General – Page 13 – Duane Morris Construction Law

March 10, 2012July 29, 2014 by Patrick J. Kearney

NRC Will Issue New Safety Orders that Implement Fukushima-Related Recommendations

On March 9, 2012, the Nuclear Regulatory Commission (NRC) announced that it directed its staff to issue three Orders, which are effective immediately, to United States commercial reactor plants. According to the NRC, this expedited mandate attempts to implement “lessons learned from the accident at Japan’s Fukushima Daiichi nuclear power plant.”

Two of the Orders will apply to every U.S. commercial nuclear power plant, including those under construction and the recently licensed new Vogtle reactors. More specifically, the first Order requires the plants to better protect safety equipment installed after the 9/11 terrorist attacks and to obtain sufficient equipment to support all reactors at a given site simultaneously.

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March 5, 2012July 29, 2014 by Richard P. Dyer

New York State Court Voids Project Labor Agreement Requirement On DOT Project – Orders Re-Bid

A New York State court judge in Albany rejected a Department of Transportation (DOT) requirement of a Project Labor Agreement (PLA) on a highway project on Route 17 in the Town of Wallkill, Orange County. In an Article 78 proceeding, which challenges the determinations of a public administrative agency, a non-union low bidder on the DOT project, who refused to enter into a PLA negotiated by the DOT and made a part of the bid documents, challenged the award which ignored its bid and went to the second bidder at an added cost reported to be $4.5 million. Because the DOT failed to demonstrate that the use of the PLA advanced the interests of the State’s public bidding statutes, the petition was granted. Barring an appeal, which is expected, the DOT will be required to re-bid without the PLA requirement.

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March 2, 2012July 29, 2014 by Patrick J. Kearney

Administrative Fees Should Be Considered When Selecting a Dispute Resolution Provision

Both lawyers and clients agonize over the tactical advantages and disadvantages of arbitration and litigation. Generally, the reason for the prolonged deliberation is the parties are attempting to make a reasoned and informed decision when selecting a dispute resolution provision for their contract.

Some parties prefer arbitration, because they believe arbitration is faster and provides them with a decision-maker who is experienced in the industry. Others prefer litigation, because, among other things, they want access to a trial by jury. Costs are also a decisive factor in determining whether to arbitrate or litigate.

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February 17, 2012July 29, 2014 by Patrick J. Kearney

Pennsylvania State Court Enforces Pay-If-Paid Clause

Last summer, the United States Court of Appeals for the Third Circuit issued a precedential opinion in Sloan Co. v. Liberty Mutual Ins. Co., 653 F.3d 175 (3d Cir. 2011), that had broad implications for the construction community, because it affirmed an important industry-standard practice. More specifically, the Third Circuit held that a “pay-if-paid” provision in a subcontract, which provided that the general contractor’s receipt of full payment from the owner is an express condition precedent to the subcontractor’s right to full payment from the general contractor, was valid and enforceable by the general contractor and/or its payment bond surety.

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February 16, 2012July 29, 2014 by Patrick J. Kearney

Governor Christie Unveils His 2012 “Project Portfolio” for School Construction Projects

On February 15, 2012, Governor Chris Christie announced his recommendation of twenty new capital school construction projects in eighteen municipalities. These new school projects will be financed and administered through the New Jersey Schools Development Authority (“SDA”).

The 20 projects set to advance in 2012 were divided into three categories addressing: 1) high educational priority needs; 2) high educational priority needs that require further discussions; and 3) serious facility deficiencies.

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February 16, 2012July 29, 2014 by Richard P. Dyer

Practices For Reducing Exposure To False Claims Liability – An Interview

For those who have been following the developments in the false claims arena, you no doubt have that lingering thought that one of your or your client’s claims will inevitably attract a response that everyone loathes and fears – it’s a false claim! For those of you who don’t — watch out! So, I and Nicole Woolard, an associate in the Construction Group, sat down with Patrick McGeehin, CPA, of FTI Consulting to get his suggestions on best practice recommendations for avoiding federal and other public agency false claim allegations.

