Practice/Industry Group Overview
Duane Morris' Construction Group is nationally ranked by Chambers USA among the leaders in the industry, with construction attorneys across the United States and around the world. The group's lawyers provide a full range of legal services to clients in all aspects of construction and government contracting, including:
- Contracting with public and private entities
- Bid protests and award disputes
- Owner/developer project management representation
- Construction administration services and risk management
- Contract interpretation, complex contract claims and surety litigation
- Claims preparation and negotiation
- Interference and installation/specification issues
- Contract defaults and terminations
- Delay and inefficiency claims
- Federal procurement issues/stimulus
- Alternative dispute resolution
- BIM (Building Information Modeling)
- Sustainable design and engineering
- LEED (Leadership in Energy and Environmental Design), and green building
- Bid, payment, and performance surety bonds
- Insurance coverage and claim disputes
- Mechanic's liens
- Contractor licensing matters
- Property damage claims
- Labor and employment counseling
- OSHA compliance and workplace safety issues
Duane Morris construction lawyers assist clients in addressing the legal challenges of engaging in the design, development, financing, performance and management of major construction and government procurement contracts. Our group has special experience working on complex, high-visibility projects in New York and other cities. Our national practice includes attorneys who regularly represent public and private owners and developers, prime contractors and subcontractors, construction managers, equipment suppliers, architects/engineers and other design professionals, and sureties. This breadth of experience enables us to handle the complete spectrum of issues arising before, during and after project completion.
Several of our construction partners have been ranked as leaders in the field by Chambers USA. One of our senior New York construction partners served for more than 10 years as general counsel to one of the East Coast's largest construction companies, and another served for 20 years as principal outside counsel to one of the largest construction companies in the United States.
Lawyers from the Construction Group frequently work with attorneys from Duane Morris' other practice areas to address the many issues associated with any particular project-whether tax, finance, real estate, environmental, energy and, when necessary, white-collar criminal defense, corporate investigations and regulatory compliance, or any other relevant issue. The firm's full range of practices enables us to offer clients sophisticated legal services that are coordinated and streamlined from coast to coast and internationally.
In addition, when public relations and quasi-political issues impact construction projects, we have been successful in coordinating teams of outside consultants-including public relations specialists and local government contacts-and getting projects back on track.
Range of Services
Contract Formation and Performance
- Developing contract documents that expressly allocate the risk, responsibility and rewards for proper performance essential to a successful project.
- Utilizing our considerable experience with numerous forms of contracts, from customized forms to standard industry and government forms-including the contracts of the American Institute of Architects (AIA), Consensus DOCS, the Engineers Joint Contracts Documents Committee (EJCDC) and the Construction Management Association of America (CMAA)-to develop the most appropriate contract forms for any project or task.
- Advising owners, developers, prime contractors, subcontractors, engineers, architects, other design professionals, sureties or other project team members, in forming and managing contractual relationships.
- Monitoring projects during construction to ensure awareness of issues and potential pitfalls, and to assist in the prevention or resolution of claims.
- Presenting seminars and written materials to our clients to educate their project managers, superintendents, engineers and others to the common pitfalls encountered on a construction project.
- Reviewing contract forms and procedures so clients are better able to avoid many situations that might result in claims or delays.
- Handling claims, including changed or unforeseen conditions, delays, disruptions, loss of productivity, acceleration, payment disputes, insurance coverage and allegations of defective design or construction.
- Calculating extended project costs and unallocated home-office overhead using industry-recognized formulas, recommending qualified consultants to do so and, where appropriate, working closely with claims consultants to maximize benefits and minimize risks for our clients.
- Where possible, attempting to achieve an early and fair resolution of construction disputes without the expense and disruption of litigation.
- Engaging in all forms of alternative dispute resolution, including mini-trials, mediations and arbitrations, and presenting strategies to attempt to resolve disputes promptly, amicably and short of trial.
- When early resolution is not possible, our attorneys have considerable experience litigating complex, highly technical construction claims in trial and appellate courts at state and federal levels, before contract appeals boards and other administrative tribunals, as well as arbitrating before domestic and internationally sanctioned panels.
Government Contracts and Bid Protests
- Providing a full range of services in connection with government contracting at the local, state and federal level, and with international agencies.
