VB CGC Practice Group
Vandeventer Black's Construction and Government Contracts Practice Group focuses on serving our business clients in the construction industry. We currently have offices in Norfolk and Richmond, VA, the OBX and Raleigh, NC, and Hamburg, Germany. For more information about Vandeventer Black, clink on the VB logo.
Tuesday, April 11, 2017
ConsensusDocs Updates 200 Series
ConsensusDocs continues to look to expand its use in the construction marketplace with its introduction of new 200 Series forms; the 235 Owner & Constructor Short Form Agreement (Cost of Work) and the 245 Owner & Design Professional Short Form Agreement. They update the prior 2014 versions; and are available at the ConsensusDocs website: http://www.consensusdocs.org/. Both are intended as condensed agreements, but with improved options. These are now part of the 100 plus documents in the ConsensusDocs catalog; which include the 200 Series (General Contracting); the 300 Series (Collaborative Contracting); the 400 Series (Design Build); the 500 Series (CM At-Risk); the 700 Series (Subcontracting); and the 800 Series (Program Management). ConsensusDocs has advised that additional revisions are intended in 2017 for the 410, 415, 420, 450, 460, and 500 document forms. ConsensusDocs offers its documents as alternative "coalition" project documents developed with the consensus of 40 construction industry associations, including designers, owners, contractors, and sureties. Those members have agreed to stop publishing their owner documents as ConsensusDocs forms are available, and in return for that agreement and their investment in the documents share in document sale profits. The ConsensusDocs forms, as with other industry consensus forms, offer alternative contracting tools for most construction projects; but as with all contracting tools require detailed review to determine appropriateness for specific projects.
Friday, December 9, 2016
Virginia BEST Job Site Safety Initiative Collaboratively Created by AGCVA and VOSH
The Virginia BEST (Building
Excellence in Safety, Health and Training) is a volunteer safety initiative
developed collaboratively between the Associated General Contractors of
Virginia and the Virginia Department of Occupational Safety and Health.
According to AGC Chairman, Mike
Cagle, the Virginia BEST program is “designed to reduce employee injuries,
improve employee morale and position AGCVA members to be more competitive by
becoming the best in class construction companies.” The program includes management
and employee involvement, worksite analysis, hazard prevention control, and
safety and health training; with three levels of participation from basic to
highest achievement.
Of particular note, one of the
tangible benefits of program participation is that companies reaching the
highest level will be given exemptions from planned construction inspections by
the VOSH program.
More information regarding the
Virginia BEST program is available on the AGCVA website, on last access linked
below:
Wednesday, November 30, 2016
Vandeventer Attorney Jim Cosby Part of Arbitration Seminar Faculty
Vandeventer attorney Jim Cosby is one of a number of distinguished faculty members participating in a continuing legal education program for Virginia CLE regarding arbitration in today's environment. The program has live (December 12, 2016) and webcast availability or phone (January 19, 2017) availability. For more information, use the below link:
Friday, November 25, 2016
Virginia Supreme Court Rejects Contractor's Argument of Subcontractor Flow Down Liability
The Virginia Supreme Court recently rejected a contractor's flow down liability claim against its subcontractors for a state construction project and defect claims asserted by the state against the contractor after the passage of the five year statute of limitations, rejecting among other things contractor's indemnity arguments. Below is a summary of the decision prepared by Vandeventer Black Construction Team attorney Gretchen Ostroff.
Supreme Court of Virginia Rules on Prime Contractor’s Flow-Down of Statute of Limitations to Subcontractors and Reaffirms Prior Decision on Enforceability of Indemnity Agreements
by Gretchen M. Ostroff, Esq., Vandeventer Black LLP
WHAT YOU NEED TO KNOW:
In a recent decision, the Supreme Court of Virginia found that general clauses incorporating provisions from the prime contract were insufficient to flow down to subcontractors the open-ended statute of limitations applicable to most public contracts, which can create gaps between a prime contractor’s liability to the owner and what it is able to recover from subcontractors for damages they cause. The Court also reaffirmed that agreements to indemnify a party for its own negligence are against public policy and therefore void in Virginia construction contracts.
On November 3, 2016, the Supreme Court of Virginia issued an important decision regarding subcontract flow down provisions. Hensel Phelps Construction Co. v. Thompson Masonry Contractor, Inc., addresses a contractor’s ability to flow down to subcontractors the open-ended statute of limitations applicable to certain Virginia public contracts and reiterates the Court’s prior ruling on the enforceability of indemnity provisions in construction contracts.
