Category Archives: Contracting

Flow-Down Provisions: “Subject To” Language, Standing Alone, May Not Be Enough

If a general contractor-subcontractor dispute arises where the subcontract has a different dispute resolution provision than that of the prime contract, which clause governs? For example, the prime contract requires disputes to be litigated in state court, but the subcontract requires arbitration of disputes. Whether a court will enforce the dispute resolution clause in the prime contract as valid and binding on the subcontractor may depend on the existence and specific language of a “flow-down” provision. CONTINUE READING...

DBE REGULATIONS: A CAUTIONARY TALE

In the last six years, the Department of Transportation, acting through the Office of Inspector General, the Justice Department, and state and local investigative agencies, has actively cracked down on fraudulent disadvantaged business enterprise arrangements and their participants. CONTINUE READING...

Calculating Contractor’s Damages Under a Partially Performed Construction Contract

Since the work was two thirds complete at the time of termination, your thought is to take two thirds of the entire contract amount, subtract out payments received to date, and present this figure as your recoverable damages. Is this approach, which is known as the percentage of completion method, the correct one? CONTINUE READING...

Who’s Bound by a Forum Selection Clause? Contractors, Subcontractors, and Sureties?

Could a party end up litigating related claims in two separate forums if not all parties are bound by a forum-selection clause? To ensure efficiency and avoid inconsistent verdicts, all intertwined claims should be litigated together in the same forum, writes Sarah D. Rodriguez. CONTINUE READING...

Forum Selection Clause v. Miller Act Venue Provision: Where to Litigate?

On federal construction projects, the parties may contract where they would like to litigate potential disputes, but care should be given as to what venue is selected based on various factors. CONTINUE READING...