Supplemental Conditions

Category Archives: Contracts

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Exploding Pipeline (Construction) and Differing Site Conditions

By Wally Zimolong on Posted in Contracts

We are witnessing an explosive growth of newly constructed pipelines to carry shale oil and natural gas.  This is a tremendous opportunity for contractors looking for new markets to grow revenue.  Because pipeline construction is happening in many areas for the first time in decades, for many contractors it is probably  the first time they… Continue Reading

How to Count Material Suppliers Towards DBE Goals

By Wally Zimolong on Posted in Contracts, Public Bidding

(Note:  My DBE related blog post are always among the most read.  When I recently asked folks for help coming up with a future blog post topic, DBE “regular dealer” issues was a near unanimous response.) Under the Department of Transportation (“DOT”) DBE regulations, contractors can only count the value of the work actually performed by a… Continue Reading

Arbitrating Construction Defect Claims

By Wally Zimolong on Posted in Contracts, defects

The headline of a recent article on Lexology grabbed my attention:  “How to Guarantee the HOA Can’t Litigate the Condo Construction Defect Claims.”  The authors’ means to preventing litigation of construction defect claims was even more intriguing: arbitration clauses. How can arbitration clauses guarantee that no ligation over construction defect claims occurs?  It can’t.  Arbitration is litigation… Continue Reading

The Number One Thing Contractors Should Know About Condominium Construction

By Wally Zimolong on Posted in Contracts

The number one thing that a contractor bidding on a condominium project should know is actually two things: your client will  not occupy the structure you are building; and is trying to divest itself of ownership of what your are building as quickly as possible. There is probably no other project that you will build… Continue Reading

Free Guide to Construction Contracts

By Wally Zimolong on Posted in Contracts

Earlier this year I did a series of blog posts on 7 construction contract clauses that most often lead to litigation.  I collected those posts, edited them, and turned them in a free e-booklet for anyone to download and use.  Just clink the link below to download: Construction Contracts Guide

Lawyers, Guns, and Money – But Mostly Guns

By Wally Zimolong on Posted in Contracts, Public Contracts

The Justice Department’s decision to drop its False Claim Act case against Kellogg, Brown, and Root (“KBR”) over armed private security contractors (“PSC”) in Iraq says as much about the touchy subject over America’s increasing reliance on a private army as it does about the need to fully understand ALL of the terms of your… Continue Reading

Another Guilty Plea in a DBE Case

By Wally Zimolong on Posted in Contracts, Public Contracts

If you have not gotten the point by now that you should take DBE regulations serious, you should.  The DOT Inspector General posted these two item on its web page today: “On September 11, 2012, Michael Paletta, president of Crossboro Construction Contracting, pled guilty in United States District Court, New York, New York, to a… Continue Reading

Construction Defect CLE

By Wally Zimolong on Posted in Contracts

For Pennsylvania attorneys interested in the fast growing construction defect area of litigation or those just  looking for last minute CLE credits, I am moderating and presenting a CLE for the Philadelphia Bar Association entitled “Construction Defect Litigation: Claims and Coverage.”  It will take place August 21, 2012 from 12:00-4:15 pm live in Philadelphia and… Continue Reading

A Look at Drilling Contracts Under Pennsylvania Law

By Wally Zimolong on Posted in Contracts

You may have heard that there is a bit of natural gas drilling going on in Pennsylvania.  Thus far, the legal issues have dealt with environmental regulations, zoning, leasing, and rights of way.  The players involved in those matters have generally been landowners, government agencies, and the natural gas companies (the well operators).  The Courts… Continue Reading

DOL to Hold Prevailing Wage Seminar

By Wally Zimolong on Posted in Contracts, Davis Bacon, Public Bidding, Public Contracts

The Department of Labor is holding a seminar on the Davis Bacon Act and related federal prevailing wage laws in Philadelphia on July 10-12, 2012. To sign up for a training session, email name, title, organization, email address and training location to whdpwc@dol.com. For more information, visit http://www.dol.gov/whd/govcontracts.

The Problem With Low Bid

By Wally Zimolong on Posted in Contracts, Public Bidding

Time and time again I see the old adage “if it is too good to be true it probably is” applying to a project gone array.  This was apparently the case with the Palo Alto, CA Library project where the low bidder came in $8 million below the next low bid.  Whatever dreams the local authority… Continue Reading

Should Arbitration Be Avoided At All Costs?