The dispute in Hensel Phelps arose out of a contract for construction of a student health and wellness center at Virginia Tech. As the prime contractor, Hensel Phelps hired several subcontractors to complete portions of the work. Twelve years after final completion, Virginia Tech sued Hensel Phelps to recover costs of repairing defective work on the project. Although Virginia’s statute of limitations on contract claims is five years, the statute of limitations does not apply to the Commonwealth, so claims against a contractor by a state agency—such as Virginia Tech—can be brought at any time.
Hensel Phelps settled the claim and in turn sued the subcontractors and their sureties (referred to in this article collectively as “subcontractors”) for breach of contract and indemnity. The subcontractors filed various motions, including to assert that Hensel Phelps’ claim was barred by the five-year statute of limitations. The trial court granted the motions, dismissing the lawsuit.
On appeal in the Supreme Court of Virginia, Hensel Phelps argued that the subcontractors waived their right to raise the five-year statute of limitations via flow downs in their subcontracts. Each subcontract contained a provision requiring the subcontractor “to assume any and all guarantee or warranty obligations owed by Hensel Phelps to [the owner] arising out of [performance of the subcontract].” Hensel Phelps argued that because it was indefinitely obligated to guarantee and warranty the work, the subcontractors were correspondingly obligated to Hensel Phelps. It also argued that a subcontract clause binding the subcontractors to Hensel Phelps “by the same terms and conditions which [Hensel Phelps] was bound to [the owner] under the Contract” flowed-down the unbounded statute of limitations to the subcontractors.
The Court disagreed, finding that neither of these general incorporation clauses waived the applicable limitations period, because they did not “expressly acknowledge the right to a limitations period or intent to waive that right.” The Court found that the subcontractors were not bound to the statute of limitations waiver in Virginia Code Section 8.01-231 because the subcontracts did not themselves contain a waiver of the statute of limitations and failed to incorporate by reference the waiver in the prime contract.
In an alternate argument, Hensel Phelps argued that its claims against the subcontractors did not arise until it settled Virginia Tech’s indemnification claim (in 2014), and therefore it had sued them within the five-year limit. The Court rejected this argument too. Relying on its prior decision in Uniwest v. Amtech Elevator Services, Inc., the Court found that the indemnification clause in the subcontracts was unenforceable because it required the subcontractors to indemnify Hensel Phelps for its own negligence, which in Virginia is prohibited in construction contracts. Consequently, the Court struck the entire indemnification provision from the subcontracts. Without this provision, the subcontracts imposed no obligation on the subcontractors to indemnify Hensel Phelps with regard to Virginia Tech’s claim. Importantly, the Court found that a properly drafted indemnity clause (compliant with Uniwest) would have preserved Hensel Phelps’ claim against the subcontractors.
The takeaways from Hensel Phelps are that:
1. Prime contractors cannot rely on general subcontract flow down clauses to extend the statute of limitations on claims against their subcontractors to mirror the statute of limitations (or lack thereof) applicable to claims by the owner. Hensel Phelps makes this clear on public contracts—where the statute of limitations does not apply to the Commonwealth or its agencies—but the principle probably applies equally where private parties agree to extend the prime contractor’s liability to the owner past the applicable statute of limitations. Contractors can solve this problem by including properly-drafted, specific indemnity provisions in their subcontracts acknowledging a subcontractor’s intentional waiver of its rights related to the statute of limitations and other issues the contractor wishes to flow down from the prime contract.
2. Contractors should review their indemnity clauses to ensure compliance with Uniwest—specifically the prohibition against indemnifying a party for its own negligence in a construction contract. An indemnity clause that violates this policy will not be reformed by the court to comply with the law—it will be entirely stricken, potentially leaving the prime contractor without recourse against subcontractors for losses they cause.
Hensel Phelps is a reminder to contractors to carefully review prime contracts and subcontracts and to consult with an attorney when negotiating these agreements to help minimize potential risks.
Supreme Court of Virginia Rules on Prime Contractor’s Flow-Down of Statute of Limitations to Subcontractors and Reaffirms Prior Decision on Enforceability of Indemnity Agreements
by Gretchen M. Ostroff, Esq., Vandeventer Black LLP
WHAT YOU NEED TO KNOW:
In a recent decision, the Supreme Court of Virginia found that general clauses incorporating provisions from the prime contract were insufficient to flow down to subcontractors the open-ended statute of limitations applicable to most public contracts, which can create gaps between a prime contractor’s liability to the owner and what it is able to recover from subcontractors for damages they cause. The Court also reaffirmed that agreements to indemnify a party for its own negligence are against public policy and therefore void in Virginia construction contracts.