- Duane Morris attorneys have litigated precedent-setting cases involving procurement laws and the awards process, and have written extensively on competitive bidding and related subjects.
- Representing public owners, contractors, subcontractors, engineers, architects, suppliers and sureties in the procurement process, including bidding, bid protests, contractor selection and awards processes used by public agencies.
- Counseling clients on claims arising under government contracts, including analysis of entitlement and claims pricing issues, and claims notification and certification requirements.
Default/Termination Claims and Surety Practice
- Handling the complex issues and claims arising from contractor and subcontractor default terminations as well as failed construction projects that can result in numerous payment and performance bond claims and default or termination of bonded contractors.
- Having extensively represented all sides of such disputes, we can provide our clients with unique insights into handling default terminations, negotiating no-cost terminations in many cases or obtaining terminations for convenience on behalf of improperly terminated contractors, as well as working and negotiating with, and litigating for or against sureties relating to payment and performance bond claims and indemnity obligations.
Architects, Engineers and Other Design Professionals
- Representing architects, engineers and other design professionals in contractual issues related to project delivery systems such as design-build, design-bid-build, fast-track or any combination, and advising on their relationships with owners, consultants, contractors or subcontractors, during the pre-design, design, construction and post-construction phases.
- Defending or prosecuting claims by or against design professionals, and by or against professional liability insurance carriers. Our practice in this area is enhanced by the group's experience in the formation and management of design professional practices.
- Advising clients concerning the competitive retention of insurance consultants and brokers including the preparation of request for proposals.
- Advising clients concerning various controlled insurance programs.
- Assisting in the negotiation of insurance policies and coverages for liability, pollution and property risks.
Labor and Employment
Our Employment Law practice represents management on such far-ranging issues as:
- Equal Employment Opportunity Commission concerns, and wage-and-hour (Davis-Bacon) matters.
- Personnel administration, Americans with Disabilities Act and Family Medical Leave Act compliance and related matters.
- Assisting clients' compliance with affirmative action requirements and First Source requirements (when applicable) at the bidding stage and with any audits or investigations.
- Providing clients with representation in union employment and labor-related problems.
Occupational Safety and Health Act (OSHA) Compliance Issues
- Helping clients address the ever-changing health and safety regulations of federal, state and municipal agencies to protect individuals and property in the workplace.
- Assessing the scope and application of these regulations, the potential liabilities in ongoing project activities and appropriate responses to inspection issues or the issuance of subpoenas and citations.
Managing Environmental Risks
- With Duane Morris' environmental attorneys, keeping clients abreast of environmental risks on construction projects such as federal CERCLA and RCRA liabilities and compliance with state statutes and regulations.
- Representing environmental engineers, contractors, owners, sureties and insurance carriers in assessing environmental risk and resolving environmental issues in construction projects.
Sustainable Designed Construction
- Counseling clients on alternatives available to address sustainable/high energy efficiency/green building design and construction.
- Investigating available incentives and modeling contract documents to reflect the added responsibilities and risks.
Property Damage Claims
- Representing owners, contractors and other project participants in claims which often become very complex, arising out of property damage to projects during construction or to completed projects.
- Drawing on extensive experience in litigating numerous property damage cases, as well as our long history of dealing with insurance companies and claims adjusters, adding value on coverage questions and in settlement negotiations.
Participation in Construction Industry Groups
Our attorneys participate in, and hold leadership positions in, many construction industry organizations, including:
- Associated General Contractors of America
- American Institute of Architects
- Public Contract Section of the American Bar Association
- American Bar Association Construction Litigation Committee
- American Bar Association Forum on the Construction Industry
- Construction Financial Management Association
- Design-Build Institute of America
- International Bar Association
- American Arbitration Association
- London Court of International Arbitration
- Society of Construction Law
- Washington Building Congress
- Construction Law and Litigation Committee of the International Association of Defense Counsel
- U.S. Green Building Council's LEED AP Program
Past Seminar Materials
Articles Authored by Lawyers at this office:
Arbitration Award Stands Despite Apparent Error of Law
Stanley A. Martin, March 25, 2015
A federal appellate court has reminded the business community that a mistake of law by an arbitration panel will not ordinarily be grounds to overturn the award. The arbitration concerned a terminated financial services consultant, who filed for arbitration almost two years after the termination....
