Accreditation: An extract from Thomas Reuters Practical Law. The full document is available at https://content.next.westlaw.com/practical-law/document/Ia6598a02a95a11ee8921fbef1a541940/Discovery-Disclosure-in-US-Construction-Arbitration.
Troutman Pepper attorneys Albert Bates, Zach Torres-Fowler, and Jamey Collidge published a Practice Note explaining key issues in the discovery (disclosure) process of a domestic US construction arbitration, such as conducting disclosure in an
This article summarizes the current landscape in Pennsylvania and California as COVID-19 restrictions are lifted, and highlights important considerations for employers in the construction industry in relation to vaccines and navigating a post-mask mandate world.
The COVID-19 pandemic continues to impact the construction industry, and many countries continue to implement new or more stringent restrictions on entry into their borders. Those travel restrictions can impact any company with cross-border supply chains or employee travel. This article addresses some of the travel restrictions in place in the United States, Canada, and members of the European Union (EU); exceptions to those requirements; and some best practices when navigating across borders.
Gov. Wolf’s businesses closure orders and the business waiver process recently came under fire from the Western District of Pennsylvania Federal Court and the Pennsylvania Auditor General Eugene DePasquale. Gov. Wolf’s prior orders forced nearly all activities of the construction industry to cease in-person operations.
Updated October 27, 2020
On August 6, President Trump issued an executive order banning WeChat, a Chinese app developed by parent company Tencent Holdings Ltd. that combines the capabilities of other social media, ride sharing, and payment apps. The ban could potentially affect all forms of businesses, including global construction, manufacturers, and equipment suppliers performing business in China and the U.S. WeChat, with its over one billion users, is indispensable to some businesses, especially to those in China because mobile payment apps like WeChat reign supreme over other payment forms, and WeChat is now used as a primary means to communicate.
On June 8, 2020, Level 10 Construction, LP (“Level 10”), a construction company hired by Sea World San Diego (“Sea World”), filed a Complaint in California federal court alleging that Sea World is withholding over $3.2 million dollars in payments from Level 10. In the Complaint, Level 10 alleged that Sea World has declined to issue payments until the Sea World park reopens. Sea World has remained closed since March 2020 due to COVID-19.
This article was originally published in Government Construction (Volume 5, Issue 2 – Summer 2020), an ABA Division 13 Quarterly Newsletter. It is republished here with permission.
The United States Civilian Board of Contract Appeals (the “Board”) recently issued a decision that may be particularly pertinent in light of the COVID-19 pandemic. In Pernix Serka Joint Venture v. Department of State,1 the Board rejected a contractor’s claim for additional costs related to demobilization and remobilization of the job site in Freetown, Sierra Leone, due to an Ebola virus outbreak. The Pernix decision should put government contractors on notice that, depending on applicable contract language, federal contractors may be entitled to schedule relief, but not costs, as contractors deal with COVID-19 related impacts.
On April 20, Pennsylvania Gov. Tom Wolf amended his March 19, 2020 Order titled, “Regarding the Closure of All Businesses That Are Not Life Sustaining.” Under the previous order, construction was permitted to continue only if the business qualified as “life-sustaining” and was performing emergency repairs or if the business obtained a waiver.
The amended order paves the way for construction projects to start again throughout the Commonwealth. On April 23, Gov. Wolf announced that statewide construction can commence on May 1, 2020 and provided additional information related to the amended order in an accompanying document titled “Guidance for Businesses in the Construction Industry Permitted to Operate During the COVID-19 Disaster Emergency.” Gov. Wolf specified that the amended order applies to “all businesses in the construction industry in the Commonwealth, including those in new construction, renovation, and repair[.]” Prior to May 1, all construction industry businesses must continue to follow existing guidelines. A full list of businesses that may maintain in-person operations before May 1 can be found here.
Much has been written about whether and how COVID-19 qualifies as a force majeure event, and some additional information can be found here. But typical force majeure provisions entitle contractors to only schedule relief. While force majeure clauses may limit exposure to liquidated or consequential damages for delays, contractors who incur increased costs resulting from COVID-19 related delays should carefully evaluate the entirety of their contractual rights to not only an extension of time, but also recover prolongation costs. To assist in this endeavor, this article looks beyond force majeure to other potentially relevant contractual provisions. Potential remedies under the various contractual clauses discussed below will depend on the specific contractual language and project-specific facts.
COVID-19 has created a severe disruption to the construction industry. Certain jurisdictions, including Boston, San Francisco and Pennsylvania, have placed restrictions on construction projects deemed “nonessential” and require waivers for certain projects to continue. Owners, contractors, suppliers and others may currently have more questions than answers. This article addresses some important concerns, and provides links to additional resources that more specifically address these concerns.