as helping clients with mandatory disclosures under the Federal Acquisition Regulation (FAR). He earned a B.S. in Civil Engineering from Purdue University in 2005 and was awarded his J.D., with honors, by the George Washington University Law School in 2013.

Ryan J. Pedraza, Hunton Andrews Kurth LLP / Richmond (Expand/Collapse Bio)

Ryan J. Pedraza, co-author of Chapter 27, is a senior attorney at Hunton
Andrews Kurth LLP where he assists clients with the development,
construction and financing of infrastructure projects.

Mr. Pedraza has extensive experience with all phases of Public-Private
Partnerships (P3s) from project planning to the administration of project
agreements. He has been involved with marquee P3s throughout the United
States. Mr. Pedraza joined Hunton Andrews Kurth following a career in the
public sector. He served in the Virginia Office of the Attorney General, where
he advised executive branch agencies on the planning and execution of P3
projects and other procurement-related matters. Mr. Pedraza also worked as
a program manager in the Virginia Office of Public-Private Partnerships,
where he was instrumental in the delivery of a number of successful P3
transactions.

Mr. Pedraza received his J.D. from the College of William and Mary School of
Law, where he was the student note editor for the William and Mary Bill of
Rights Journal and the William and Mary Environmental Law and Policy
Review. He is admitted to practice in Virginia and Florida.

Francis E. “Chip” Purcell, Jr., Thompson Hine LLP / Washington, D.C. (Expand/Collapse Bio)

Chip Purcell, co-author of Chapter 6, is a partner with Thompson Hine LLP
in Washington, D.C. His practice focuses on various government contracts
matters. Mr. Purcell’s government contracts experience includes counseling
clients on the formation and performance of government and commercial
contracts, developing contract formation and negotiation guidelines in federal
procurement, and litigating various government contracts matters. He has
participated in bid protests before the United States Court of Federal Claims
and General Accounting Office and in agency and court litigation involving
claims and contract performance issues before the United States Court of
Appeals for the Federal Circuit, the Court of Federal Claims, and the Armed
Services Board of Contract Appeals. He also has experience in contract negotiation
and performance and dispute resolution matters involving state and
local governments.

Mr. Purcell has substantial experience in developing and negotiating federal
supply schedule contracts with the General Services Administration and has
drafted and negotiated software licensing and subcontractor and teaming
agreements on behalf of clients. He developed an organizational conflict of
interest mitigation plan for a major defense contractor involving spectrum
management contracts valued at $500 million. His litigation experience includes
the representation of a major defense contractor in claims litigation
before the Armed Services Board of Contract Appeals.

Mr. Purcell is admitted to practice before the United States Courts of Appeals
for the Fourth Circuit and the Federal Circuit, the United States Court of
Federal Claims, and the United States Courts for the Eastern District of
Virginia and the District of Columbia. Mr. Purcell is a member of the Virginia
State Bar and District of Columbia Bar. He also is a member of the
Public Contracts Law Section of the American Bar Association and the
Virginia Bar Association and serves on the board of governors for the Board
of Contract Appeals Bar Association. He is a member of the Fourth Circuit
Judicial Conference and the board of editors for the Public Contract Law
Journal, published by the American Bar Association Section of Public
Contract Law in cooperation with the George Washington University School
of Law.

Mr. Purcell earned a law degree in 1994 from the Columbus School of Law at
Catholic University of America, where he was an editor of the Catholic University
Law Review. He graduated with distinction from Duke University in
1989 with a B.A. in history. Mr. Purcell served as a law clerk for the
Honorable Henry Coke Morgan, Jr., United States District Judge in the
Eastern District of Virginia, and was subsequently a government contracts
litigation associate in the Washington, D.C., area. Before joining Thompson
Hine LLP, Mr. Purcell was previously an attorney in the Government Contracts
Section of Cooley LLP in Washington, D.C., and WilliamsMullen, in
Tyson’s Corner, Virginia.

Jack Rephan, Pender & Coward, P.C. / Virginia Beach (Expand/Collapse Bio)

