Volume: 17, Issue: 1 - 01/17/2019


Building codes in most jurisdictions impose penalties, monetary fines, and sanctions against a contractor’s license for building without a permit. The laws typically refer to a “willful” violation. But does this mean a specific intent to violate the law or a more general intent to proceed with work without ascertaining the need for a permit? A California appellate court was recently presented with this question. Read more.


A contractor “willfully” violates building permit requirements if it intentionally proceeds with work without accurate knowledge of those requirements. No specific intent to violate the law is required in order to subject the contractor to statutory sanctions.


A contractor could not show that a defectively worded notice of default/final decision of the contracting officer was prejudicial. There was no evidence the wording caused the contractor to miss the appeal deadline. In so ruling, the Civilian Board of Contract Appeals articulated for the first time its approach in resolving conflicting precedent from its predecessor boards.

Volume: 16, Issue: 24 - 01/04/2019


Each of the circuits in the U.S. Court of Appeals is a semi-autonomous region of the federal judicial system. There is no requirement, constitutional or otherwise, that they agree on everything.


The Fifth Circuit, covering Texas, Louisiana, and Mississippi, has long been an outlier on the question of “controlling employer” (typically a general contractor or construction manager) responsibility for OSHA compliance with regard to employees of separate employers (typically subcontractors or trade contractors) at multi-employer construction sites. The Fifth Circuit has held that a contractor could not be cited for OSHA violations that affected only employees of other contractors.  In a recent decision, the Fifth Circuit overruled itself in light of a U.S. Supreme Court decision that reflected a more mainstream viewpoint.  Read more.


The Fifth Circuit of the U.S. Court of Appeals has overruled its prior precedent and adopted prevailing federal law regarding OSHA responsibility at multi-employer worksites. A contractor with control over a worksite can be cited for OSHA violations even when the workers exposed to hazards were the employees of other contractors.


The standard Differing Site Conditions clause is interpreted and applied in the same manner in all fixed-price contracts, regardless of whether the contract is design-build or a traditional bid and construct. A design-build contract does not shift the risk of differing site conditions to the contractor.

Volume: 16, Issue: 23 - 12/19/2018


A classic differing site condition claim alleges actual conditions in the field that differ materially from conditions represented in the contract documents. A necessary foundation for such a claim is an affirmative contractual representation that is reasonably relied upon by the contractor. These are the most litigated aspects of site condition claims.

A federal contract for the design and construction of a building stated the average annual rainfall in the area of the site, but was silent regarding subsurface conditions. A month of near-record rainfall raised the groundwater to nine feet below grade, forcing the contractor to alter its method of installing concrete foundation piers, and resulting in a differing site conditions claim. Read more.


A statement in the contract documents regarding average annual rainfall in the area of the work was not a representation that rainfall during the contract performance period would not exceed that amount. Any reliance by the contractor on average annual rainfall for the purpose of predicting groundwater levels was unreasonable.


An insurer was subrogated to a project owner’s rights established in a construction contract. But the project owner was a suspended corporation with no right to sue. Consequently, the insurer could not sue a contractor to enforce an indemnification clause in the contract.

Volume: 16, Issue: 22 - 11/30/2018


Design/build contracts do not confer upon contractors broad discretion to design the project. The contracts typically mandate not only the conceptual parameters of the project, but also extensive performance standards and design features. In order to be enforced against the contractor, however, the design requirements must be included as express terms of the contract.

A design/build contractor on a federal project was recently allowed to recover for a constructive change based upon a performance standard not stipulated in the contract. Read more.

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