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Kevin advises real estate developers on all aspects of major construction projects, including contract negotiation, issues that arise during construction, resolution of claims, and prosecuting or defending litigation.

INTRODUCTION

Latent construction defects can surface years after construction ends. Every defect is different, but they all raise the same question: who is responsible? This is a simple question with no simple answer, and warranty disputes can lead to huge losses for owners and contractors alike: owners are forced to pursue warranty claims and risk incurring costs of correction that should have been covered, while contractors bear the risk of “call back” repair work for which they may not be responsible. Both parties have multiple tools at their disposal to clarify their obligations and allocate responsibilities, but many (if not most) construction contracts fail to achieve the appropriate balancing of the risks each party should properly take on.

The $1.2 trillion Infrastructure Investment and Jobs Act (IIJA) is poised to change how the United States views and implements public-private partnerships (P3s). At a high level, the IIJA encourages public entities to consider P3s and incentivizes private entities to engage in the P3 market by dismantling roadblocks that have prevented the widespread adoption of P3s in the U.S. — including by removing government red-tape, increasing the availability of federal funding, and delivering much needed technical expertise and guidance to successfully execute P3s. In this article, the first in a series, we explore (1) the doubling of private activity bonds, (2) a P3 technical assistance program for government agencies, (3) TIFIA driven value-for-money analyses, (4) the streamlining of important environmental reviews, and (5) the creation of a government reporting feedback loop on P3 projects.