Attacks on Prevailing Wage Laws - Where’s the Tipping Point?
Stanley A. Martin, March 25, 2015
News reports this week cover legislative action in four different states to reduce the scope of prevailing wage laws on public projects. Whatever your opinion on prevailing wage laws - love them, hate them, or somewhere in the middle - the effort to reduce the reach of those laws appears to be...
Prevailing Wage Violation Invites Unsuccessful Bidder’s Tort Claim
Robert C. Hendrickson, March 25, 2015
Failing to pay prevailing wages on a public works project can have consequences beyond labor code penalties and claims for unpaid wages. Contractors who “unlawfully deflate their labor costs” by intentionally violating prevailing wage laws in order to win contracts are also subject to...
Mechanic’s Lien Amount Shall Not Include Attorneys’ Fees
Stanley A. Martin, March 18, 2015
The Utah Supreme Court has held that a mechanic’s lien does not include attorneys’ fees incurred by a contractor even when the lien statute allows recovery of reasonable legal fees. The court distinguished between the right to recover attorneys’ fees, and the amounts that could be...
Defense to Government Position is Not a Claim Subject to Contract Disputes Act
Stanley A. Martin, March 13, 2015
The government claims a contractor's work is defective. The contractor says in defense that problems are due to design deficiencies and not construction errors. Is the contractor's position a "claim" subject to the Contract Disputes Act (CDA)? The U.S. Federal Court of Claims says no.
Insurance Coverage for Damaged NYC Tower Crane
Stanley A. Martin, March 13, 2015
Readers will recall photos of a tower crane damaged by Hurricane Sandy. Construction of the NYC high-rise building known as One57 was underway when the crane was lashed by hurricane-force winds. The crane jib was apparently blown backwards, and ended up dangling over the counterweight almost 1,000...
Updates to OSHA's Recordkeeping Rule
Jose A. Aquino, March 13, 2015
Under the Occupational Safety and Health Administration's (OSHA) Recordkeeping regulation (29 CFR 1904) covered employers are required to prepare and maintain records of serious occupational injuries and illnesses. Revisions to the OSHA reporting requirements went into effect on January 1, 2015....
AIA Contract Dispute Resolution Choices - What Does “Other” Mean?
Stanley A. Martin, January 23, 2015
The AIA contract forms include three options for dispute resolution: arbitration, litigation, and “other.” A Connecticut Superior Court judge has concluded that parties who chose “other” by specifying “Architect” were in fact choosing arbitration by the project...
Res Judicata, Claim Splitting, and Arbitration
Stanley A. Martin, January 23, 2015
An arbitration claimant who sought to preserve the right to pursue related claims against the same opponent has found its efforts barred by the Rhode Island Supreme Court, in a case with several procedural twists and turns. The case has all the hallmarks of an inequitable outcome for the benefit of...
The Irony of Defamation Lawsuits - Construction Edition
Stanley A. Martin, January 02, 2015
There is a certain irony in any defamation lawsuit, which is a public request for redress arising from a statement the claimant says should not have been made public. Now we have the construction version. Company A sues Company B, claiming statements of B about the quality of A’s work defamed...
When the “Discovery Rule” is Irrelevant
Adam L. Gill,Jeffrey L. Hamera, November 18, 2014
Can the statute of limitations for a claim expire even before a project owner knows that it has a claim? This is a very real possibility if one is not careful in drafting contracts. Courts generally recognize that sophisticated business entities should be permitted to forfeit rights in contracts,...
Failure to Comply With Prompt Pay Act Trumps Claimed Failure to Perform
Stanley A. Martin, November 17, 2014
When a New Jersey public authority failed to comply with the NJ Prompt Pay Act, it was obligated to pay the contractor even though it argued the contractor’s work was defective. That was the decision of the NJ Appellate Division in the case of Aire Enterprises v. Warren County. After...
Follow the Rules, or Don’t Lose the Money?
Stanley A. Martin, November 17, 2014
What’s more important: following public procurement rules, or making sure that federal funding won’t disappear? That’s the question being debated in Sacramento, where a bid dispute has put $6.9 million in federal funding at risk; see the article in ENR. There may be a relatively...