Jack Rephan, author of Chapter 11, is shareholder in the Virginia Beach firm of Pender & Coward, P.C. He is a member of the bars of Virginia and the District of Columbia and is admitted to practice before the United States Supreme Court. After serving as a law clerk for the United States Court of Claims, Mr. Rephan was in private practice in Washington, D.C., from 1962 through 1993. Since 1993, he has practiced law in the Hampton Roads area. Mr. Rephan’s legal career has covered a broad range of areas of the law, although his current practice is primarily devoted to construction law, government contract law, alternate dispute resolution, and civil litigation. Mr. Rephan has represented contractors, subcontractors, suppliers, and owners in a host of construction disputes on federal, state, and local construction projects. In addition to his work in litigation, he regularly represents parties to construction disputes in arbitration and mediation and also regularly serves as an arbitrator and mediator of construction disputes for the American Arbitration Association. He also is an arbitrator for the Financial Industry Regulatory Authority. He has been a lecturer for many years on construction law subjects in seminars sponsored by the Construction and Public Contracts Law Section of the Virginia State Bar, the American Institute of Architects, Associated Builders and Contractors, The Associated General Contractors of Virginia, Lorman Education Services, and other organizations. He is the author of several articles on construction law and other subjects. Mr. Rephan has served both as the chair and as a member of the Board of Governors of the Construction and Public Contracts Law Section of the Virginia State Bar. He has been named by Virginia Business magazine as one of the best construction lawyers in Virginia, listed in Best Lawyers in America in the field of construction law, and listed by Virginia Super Lawyers for construction litigation. He also holds an AV rating from Martindale Hubbell. Mr. Rephan earned a B.S. in Commerce from the McIntire School of Commerce at the University of Virginia in 1954 and a J.D. in 1959 from the University of Virginia Law School.

Robert K. Richardson, The Law Office of Robert K. Richardson / Fairfax (Expand/Collapse Bio)

Bob Richardson, author of Chapter 22, is the principal of The Law Office of
Robert K. Richardson, where he practices in the areas of construction law,
real estate law, and commercial litigation. He has practiced law since 1973.
He retired from Odin, Feldman & Pittleman, P.C. in 2016 and has maintained
a solo practice since then. Mr. Richardson has lectured throughout
Virginia at seminars on mechanics’ liens, construction law, construction contracts,
and real estate law; has published numerous seminar outlines in
conjunction with the lectures; and has had articles on the perfection and
enforcement of mechanics’ liens and notice of claim requirements under the
Virginia Public Procurement Act published in the September 1991 and
October 1999 issues of the Virginia Lawyer. He has been lead counsel in
numerous reported cases from the Virginia Supreme Court, the United States
Court of Appeals for the Fourth Circuit, and the United States District Court
for the Eastern District of Virginia.

Mr. Richardson earned an A.B. from Duke University in 1970 and a J.D. from
George Washington University Law School in 1973. Mr. Richardson is a
member of the Virginia Bar Association, the Fairfax Bar Association, the
Virginia State Bar Construction Law and Litigation Sections, the District of
Columbia Bar Association Government Contracts and Litigation Sections, the
Virginia Trial Lawyers Association, and the Litigation Counsel of America.

Thomas E. Spahn, McGuireWoods LLP / McLean (Expand/Collapse Bio)

Thomas E. Spahn, author of Chapter 24, practices as a commercial litigator with McGuireWoods in Tysons Corner, Virginia. Mr. Spahn was selected as the 2013 metro-Washington DC “Lawyer of the Year” for “Bet the Company Litigation” by The Best Lawyers in America (Woodward/White, Inc.). He has served on the ABA Standing Committee on Ethics and Professional Responsibility, and is a Member of the American Law Institute and a Fellow of the American Bar Foundation. He has written extensively on attorney-client privilege, ethics, and other topics, and has spoken at over 1,400 CLE programs throughout the U.S. and in several foreign countries. Through links on his firm’s website bio, he has made available to the public: his summaries of over 1,600 Virginia and ABA legal ethics opinions, organized by topic; a 300 page summary of his two-volume 1,500 page book on the attorney-client privilege and work product doctrine; over 750 weekly email alerts about privilege and work product cases; materials for thirty ethics programs on numerous topics, including approximately 7,000 pages of analysis. Mr. Spahn graduated magna cum laude from Yale University and received his J.D. from Yale Law School.

David K. Spiro, Spiro & Browne, PLC/ Richmond (Expand/Collapse Bio)

David K. Spiro, author of Chapter 19, is founding partner in the Richmond
law firm of Spiro & Browne, PLC, which specializes in bankruptcy and
commercial litigation. Prior to co-founding Spiro & Browne, Mr. Spiro
practiced with Hirschler Fleischer, P.C., where he co-chaired the firm’s
bankruptcy practice group. Mr. Spiro’s practice focuses on bankruptcy
generally, with an emphasis on the representation of distressed businesses
and business owners. Mr. Spiro routinely represents builders, contractors,
lenders, and various other entities under all bankruptcy chapters and in
workout proceedings. Mr. Spiro earned both his B.A. in Economics and his
J.D. from the University of Virginia.

