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The Punch List
Construction and Surety Law News
Spring 2013
Vol. 3
 

Greetings! 

 

As we finally turn the page to Spring, we hope you are enjoying fine weather and that we will see many of you in just a few weeks in either sunny California for the ABA Forum on the Construction Industry's Annual Meeting or in Orlando for the Fidelity and Surety Law Committee's Spring Meeting.

  

If you would like more information about any of the topics addressed in this newsletter, please feel free to contact us.

 

Sincerely,

 

BrigliaMcLaughlin, PLLC

Shannon J. Briglia and Lauren P. McLaughlin 

Robert J. Dietz, Shoshana E. Rothman, and Shiva S. Hamidinia

SDVOSB Successfully Defends SBA Size And Eligibility Protest
 
THE RESULTS OF THIS CASE DEPEND UPON A VARIETY OF UNIQUE FACTORS.  CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE.

 

BrigliaMcLaughlin recently assisted a client in the successful defense of a U.S. Small Business Administration (SBA) protest that challenged that client's size and service-disabled veteran-owned small business (SDVOSB) eligibility status to receive the award of a series of U.S. Department of Homeland Security task orders. BrigliaMcLaughlin provided a comprehensive response to the SBA, which resulted in the denial of the protest and a formal determination by the SBA in favor of BrigliaMcLaughlin's client affirming its size and SDVOSB eligibility status. 

Maryland Federal Court Strictly Enforces The Miller Act's 90-Day Notice Requirement For Second Tier Subcontractors

 

The federal Miller Act, 40 U.S.C. 3131-3134, requires a second tier subcontractor (a subcontractor or supplier with no direct relationship with the prime contractor) who wants to file suit on a payment bond in connection with a federal construction project to provide written notice of their claim within 90 days from the last date on which it performed labor or furnished or supplied material for which the claim is made. The purpose of the Miller Act's 90-day notice requirement "is to allow general contractors to make final payments to subcontractors after waiting a reasonable amount of time to determine whether there are outstanding claims by second-tier subcontractors." United States ex rel Alban Tractor Company, Inc. v. Hudson Ins. Co., 2013 WL 509151 (Civil No. CCB-12-1538) (D. Md. Feb. 11, 2013) (slip opinion).  Read more 

Fourth Circuit Enforces Arbitration Clause In Subcontract Against Performance Bond Surety

 

A recent ruling by the Fourth Circuit considered an important issue for sureties, their principals, and claimants on construction projects regarding the enforceability of arbitration clauses against the surety. In Great American Insurance Co. v. Hinkle Contracting Corp., No. 12-1014, 2012 WL 5936178, *1 (4th Cir. Nov. 28, 2012), a grading and drainage subcontractor, CME, defaulted on a state DOT project. CME's performance bond surety, Great American, filed a declaratory judgment action seeking a ruling that it had no obligation to complete CME's work on the basis that the general contractor, Hinkle, breached the subcontract by failing to make payment to CME. The general contractor sought to stay the declaratory judgment action and compel arbitration with the surety based on the subcontract's arbitration provision, which was incorporated into the performance bond. The district court denied Hinkle's motion, ruling that the surety's claims were unique to the surety, and therefore, outside the ambit of the arbitration clause.  Read more   

Recent Court Of Federal Claims Decision Demonstrates The Peril To Federal Contractors Of Submitting Inflated Claims
  
Over the last few years, government contracting practitioners have noted an increase in the federal Government's efforts to combat contractor fraud. At the Court of Federal Claims (COFC) Judicial Conference in November 2012, several practitioners lamented that the Department of Justice (DOJ) may have developed the unofficial policy of actively searching for fraud in every case before the COFC and filing a fraud counterclaim if potentially supportable in order to gain a litigation advantage. The harm to government contractors caused by a finding of fraud can be severe, as the Government has several potent anti-fraud remedies in its arsenal.  Read more
BrigliaMcLaughlin's Legislative Watch

 

New Mechanics' Lien Requirements for Virginia

 

On February 21, 2013, both chambers of the Virginia General Assembly signed HB 1913, which amends the Virginia mechanics' lien statute to require that mechanics' lien claimants now include on the face of any mechanics' lien their contractor license number and date of issuance, or certify that a license is not required for the work done for which the contractor claims payment. On March 13, 2013, Governor McDonnell signed this bill, which will now become law on July 1, 2013. For the full text of this bill, click here.

 

New Exam Required For Certain Contractors in Virginia

 

Effective December 1, 2012, the Board of Contractors of the Virginia Department of Professional and Occupational Regulation (DPOR) issued new regulations amending the eligibility criteria for Qualified Individuals associated with licensed contractors.  Now, a board-approved written exam for Qualified Individuals will be required for licensed specialties that had not previously required Qualified Individuals to pass such an exam. 

 

To determine whether this amendment affects your business, the DPOR has asked that contractors contact the Board of Contractors staff at (804) 367-8511 or contractor@dpor.virginia.gov

 

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Articles In This Issue
SDVOSB Successfully Defends SBA Protest
Maryland Strictly Enforces Miller Act
Fourth Circuit Enforces Arbitration Clause Against Surety
Court of Federal Claims Examines Inflated Claims
BrigliaMcLaughlin's Legislative Watch

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Firm News:
  

Shannon Briglia recently presented a seminar on minimizing legal risk to the Glass Association of North America (GANA) Building Envelope Contractors (BEC) annual conference in Las Vegas, NV in March 2013.

 

Lauren McLaughlin was a panelist at the American Bar Association (ABA) Surety & Fidelity Law Committee Midwinter Meeting discussing risk-shifting clauses from the surety's perspective in New York, NY in January 2013.
  
Upcoming Events:

 

The American Bar Association (ABA) Forum on the Construction Industry will be holding its 2013 Annual Meeting on April 25-27, 2013 at the St. Regis Monarch Beach Resort in Dana Point, CA.  To register for this event, please click here to visit the Forum's website.  
 

The ABA Fidelity and Surety Law Committee will be holding its Spring Meeting on May 2-3, 2013 at the Walt Disney World Swan Hotel in Orlando, FL.  To register for this event, please click here to visit the Committee's website.

 

We hope to see you at these exciting events!           

 

 

Legal Seminars Offered By BrigliaMcLaughlin:

 

BrigliaMcLaughlin provides

in-house legal seminars to many of our clients on lessons learned in litigating complex construction cases, and are available to speak to your employees on topics ranging from the drafting and negotiation of contracts, default and termination, litigation avoidance in a troubled economy, to employment and labor law issues that affect today's workplace.

 

Please contact us to schedule a seminar tailored to the needs of your business.