On November 3, 2016, the Supreme Court of Virginia issued an important decision regarding subcontract flow down provisions. Hensel Phelps Construction Co. v. Thompson Masonry Contractor, Inc., addresses a contractor’s ability to flow down to subcontractors the open-ended statute of limitations applicable to certain Virginia public contracts and reiterates the Court’s prior ruling on the enforceability of indemnity provisions in construction contracts.
The dispute in Hensel Phelps arose out of a contract for construction of a student health and wellness center at Virginia Tech. As the prime contractor, Hensel Phelps hired several subcontractors to complete portions of the work. Twelve years after final completion, Virginia Tech sued Hensel Phelps to recover costs of repairing defective work on the project. Although Virginia’s statute of limitations on contract claims is five years, the statute of limitations does not apply to the Commonwealth, so claims against a contractor by a state agency—such as Virginia Tech—can be brought at any time.
Hensel Phelps settled the claim and in turn sued the subcontractors and their sureties (referred to in this article collectively as “subcontractors”) for breach of contract and indemnity. The subcontractors filed various motions, including to assert that Hensel Phelps’ claim was barred by the five-year statute of limitations. The trial court granted the motions, dismissing the lawsuit.
On appeal in the Supreme Court of Virginia, Hensel Phelps argued that the subcontractors waived their right to raise the five-year statute of limitations via flow downs in their subcontracts. Each subcontract contained a provision requiring the subcontractor “to assume any and all guarantee or warranty obligations owed by Hensel Phelps to [the owner] arising out of [performance of the subcontract].” Hensel Phelps argued that because it was indefinitely obligated to guarantee and warranty the work, the subcontractors were correspondingly obligated to Hensel Phelps. It also argued that a subcontract clause binding the subcontractors to Hensel Phelps “by the same terms and conditions which [Hensel Phelps] was bound to [the owner] under the Contract” flowed-down the unbounded statute of limitations to the subcontractors.
The Court disagreed, finding that neither of these general incorporation clauses waived the applicable limitations period, because they did not “expressly acknowledge the right to a limitations period or intent to waive that right.” The Court found that the subcontractors were not bound to the statute of limitations waiver in Virginia Code Section 8.01-231 because the subcontracts did not themselves contain a waiver of the statute of limitations and failed to incorporate by reference the waiver in the prime contract.
In an alternate argument, Hensel Phelps argued that its claims against the subcontractors did not arise until it settled Virginia Tech’s indemnification claim (in 2014), and therefore it had sued them within the five-year limit. The Court rejected this argument too. Relying on its prior decision in Uniwest v. Amtech Elevator Services, Inc., the Court found that the indemnification clause in the subcontracts was unenforceable because it required the subcontractors to indemnify Hensel Phelps for its own negligence, which in Virginia is prohibited in construction contracts. Consequently, the Court struck the entire indemnification provision from the subcontracts. Without this provision, the subcontracts imposed no obligation on the subcontractors to indemnify Hensel Phelps with regard to Virginia Tech’s claim. Importantly, the Court found that a properly drafted indemnity clause (compliant with Uniwest) would have preserved Hensel Phelps’ claim against the subcontractors.
The takeaways from Hensel Phelps are that:
1. Prime contractors cannot rely on general subcontract flow down clauses to extend the statute of limitations on claims against their subcontractors to mirror the statute of limitations (or lack thereof) applicable to claims by the owner. Hensel Phelps makes this clear on public contracts—where the statute of limitations does not apply to the Commonwealth or its agencies—but the principle probably applies equally where private parties agree to extend the prime contractor’s liability to the owner past the applicable statute of limitations. Contractors can solve this problem by including properly-drafted, specific indemnity provisions in their subcontracts acknowledging a subcontractor’s intentional waiver of its rights related to the statute of limitations and other issues the contractor wishes to flow down from the prime contract.
2. Contractors should review their indemnity clauses to ensure compliance with Uniwest—specifically the prohibition against indemnifying a party for its own negligence in a construction contract. An indemnity clause that violates this policy will not be reformed by the court to comply with the law—it will be entirely stricken, potentially leaving the prime contractor without recourse against subcontractors for losses they cause.
Hensel Phelps is a reminder to contractors to carefully review prime contracts and subcontracts and to consult with an attorney when negotiating these agreements to help minimize potential risks.
Wednesday, November 23, 2016
FLSA Salary Increase Halted
Below is a Legal Alert on a signficant FLSA issue from the Vandeventer Black Labor Law Team
LEGAL ALERT
FLSA Salary Increase Halted
A federal court has
enjoined the Fair Labor Standards Act (FLSA) salary increase. The court’s
order, entered on November 22, 2016, is a nationwide preliminary injunction. As
a result, employers do not have to comply with the new FLSA salary threshold
on December 1, 2016.