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February 10, 2012July 29, 2014 by Patrick J. Kearney

NRC to Issue First-Ever Combined Licenses for Construction and Operation of New Nuclear Reactors

On February 9, 2012, the Nuclear Regulatory Commission (NRC) announced it concluded its mandatory hearing on Southern Nuclear Operating Company’s (SNC) application for two Combined Licenses (COL) at the Vogtle site in Georgia, and that in a 4-1 vote, the NRC found the staff’s review adequate to make the necessary regulatory safety and environmental findings, clearing the way for the NRC’s Office of New Reactors to issue the COLs.

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February 9, 2012July 29, 2014 by Patrick J. Kearney

The Pennsylvania Commonwealth Court Approves Liquidation of First Sealord Surety Insurance, and Bonds Issued By This Surety Will Terminate Within 30 Days

On February 8, 2012, the Pennsylvania Insurance Department (the “Department”) announced that the Pennsylvania Commonwealth Court approved its petition to liquidate First Sealord Surety Insurance.

According to the Department’s Commissioner, Michael Consedine, the Department petitioned the Commonwealth Court for a liquidation order because “First Sealord Surety is no longer able to meet its policyholder obligations or pay its debts as they come due.”

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February 6, 2012July 29, 2014 by Patrick J. Kearney

Pennsylvania Does Not Adopt the 2012 International Code Council’s Model Construction Codes

On January 18, 2012, the Pennsylvania Uniform Construction Code Review and Advisory Council (the Council) voted 11 to 5 against the adoption of the 2012 I-Codes, the model building codes published by the International Code Council (ICC). The Council, however, did make an exception regarding the accessibility portion of the 2012 model code. Based on this vote, the Council is now charged with submitting a report to the Secretary of Labor and Industry by July 2012, and the bulk of the 2009 edition of the ICC’s codes will remain the basis for Pennsylvania’s uniform construction code.

Because the 2012 I-Codes were not adopted, the ICC’s new “green building” model code, called the International Green Construction Code will not be included in Pennsylvania’s construction code.

Many of Pennsylvania’s construction trade organizations celebrated the Council’s decision, because they believe the implementation of new codes would add additional costs that the construction industry cannot afford. Similarly, the Council voted against the 2011-I Codes, because, inter alia, the new codes were complicated and impossible to enforce.

February 2, 2012July 29, 2014 by Patrick J. Kearney

Big Cities Lost Construction Jobs in 2011

The Association of General Contractors of America released its construction employment data for 2011, and, as expected, the overall construction market remains weak. Although construction spending between December 2010 and December 2011 increased by 4.3 percent, two of the country’s largest cities, Philadelphia and New York City, experienced sharp declines in their construction workforce. More specifically, out of the 337 metropolitan areas listed by the AGC, Philadelphia reported the largest job loss with a loss of 4,800 construction jobs, a 7 percent decline. New York City was a close second with a construction job loss of 4,600 jobs, a 4 percent decline.

On the bright side, Lake County-Kenosha County, Ill.-Wis., added both the most and the highest percentage of new construction jobs (33 percent, 3,900 jobs). Other areas adding a large number of jobs included Edison-New Brunswick, N.J. (3,700 jobs, 11 percent); Portland-Vancouver-Hillsboro, Ore.-Wash. (3,600 jobs, 8 percent); Louisville-Jefferson County, Ky.-Ind. (3,100 jobs, 13 percent) and San Jose-Sunnyvale-Santa Clara, Calif. (3,100 jobs, 10 percent).

Overall, construction employment increased in 148 out of 337 metropolitan areas between December 2010 and December 2011, decreased in 128 areas, and stayed level in 61 areas. Association officials said that recent developments in Washington that could lead to passage of long-delayed highway, bridge, transit and aviation investment legislation could give a needed boost to construction employment in many areas.