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Services Available
The Construction Industry Group regularly assists clients in all aspects of the business of construction. We counsel our clients in labor and employment matters, draft and negotiate contracts for various project delivery systems, develop subcontract programs and assist in project administration. We resolve construction claims disputes, but strive to prevent conflicts by emphasizing risk management, planning, early intervention, claims prevention and avoidance techniques.
When disputes arise, we are there to help resolve contentious issues before they result in protracted litigation. When claims cannot be avoided, our attorneys use their extensive skills in mediation, arbitration and litigation to develop, present and defend construction claims. Such claims include contract disputes, changed work, delays, unforeseen conditions, workmanship and construction defects, among others. By taking a strategic and pragmatic approach, we assist our clients in achieving efficient, positive results.
Areas of Concentration
- Arbitration/Mediation/ADR
The industry continues to embrace the use of alternative methods of dispute resolution. Industry contracts continue to promote and sometimes require the use of ADR to resolve disputes. The Courts are also using ADR as a means to reduce the case load on the court system. Our attorneys keep abreast of the newest methods to resolve disputes and regularly use that knowledge and experience to represent clients before arbitration panels, mediators and other forms of alternative dispute resolution. Our attorneys act as mediators and sit on arbitration panels. This service helps add perspective when acting as an advocate for a client.
- Bid Protests & Bid Mistakes
The bid process raises a multitude of legal issues. Depending on whether the owner is a public or private entity, bidding procedures vary widely. To be a "responsive" or "responsible" bidder, the contractor must comply with the requirements of the invitation for bids or applicable procurement code. If the contractor is successful, it may then have problems in enforcing a subcontractor's bid. Other bidding issues may arise such as the validity of the owner's proposal, bidding mistakes, responsiveness of other contractor's bids, and minority participation provisions.
The Group has extensive experience in representing and assisting our clients in bid related matters. Our involvement begins in reviewing bid proposals for compliance with the applicable procurement requirements. If bidding irregularities arise, we have successfully represented our clients' interest before procurement review boards and other governing entities. Some of the Construction Industry Group's representative services to clients concerning bid related matters include:
- Successfully challenging a local government's Requests for Proposals when the RFP did not comply with the requirements of the applicable procurement code, resulting in the withdrawal of the RFP.
- Successfully representing a general contractor to enforce a subcontractor's bid.
- Successfully represented a general contractor against a municipality to withdraw an erroneous bid without forfeiture of the bid bond.
- Construction Claim & Contract Dispute Resolution
We regularly represent parties involved in contract disputes. Nearly every case involves the interpretation of the contract language. Accordingly, we emphasize pro-active steps to assure that our clients enter contracts capable of enforcement. We regularly review the contracts and advise of ways to reduce risks. In the event a contract dispute arises, we are prepared to fully promote the interests of our clients. Claims over contract interpretation often involve complex issues, including issue of notice, damages, payment, indemnity, and allocation of risks. Our understanding of the issues raised in contract claims and our relationships with industry experts on the complex issues allow our lawyers to represent the client's interests. Our goal is to educate the client and to agree on the best way to resolve the dispute.
- Construction Finance/Lender Liability
We understand construction finance and represent contractors and owners in their relationships with construction lenders. On behalf of our contractor clients, we become involved in the payment process by developing and negotiating construction escrows and construction loan documents such as the conditional assignment documents which contractors are often requested to execute. We have developed construction loan programs from both sides of the table, having represented substantial lenders in construction loan programs as well as contractors and owners. We become involved on behalf of contractors when the construction payment process is interrupted or delayed, and we pursue construction lenders who misuse the control granted in the construction loans to the detriment of our contractor clients.
- Contract Preparation & Negotiation
The contract is the foundation of almost every relationship in the construction industry. To be enforceable, the parties' intentions must be clearly memorialized in the construction contract. While several organizations provide standard construction contract forms, these standard forms do not meet the needs of each contractor or every project and may require substantial modification to protect the client's interests. The need for custom tailored contracts, rather than "boiler plate" contract provisions is especially important with emerging project delivery systems and requirements for additional construction related services. Our Construction Industry Group has extensive experience in drafting, modifying, and customizing contracts to meet each specific client's needs. Because we understand the construction industry and construction related issues, as well as the various legal principles governing construction in the various states, the Construction Industry Group provides clients with an unparalleled resource for their contract review and drafting needs. Our Group has vast experience in successfully negotiating complex owner/contractor agreements. We also prepare numerous contract and subcontract documents on a client-by-client basis or a project specific basis. We believe that one of the best litigation preventative measures is for our clients to enter thoughtful and appropriate contracts for their projects.
- Licensing
State and local laws require licensing of design professionals, general contractors and certain subcontractors. A contractor who fails to obtain the proper licenses may be subject to substantial fines, the inability to utilize a state's judicial system, rejection of bids or other sanctions. The Construction Industry Group understands licensing laws and how important proper licensing can be to our clients. Because licensing requirements are constantly changing, we work with our clients to assure that they are aware of the current licensing laws and license application requirements. Should licensing related problems arise, such as improper licensing or complaints to licensing agencies, the Group has extensive experience in successfully representing our clients before various licensing review boards.