The U.S.
Department of Labor (DOL) issued a final rule on May 17, 2016, increasing the FLSA’s
salary threshold. The final rule, which was to go into effect on December 1,
2016, would have increased the salary threshold for the FLSA white collar
exemptions from $23,660 per year to $47,476 per year, and the annual
compensation threshold for the “highly compensated” exemption from $100,000 per
year to $134,004 per year. Had the new rule gone into effect, any employee paid
less than $47,476 per year would have been eligible for overtime pay. The DOL’s
final rule also provided for automatic adjustments to the salary and highly
compensated threshold every three years. Employers who have been grappling with
whether to give raises to employees paid less than $47,476, or budget for
increased overtime costs, or hire additional personnel to reduce overtime hours,
may now lay their concerns aside. The FLSA is not changing on December 1, 2016,
after all.
Twenty-one states
and over fifty business organizations filed suit to stop the DOL’s final rule.
Their suits were consolidated in the United States District Court for the
Eastern District of Texas. In its preliminary injunction, that Court ruled that
the DOL exceeded its authority by raising the salary threshold level so high that
it supplanted the “duties tests” for the FLSA white collar exemptions. The
court stated that the DOL “create[d] essentially a de facto salary-only test,”
thus subverting the importance of the FLSA exemptions’ duties tests. The Court
also found that the DOL did not have authority to create an automatic
adjustment to the salary threshold.
The injunction is
preliminary, but it signals that the Court is likely to issue a permanent
injunction later. The Court’s decision is the second recent defeat for
President Obama’s agenda: just last month, the same federal Court in Texas
issued a preliminary injunction blocking the federal contractor “blacklisting”
regulations. See Vandeventer Black’s Legal Alert on that topic
here.
For assistance reviewing your business' FLSA compliance, or other labor or employment matters, please contact us to set up a meeting with our labor and employment law team.
Anne
G. Bibeau
757-446-8517
Dean T. Buckius
757-446-8620
Arlene F. Klinedinst
757-446-8504
Wednesday, July 20, 2016
Not Registered with SAM? New Proposed Rule Would Preclude Offers
The System for Award Management (SAM) is a federal online portal providing contracting officers various informational access about companies doing business with the federal government. Under a new rule, DOD, GSA and NASA contractors must be registered in SAM prior to submitting offers or quotes. Additionally, the new rule will require contracting officers to use the name and physical address from contractor's SAM registration. More information about the proposed rule is available as of the posting of this blog at:
https://www.gpo.gov/fdsys/granule/FR-2016-05-20/2016-11977
https://www.gpo.gov/fdsys/granule/FR-2016-05-20/2016-11977
Thursday, July 14, 2016
Be wary of of increasing claimed IRS Agent phone calls
Vandeventer Black law partner and tax law practitioner Geoff Hemphill recently relayed a personal experience that others are also increasing seeing involving scam phone calls from persons claiming to be an "IRS Agent" and claiming that the individual owes back taxes. The fake IRS Agent then says the call is the last chance to pay the back taxes before the IRS files a lawsuit.
Geoff notes that the IRS does not make such calls, and that legitimate IRS contact comes through official written correspondence, with accurate reference to the individual's mailing address, giving notice of the assessed liability, appeal rights, and warnings of impending enforcement. So, the chances are high that any phone call from anyone purporting to be an IRS agent is a scam.
If you receive legitimate correspondence from the IRS it is important to promptly address it, and to seek legal counsel in appropriate circumstances to help you evaluate the assessed liability, to understand your rights, and to develop responsive strategies. Geoff in the example of the type of experienced tax attorney that can provide that type of legal counsel. But there is no need to lose sleep respecting such phony "IRS Agent" phone scams and it is important to not succumb to providing personal information or monies to those types of scammers.
Geoff notes that the IRS does not make such calls, and that legitimate IRS contact comes through official written correspondence, with accurate reference to the individual's mailing address, giving notice of the assessed liability, appeal rights, and warnings of impending enforcement. So, the chances are high that any phone call from anyone purporting to be an IRS agent is a scam.
If you receive legitimate correspondence from the IRS it is important to promptly address it, and to seek legal counsel in appropriate circumstances to help you evaluate the assessed liability, to understand your rights, and to develop responsive strategies. Geoff in the example of the type of experienced tax attorney that can provide that type of legal counsel. But there is no need to lose sleep respecting such phony "IRS Agent" phone scams and it is important to not succumb to providing personal information or monies to those types of scammers.
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