By Wally Zimolong on Posted in Contracts

ENR has an interesting blog post about a panel discussion on claims held at the Structural Congress of the American Society of Civil Engineers in March where the topic of arbitration was discussed. I know there remains a small but vocal anti-arbitration bias among  attorneys but I found the advice of the attorney on the panel particularly surprising… Continue Reading

The Statutue of Repose Has Its Moment and Why You Should Care

By Wally Zimolong on Posted in Contracts, Public Bidding, Uncategorized

Most of the attention given to our country’s aging infrastructure has concerned what we should do to fix it.  Most of the attention contractors have given it has concerned how they can fix it. However, contractors should also be giving attention to their current liabilities on aging – and long ago completed – infrastructure projects. … Continue Reading

Pipe Dream

By Wally Zimolong on Posted in Contracts

Are you a pipe fitting contractor or excavator looking for more work?  Are you a material supply house looking for a swift selling product?  Then you better get to know gas-line pipe.  ENR reports that the discovery of natural gas formations present a tremendous opportunity for pipe line builders.  Meeting the demands of the natural… Continue Reading

7 Essential Construction Contract Clauses: Change Claims (Part 7 of 7)

By Wally Zimolong on Posted in Contracts

Even on modestly sized projects changes are inevitable and a project is rarely constructed exactly as originally designed. The reasons for changes in the work are as numerous as the stars in the sky. However, one certainty is that entitlement to additional compensation for changes is a frequent battle ground for construction disputes. Several areas… Continue Reading

Imagine No Lawsuits – It’s Possible if You Try IPD.

By Wally Zimolong on Posted in Contracts

Recently, I am become interested integrated project delivery (“IPD”) as a project delivery method for construction.  For those of you familiar with IPD, the concept truly involves a mind shift.  A true IPD project is a radical departure from the traditional project delivery methods we all are familiar with.  The reasons that IPD is a dramatic… Continue Reading

The New Highway Spending Bill and the Construction Manager Project Delivery Method

By Wally Zimolong on Posted in Contracts, Public Bidding

Most of the attention given to the  Moving Ahead for Progress in the 21st Century Act (“MAP-21″) highway spending bill that the Senate recently passed has been focused on the potential stimulating effect the bill with have on the construction industry in terms of dollars that will be allocated to certain projects.  Of interest to… Continue Reading

7 Essential Construction Contract Clauses: Design v. Performance Specifications (Part 6 of 7)

By Wally Zimolong on Posted in Contracts

The contract specifications will often instruct the contractor to do more than simply build a particular building element using certain materials. While sometimes the specifications will simply instruct the contractor to build an element in a particular fashion, other times the specifications will instruct the contractor to construct a building element in a manner that… Continue Reading

7 Essential Construction Contract Clauses: No Damage for Delay (Part 5 of 7)

By Wally Zimolong on Posted in Contracts, Uncategorized

Claims seeking compensation for delays in completion are a frequent source of litigation. Delays force a contractor to spend more money on manpower and material. Moreover, because a delayed contractor is forced to spend time completing the delayed project, it is unable to devote resources to other projects or potential projects. Therefore, the monetary value… Continue Reading

7 Essential Construction Contract Clauses: Pay-When-Paid v. Pay-If-Paid (Part 3 of 7)

By Wally Zimolong on Posted in Contracts

Terms and timing of payment are critical. A subcontractor that cannot manage cash flow is doomed. For terms of payment, most construction contracts use either a pay-when-paid or a pay-if-paid clause. Understanding the often subtle difference between the two is important for understanding when a subcontractor can expect payment. 1. Pay-when-paid. A pay-when-paid clause is… Continue Reading

7 Essential Construction Contract Clauses: Flow Down Clauses (Part 2 of 7)

By Wally Zimolong on Posted in Contracts

Subcontractors need to make sure that they are aware of all of the terms they are agreeing to in the subcontract. Many subcontracts contain so called “flow down” or incorporation by reference clauses, which incorporate the terms of the general contractor-owner agreement and bind the subcontractor to the general contractor to the same terms that… Continue Reading

7 Essential Construction Contract Clauses: Scope, Price, and Time (Part 1 of 7)

By Wally Zimolong on Posted in Contracts

I am frequently asked to review construction contracts both before a project starts and after a dispute arises. Unfortunately , the later is much more common. Contractors are often disappointed to hear that certain contract language limits or even prohibits their right to recover an otherwise justified claim or that the contract shifts risk to them… Continue Reading

Can a Subcontractor Sue an Owner for Unjust Enrichment?

By Wally Zimolong on Posted in Contracts

Construction lawyers representing owners frequently defend claims brought by subcontractors for unjust enrichment.  Lacking the privity necessary to bring a breach of contract claim, subcontractors allege that the owner has benefited (or been enriched by) the unpaid subcontractors work and under an unjust enrichment theory of liability should compensate the subcontractor for this work.  The… Continue Reading