• Spearin Doctrine
• Termination
• Public Works GC/CM Subcontracting
• Prevailing Wage
• Licensing
• Liens
• 2021 Legislative Developments in Construction Law

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A proposed bill currently working its way through the Washington State Senate seeks to require owners of public works construction projects to compensate construction contractors for delay costs incurred due to the COVID-19 pandemic, a reversal of normal contracting practice in public works contracts.

Specifically, proposed Substitute Senate Bill 5333 contains the following language:
Any clause in a public works contract which purports to waive, release, or extinguish the rights of a contractor, subcontractor, or supplier to damages or an equitable adjustment arising out of a delay in performance which delay is caused by the COVID-19 pandemic emergency proclamations is against public policy and is void and unenforceable.

The current draft of the bill exempts situations where the parties have already executed a change order or modification addressing the effect of the COVID-19 pandemic on the performance of an existing contract.

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• COVID-19 Issues
• Statute of Repose: Court of Appeals Rejects “Fraud” Exception; Contractor Protected by Repose Statute Notwithstanding Submission of False Documents Attesting to Work Completion
• Subcontractors: Court of Appeals Denies Recovery to Subcontractor in WSDOT Design-Build Project Based on Noncompliance with Section 1-04.5 and Inapplicability of Quantum Meruit
• Construction Defects/Liquidated Damages: Court of Appeals Clarifies Contractor Burden of Proof on Affirmative Defense to Owner’s Defect Claim and Permits Apportionment of Liquidated Damages
• Termination: City Held Liable for Wrongful Termination of Public Works Contract; Not Entitled to Offset Credit for Costs to Repair Defective Work
• Public Works Lien Claims: Subcontractor’s Bond and Retainage Claims Rejected by Court of Appeal Due to Untimely Filing
• Subcontractor Listing Statute Amendment and Expansion (RCW 39.30.060)
• Apprenticeship Utilization / Bidder Responsibility Amendment (RCW 39.04.350)

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• Interlocal Cooperation Act: New Amendment Expands Piggybacking Authority
• Site Safety: Washington Supreme Court Addresses General Contractor’s Safety Obligations
• Bid Protests: New Amendments Impose Additional Timing Requirements
• Statute of Repose: Manufacturing Equipment Not “Improvements” Subject to Statutory Bar
• Bidder Responsibility Requirements: New Mandatory L&I Training
• Materialmen’s Lien Statute: Court of Appeals Upholds Finding of Clearly Excessive Lien
• Materialmen’s Lien Statute: Court of Appeals Confirms Award of Prevailing Party Attorneys’ Fees
• Apprenticeship: New Utilization Requirements on Public Works Projects
• Contract Integration: Court Rules Handwritten Edits Trump Printed Contract Provisions
• Arbitration: Court of Appeals Confirms Limited Review of Arbitration Award
• ADA: Federal Court Addresses Claims at T-Mobile Park
• Insurance: General Contractor’s Failure to Verify and Obtain Subcontractor Insurance Leads to Carrier Win in Federal Court
• Progressive Design-Build Legislation Takes Effect July 2019

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From Arcade, 3/19/19

“If ever there was a time to recognize and honor what we don’t know, it is now. Conversations surrounding mass space travel continue to gain traction, and politicians are dismantling regulations designed to protect environmental and human health with little consideration. We lack a comprehensive understanding of the impacts of our choices, from resource extraction to allowing chemicals into our environmental systems, yet we continue to act without attempting to identify and explore our significant knowledge gaps.”

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• Contractor Notice Obligations Enforced by Washington Supreme Court
• Continuing Validity of Bignold v. King County at Issue in Fish Bypass Renovation Dispute
• First Breach Doctrine Prevents Strict Enforcement of Notice Requirement
• King County Superior Court Interprets GC/CM Statute
• Design / Build Statute Changes under Consideration in 2019
• From the Vault: Beware of Contractual Insurance Requirements
• Attorney-Client Privilege Does Not Extend to Communications with Former Employees
• Expert Discovery: Draft Reports Not Discoverable Under Civil Rules
• Expert Discovery: Oso Landslide Expert Email Deletion Debacle
• 100 Years Later, Spearin Doctrine Continues to Evolve
• Erroneous Bid Documents Lead to Negligent Misrepresentation Claim
• Venue Issue Decided in Tunneling Dispute
• Excavation Contractor Held Liable Under Utility Locate Statute
• Incorporation of Arbitral Rules Divests Court of Jurisdiction to Decide Arbitrability
• Bond Principal Not Necessary Party in Action to Foreclose Against Release of Lien Bond
• Retainage Statute:  New Amendment Allows Subcontractors (Maybe) to Compel Release of Retainage

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• Statutes of Limitation/ Repose on Public Projects:  The Lay of the Land after the PFD/Mariners Cases
• Independent Duty / Economic Loss Doctrines: Recent Developments
• Underground Utility Damage Prevention Act
• Speculative Builder Arrangements
• Public Works Construction
• Worker Safety
• Subcontractor Issues
• Sustainability/Lean Construction/Built Green
• Electronic Bidding
• Tribal Sovereign Immunity

 To read the summary, click here>

From the WASWD Conference, April 11, 2014, presented by Pacifica partners John Parnass and Zak Tomlinson.

See presentation>