- Mechanics' Lien
Mechanics' liens are a fundamental aspect of construction law, and Ogletree Deakins routinely represents owners, general contractors and subcontractors on filing, responding to, discharging, and contesting claims of lien throughout the country. We assist claimants in developing their claims as well as in preparing, serving and filing the correct documentation to establish lien rights. Once the claims are made, we work to resolve the underlying disputes in advance of litigation. If settlement is not possible, we move rapidly to litigate the matters and obtain recoveries.
Equally as often, we represent general contractors, subcontractors and owners in responding to mechanics' lien claims and disputes. In these instances, we advise our clients on how to minimize the administrative burden of these claims while at the same time protecting their future interests as against the other parties involved in the disputes. We manage several nationwide mechanics' lien litigation and claims dockets for our general contractor clients, in which we assert and defend mechanics' lien claims.
- Payment & Performance Bonds
Our attorneys have been involved in performance and payment bond claims and disputes. Our practice is focused primarily on the representation of contractors and subcontractors, but has also included the representation of owners and payment bond claimants. We have been involved in bond claim disputes involving schools, churches, military bases, hospitals, industrial plants, commercial projects, highways, and bridges. Through our work on performance and payment bond claim disputes we have obtained an in-depth understanding of the unique claims and defenses which may be asserted on private projects, as well as on public projects governed by the federal Miller Act and various states' ALittle Miller Acts. We use our experience to assist clients in making an early assessment of their bond claim dispute; developing a strategy for resolving the bond claim if possible; and, vigorously representing their interests in state or federal court if necessary.
- Project Administration
Our Construction Industry Group emphasizes a preventative approach to project administration. The best defense to construction related claims is an effective project administration system. Effective systems and procedures ensure that notice requirements are met, documentation of the project is maintained. Proper administration minimizes the risk that unpaid suppliers and sub-trades will turn up at the end of a job and that nonconforming work will be provided or unwillingly accepted. Our firm attorneys regularly counsel clients on the creation of policies, procedures and systems which produce positive business results and minimize legal exposure. We also conduct routine on-site training which emphasizes a practical approach to avoiding costly legal problems. Company officials consult firm attorneys on an ongoing basis before making decisions that may have adverse legal consequences. By providing these services, along with checklists and client alert bulletins, we keep our clients abreast of the latest issues that need to be addressed at the job site and home office. When problems arise during a project, Ogletree lawyers step in to help resolve the issues before they develop into claims and litigations.
- Project Closeout
Project closeout refers to resolving the work, accounting, paperwork and payment for a construction project. Project closeouts typically involve negotiating completion, correction and warranty of the work; resolving issues of extra or changed work, allowances, and owner claims; and negotiating, preparing and submitting final documents such as warranties, waivers, drawings and releases. We assist our contractor clients with all aspects of project closeout from closing individual subcontracts to closing the owner/contractor relationships and obtaining payment. We often deal with title companies, lenders, suppliers, subcontractors, designers and owner's representatives in this process of resolving disputes and forcing the parties toward final project conclusion.
- Public & Government Contracting
Public sector procurement presents contractors and government agencies with unique statutory and regulatory considerations which require specialized expertise and experience. Our Construction Industry Group attorneys possess the expertise and experience to serve clients dealing with public sector procurement at the federal, state and local levels. Among our members are attorneys with 20 or more years of experience representing government agencies and public sector contractors. We offer a depth of legal knowledge and practical experience in all phases of government contracting from the initial planning stages through contract completion and close-out. We have represented clients with matters from simple supply contracts through complex multimillion dollar design/build projects. We understand the special needs of public sector contracting and can assist clients in contract negotiations, regulatory compliance and, when necessary, contract litigation.
- Residential & Multifamily
Residential construction involves many of the same issues and concerns found in commercial construction. Generally, however, homeowners are less experienced in dealing with general contractors. In addition, homeowners have a more a personal stake in the project than a typical commercial owner. Thus, the opportunities for mis-communication and disputes are greater.
Ogletree Deakins represents both homeowners and builders in these disputes. Our experience with working with building inspectors, review boards, and experts allows us to efficiently and economically represent our clients and to resolve the disputes at a reasonable cost.
- Termination & Default
Whether you are the owner, the general contractor, or a subcontractor deciding to terminate a contract and responding to a termination are remarkably difficult decisions. The costs of wrongful termination can be enormous, and administrative burdens of retaining or dealing with a take over contractor can be intimidating. Notwithstanding these challenges, there are occasions where terminating the contract may be the proper step to take: i.e., where the owner is wrongfully withholding payments, the contractor is failing to adhere to critical schedules, or contractor's quality of work is inferior.
We have significant experience in evaluating these situations and advising our clients on how to proceed. We work first to confirm that the opposing party has materially breached the contract. We assist our clients in evaluating the practical effect of termination, in weighing benefits and risks of terminating the opposing party, or, of refusing to perform as demanded. We also assist our client in evaluating potential solutions other than termination. If termination is chosen, we then advise the client on how to satisfy the contractual requirements and how to prepare for the eventual litigation that termination often generates.
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