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Welcome to the VBA Construction and Public Contracts Law Section blog.

Since its inception, the VBA Construction and Public Contracts Law Section has worked to provide its members with valuable services, from monitoring and promoting legislation affecting the construction and public contracting industries to providing informative seminars at VBA meetings. The Section also strives to keep the public informed on these matters by writing, publishing, and presenting on important current issues within our field. To that end, the Section has decided to provide that same quality information in a more accessible format by starting this blog, containing publications by section members on construction and public contracts issues. We hope you enjoy these posts.

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Top tags: Construction  Contracts  mechanics liens  Payment Bonds  writing for the blog 

Statute has Power to Nullify Lien Waivers in Virginia

Posted By Joshua C. Johnson, Monday, January 25, 2016

Effective July 1, 2015, any provision of a construction contract or lien waiver that “waives or diminishes” the payment bond or mechanic’s lien rights of a subcontractor, lower-tier subcontractor or material supplier before services are rendered is “null and void” in Virginia.  The language in Va. Code § 11-4.1:1 and Va. Code § 43-3 represents a sharp turn from previous Virginia law on payment bonds and mechanic’s liens, which expressly allowed such waivers “at any time.”  

So what is the takeaway for construction attorneys in Virginia?  Read your contracts closely in light of the new law.  Your clients may have more leverage than they think, or they may be giving away leverage by failing to update their documents.

 

By:      W. Ryan Snow

            Crenshaw, Ware & Martin, P.L.C.

Tags:  mechanics liens 

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Date of Mailing Doesn’t Save State Law Payment Bond Claim

Posted By Joshua C. Johnson, Monday, January 18, 2016

In a case of first impression in Virginia, the circuit court in Norfolk confirmed that the date of mailing is meaningless to satisfy notice requirements on a state law payment bond claim. The date that matters is the one on which the general contractor receives the notice.

Under the Little Miller Act in Virginia, a supplier or subcontractor who asserts a payment bond claim must give “written notice” to the general contractor within 90 days of the last day of work for which payment is sought. Failure to do so bars the claim. In R. T. Atkinson v. Archer Western Construction, the supplier mailed notice of its claim before the 90-day deadline, but the general contractor received it two days after the deadline. Citing similar federal precedent, the state court held that notice is not “given” until the general contractor receives it, so a payment bond claim that is only mailed before the deadline is ineffective.

The lesson? Don’t wait until the last minute to assert your bond claim. You might lose it all.

By: W. Ryan Snow

Crenshaw, Ware & Martin, P.L.C.

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Tags:  Payment Bonds 

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Writing for the blog

Posted By Administration, Friday, January 15, 2016

The VBA Construction Law Blog project is headed by Section Chair Scott Kowalski and Joshua Johnson.

The Council members of the VBA Construction and Public Contracts Law Section will be writing for the blog.

If you would like to submit a post or become a regular contributor, please contact Scott or Josh.

Tags:  construction  writing for the blog 

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What is a construction contract?

Posted By Joshua C. Johnson, Tuesday, January 5, 2016

At its core, construction litigation is contract law. There are, however, many factors that make construction litigation unique and challenging for practitioners who don’t typically handle construction cases. This post will assess one of the most basic questions that a lawyer and client should ask when investigating a construction dispute: what is the contract?

The three elements of a breach of contract cause of action are: a contractual duty, a breach of the duty, and damages. So, the substance of the contract is very important.

Therefore, this list outlines the various components that often comprise a construction contract:

  1. The Contract Documents – This is the term used to refer to all of the documents that together form the parties’ agreement. The agreement sets out the basic terms and is the central agreement between the parties, which generally outlines the contract price and type (e.g., cost-plus or fixed price), the time for performance, and often the payment terms. The basic agreement typically attaches certain exhibits (e.g., general or special conditions, project schedule) and incorporates others by reference (e.g., drawings and specifications).
  2. The General Conditions – This Contract Document sets out the responsibilities of the various parties in the execution of the construction project. On more sophisticated projects, it will define the interplay between the owner, architect, and contractor, as well as any flow down responsibilities for subcontractors.
  3. The Supplemental Conditions – These are special conditions that are unique to the particular project and in some cases, they are used to modify a standardized set of general conditions.
  4. The Specifications – On sophisticated construction project, the specifications (or “specs” as they are often called) provide a detailed explanation of the procedures, materials, dimensions, and minimum quality requirements for the construction project.
  5. The Drawings – The architectural drawings depict visually how the project should be put together. On smaller or less sophisticated projects, the notes on the drawings also add minimum requirements and provide detailed explanations for construction, which are similar to the specifications.
  6. Bilateral Change Orders - The standard document used to formalize an agreed upon change where the parties have agreed on the scope of the change (addition or deletion to the scope of work) and the amount of the change (addition or deletion to the contract amount or contract time).
  7. Unilateral Change Orders - An order from the owner that certain work be performed even if the parties have not agreed on the price for the work or the amount of extra time that is allotted for the project. Some contracts provide specific information describing how to price work performed subject to a unilateral change order.
  8. For State-Funded Public Jobs in Virginia, the Virginia Public Procurement Act (Va. Code 2.2-4300, et seq.) requires that certain provisions be included in Virginia’s public contracts. In addition, there may be other applicable regulations (e.g., VDOT regulations), which are incorporated into contract documents.
  9. The Provisions of the Federal Acquisition Regulations (Chapter 1 of Title 48 of the Code of Federal Regulations) also requires that certain provisions be included in federal public contracts.

This long list of contract documents demonstrates one of the ways that construction litigation is unique and complicated.

Tags:  Construction  Contracts 

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