Karen M. Stemland, WoodsRogers LLP/ Charlottesville (Expand/Collapse Bio)

Karen M. Stemland, co-author of Chapter 20, is of counsel at Woods Rogers, where she focuses her practice on commercial litigation, construction contracts and disputes, and insurance coverage. In addition, she provides guidance on risk management, contract drafting, and dispute resolution. Formerly with the Charlottesville firm of Morin & Barkley LLP, Ms. Stemland focused on construction, real estate, franchise, bankruptcy, and product liability matters. Ms. Stemland graduated cum laude from Georgetown University Law Center in 2001. She served as Senior Notes Editor for the Georgetown International Environmental Law Review from 2000-2001. Ms. Stemland earned her B.A. from Colgate University in 1997, where she graduated magna cum laude with Honors in Political Science. Prior to law school, Ms. Stemland worked in the Antitrust Division of the U.S. Department of Justice.

Bruce E. Titus, The McCammon Group, Ltd./ Richmond (Expand/Collapse Bio)

Bruce E. Titus, co-author of Chapter 4, has had a broad commercial dispute
resolution practice that addresses a variety of contract issues, landlordtenant
disputes, design and structural failure litigation, and other
construction-related matters. He has represented design professionals in all
aspects of their practices and also has represented clients in arbitration,
mediation, and other alternative dispute resolution proceedings. A former
member of the American Arbitration Association’s National Panel of
Arbitrators and Mediators, he now provides mediation and other dispute
resolution services as a member of The McCammon Group in Richmond,
Virginia. He has also been a frequent lecturer on the subjects of dispute
resolution, risk allocation, and management. Mr. Titus is admitted to practice
in Virginia, the District of Columbia, and Maryland.


Mr. Titus received his B.A. and J.D. from the College of William and Mary,
where he served as Executive Editor of the William & Mary Law Review, was
a recipient of the William A.R. Goodwin Scholarship, and was a member of
Omicron Delta Kappa National Leadership Society. Mr. Titus served in the
United States Department of Justice from 1971 to 1982 and attained the
position of Deputy Director of the Civil Division’s Torts Branch before
entering private practice.

Mr. Titus is a member of numerous professional organizations, including the
American Bar Association, the Maryland State Bar Association, the Virginia
State Bar Association, the Bar Association of the District of Columbia, and
the Fairfax County Bar Association. He has served as a member of the
Dispute Resolution Advisory Council of the Supreme Court of Virginia, a
member of the Virginia State Bar Council, the Chair of the Virginia State
Bar Construction and Public Contracts Law Section, and as President of the
Fairfax County Bar Association. For more than twenty-five years, Mr. Titus
has served on the Fairfax County Engineering Standards Review Committee.

Charles E. Wall, Seyfarth Shaw LLP/ Washington, D.C. (Expand/Collapse Bio)

Charles E. Wall, co-author of Chapter 27, is a partner in the Washington,
D.C., office of Seyfarth Shaw LLP, and a member of the firm’s national
construction practice. He assists clients in all aspects of public-private partnerships
(P3s) and infrastructure development from initial concept through
project completion and beyond. A frequent speaker on P3s and design-build,
Mr. Wall was recognized by Best Lawyers in America as 2019 “Lawyer of the
Year” in Construction Law in Richmond.

Mr. Wall’s experience is extensive and includes some of the most complex P3
projects in the United States. His work focuses on crafting risk-sharing
arrangements involving project financing, design and construction, and longterm
operation and maintenance of high-priority infrastructure developments.

Mr. Wall has advised both private- and public-sector clients on
numerous procurement matters and alternative project deliveries. In addition,
he advises clients on a vast array of construction and corporate matters,
including joint ventures and teaming arrangements.

A member of the Virginia State Bar and a past chair of its Standing Committee
on Professionalism, Mr. Wall is also admitted to practice in the District
of Columbia. He received a J.D. from the University of Richmond School
of Law and a B.B.A. from the College of William and Mary.

James L. Windsor, Kaufman & Canoles, P.C. / Virginia Beach (Expand/Collapse Bio)

James L. Windsor, author of Chapter 18, is a partner with Kaufman &
Canoles, P.C. and is based in the firm’s Virginia Beach office. He is the Chair
of the firm’s Real Estate Claims & Title Insurance Solutions Group. Mr.
Windsor is an AV Preeminent-rated lawyer with over 33 years of experience
and expertise in counseling and litigation involving construction, mechanics’
liens, bond claims, mortgage lending, creditors’ rights, and commercial and
banking law.

Mr. Windsor has written a book, a law review article, and many articles on
topics of interest to the construction and real estate industry. Mr. Windsor
was selected by peers and recognized by Virginia Business magazine as a
member of “Virginia’s Legal Elite” in 2003, 2004, 2007-2014, and 2016-2017
in the areas of Construction Law and Real Estate and was listed in Virginia
Super Lawyers in 2006 and 2010-2018 in the area of Real Estate. He received
the Distinguished Service Award from the Virginia Land Title Association for
2015-2016, and was a Martindale-Hubbell Top Rated Lawyer in Insurance
Law in 2013. In 2018, he was listed as a Top Rated Lawyer in Insurance Law
and a Top Rated Lawyer in Litigation Law in The American Lawyer and
Corporate Counsel magazine. In addition, in 2018, Mr. Windsor was selected
by peers and recognized by Best Lawyers in America 2018-2020 in the area of
Real Estate.

