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Taft Construction Practice Group
Creating the foundation for a solid future
Taft has been helping clients build their futures for more than 130 years. We are business attorneys who see the big picture. Our Construction Team has broad experience in the construction industry and can provide a solid legal foundation for the work you do. We can assist you with every aspect of your project, from start to finish, whether you are an owner, developer, design professional, contractor or supplier. Our construction team is as multifaceted as you are.
Let us provide the legal framework for all stages of your project so that you can concentrate on what you do best - building your future.
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When Only American Steel Will Do
Companies that do highway projects suffered a setback when the Federal Highway Administration (FHWA) withdrew its December 2012 memorandum on Jan. 6, 2016. The 2012 memorandum clarified the FHWA's previous position on the applicability of the Buy America Act to highway projects in light of the American Recovery and Reinvestment Act (ARRA).
Specifically, the FHWA had taken the position that for a manufactured product to be considered subject to Buy America it had to be manufactured predominantly of steel or iron. Predominantly was interpreted to mean that the product had to consist of at least 90% steel or iron content when delivered to the job site (or any site where precast concrete products were manufactured) for installation. According to the FHWA, miscellaneous steel or iron components, subcomponents and hardware necessary to encase, assemble and construct components that were not predominantly steel or iron were not subject to Buy America coverage.
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The Perils of Liquidation
Liquidation is one of those odd legal terms that has multiple meanings, some intuitive and others unexpected. In non-legal parlance, liquidation is what happens when you don't pay your loan shark, or when you cross James Bond. Legal terminology has an analogous usage, such as liquidation of a business in bankruptcy proceedings. But it also has an entirely different meaning that is of great importance in the construction industry - liquidation of damages. Ironically, liquidation of damages is one of the ways that a contractor may prevent liquidation of its business.
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Ouch! Contractor's Claim Rejected For Untimely Notice
Once again, a contractor has confronted the painful reality in Ohio that a failure to strictly follow the contractual notice of claims procedures, especially in a public contract, is perilous. In a recent case, despite delays on the project not caused by the contractor and despite breaches of the contract by the owner, the contractor's failure to provide its notice of claim within 10 days of the occurrence of the event giving rise to the claim and its failure to substantiate and certify its claim within 30 days of that occurrence, per the express requirements of the contract, constituted a complete waiver of its claims. End of story. No compensation for the substantial acceleration of the contractor's work due to a shortened construction schedule issued by the owner. And no compensation then afterwards for the owner substantially delaying the project. The clear lesson is that as difficult or undesirable as it is to give a formal notice of claim in the thick of a project, when the contractor is trying its best to work cooperatively with the owner and not exacerbate the problem, the contractor very likely waives its ability to assert a claim later if that contractor does not strictly follow the notice of claims procedures in its contract, particularly in a public contract in Ohio.
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