Mr. Windsor earned a B.S. degree, cum laude, from James Madison University
and a J.D. from the T.C. Williams School of Law at the University of
Richmond. He is a member of the Virginia State Bar, the American Bar
Association, the Virginia Beach Bar Association, and the Virginia Land Title
Association. Mr. Windsor lectures frequently before construction and real
estate professionals, lenders, lawyers, and others involved in construction
and real estate law.

Randall H. Wintory, Virginia Department of Transportation / Commonwealth of Virginia (Expand/Collapse Bio)

Randall H. Wintory, author of Chapter 7, is the Senior Transportation
Claims Manager for the Virginia Department of Transportation. Prior to
joining VDOT, he represented VDOT and other state agencies for over ten
years as an Assistant Attorney General. As lead trial attorney, he successfully
defended VDOT from one of the largest construction contract claims
ever brought against VDOT. He currently serves as an officer of the Board of
Governors of the Virginia State Bar Construction and Public Contracts Law
Section. He is a former Chair of the Virginia Bar Association Construction
and Public Contracts Law Section.

Mr. Wintory is also the author of four articles on construction-related issues:
“The Patent Ambiguity Doctrine: Clarifying the Duty to Inquire” (Virginia
Lawyer,, Feb. 2013); “Working with the Multi-Employer Policy” (VBA News
Journal, July/Aug. 2007); “An Analysis of Virginia Code § 43-11, as Amended:
An Old Law That Is Still Good Law” (Va. Lawyer, Oct. 2006); and “Cost Plus
Contracts: Fair Deal or License to Steal?” (Virginia Lawyer, Feb. 2003). He
earned a J.D. from the Marshall-Wythe School of Law at the College of
William & Mary in 1998 and, since then, has had the pleasure of practicing
law as a Virginia construction and public contracts lawyer.

David Hilton Wise, Wise & Donahue, PLC / Fairfax (Expand/Collapse Bio)

David Hilton Wise, author of Chapter 25, is a partner with the law firm of Wise & Donahue, PLC, with offices located in Fairfax, VA, Annapolis, MD, and Reno, NV. Mr. Wise is a construction lawyer who handles cases in a wide variety of jurisdictions throughout the United States. He had successfully tried cases involving construction defects, toxic mold, sick building claims, defective design, impact and delay claims, performance and payment bond claims, and other construction contract disputes. Mr. Wise is licensed in California, the District of Columbia, Maryland, Nevada, and Virginia and is also licensed as a professional civil engineer in California. Mr. Wise has also been involved in several class actions involving defective construction products, and is currently serving on the plaintiff’s steering committee in an MDL case involving Pella Windows. He has represented homeowners, general contractors, construction managers, subcontractors, suppliers, and sureties in a wide variety of construction-related disputes. His experience as both an engineer and a lawyer is particularly helpful in the preparation and resolution of construction-related claims and in litigation involving the complex issues associated with toxic mold and sick building claims. Mr. Wise is a frequent lecturer on construction-related topics. He is a member of The American Bar Association-Forum Committee on Construction Industry and Litigation section, the Virginia State Bar-Construction Law Section, the Virginia Trial Lawyers Association, the Maryland State Bar, the California State Bar, the District of Columbia Bar, and the Nevada State Bar. Mr. Wise earned a B.S. in Civil Engineering from the University of Nevada-Reno in 1985 and a J.D. from the University of San Diego Law School in 1989.

Thomas M. Wolf, Miles & Stockbridge P.C./ Richmond (Expand/Collapse Bio)

Thomas M. Wolf, author of Chapter 1, is a trial lawyer and heads the Construction Industry Team of Miles & Stockbridge. Focusing his practice on construction law and business litigation, Mr. Wolf has tried more than 100 cases to verdict before juries, judges, and arbitrators. He has been lead counsel in litigation in more than 20 states and was the senior member of the trial team that won the then-largest jury verdict in Virginia history—$100.5 million against Nationwide Insurance Co. An adjunct professor teaching construction law at the University of Richmond School of Law since 1986, Mr. Wolf has served the Virginia State Bar as chair of its Construction Law and Public Contracts Section. He is a frequent speaker to lawyers and industry groups on legal issues related to construction and is the author of numerous articles, chapters, and books regarding construction law. He has been active in the American Bar Association’s Forum Committee of the Construction Industry, the Associated General Contractors of Virginia, the Construction Specifications Institute, and the American Institute of Architects. Mr. Wolf graduated Order of the Coif from Vanderbilt University School of Law and cum laude from Vanderbilt University.

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