Connecticut’s New False Claims Act Increases Risk to Public Construction Participants
Robinson+Cole | Construction Law Zone
by Fred Hedberg and William Stoll
1w ago
Below is an excerpt of an article published in the Winter 2023 issue of CONNstruction magazine, the quarterly publication of the Connecticut Construction Industries Association. After several decades, Governor Ned Lamont signed a bill into law, effective July 1, 2023, An Act Concerning Liability for False and Fraudulent Claims, Public Act No. 23-129, eliminating language that previously limited enforcement of Connecticut’s False Claims Act to claims relating to a state-administered health or human services program. The revisions dramatically expanded potential liability under the Fa ..read more
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American Arbitration Association Revises Construction Industry Rules and Mediation Procedures
Robinson+Cole | Construction Law Zone
by Dennis Cavanaugh and Larry Grijalva
1w ago
The American Arbitration Association (AAA), one of the longest-standing and experienced alternative dispute resolution (ADR) administrators, has unveiled a significant update to its Construction Industry Rules and Mediation procedures. This update, last revised in 2015, became effective March 1, 2024. Changes to the AAA Construction Industry Rules are significant as these rules are incorporated by default in American Institute of Architects standard construction forms, which are widely used in the industry. Advancements in remote access technology drive a substantial number of new changes. Ot ..read more
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NY Prompt Pay Act for Private Construction Caps Retainage at Five Percent
Robinson+Cole | Construction Law Zone
by Lisa Andrzejewski
3M ago
New York’s Prompt Pay Act, which sets the standards that govern private commercial construction contracts exceeding $150,000, was amended effective November 17, 2023. The Amendment known as Senate Bill 3539 provides two significant changes which advance the timing of payments from the owner to the contractor. First, Section 756-a now permits a contractor to submit its final invoice for payment to the owner upon substantial completion (as “such term is defined in the contract or as it is contemplated by the terms of the contract”). Failure to release retainage as required by the law will subje ..read more
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Federal DOT’s Disadvantaged Business Enterprise Program Challenged as Unconstitutional
Robinson+Cole | Construction Law Zone
by Bill Wilson
3M ago
In the wake of the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (SFFA), which limits the reach of race-based affirmative action programs in college admissions, a federal lawsuit was recently filed in the Eastern District of Kentucky alleging discrimination against the U.S. Department of Transportation’s Disadvantaged Business Enterprise (DBE) program: Mid-America Milling Co., LLC v. Department of Transportation, Case No. 3:23-cv-72. Initially adopted in 1983, the DBE program aimed to address discriminati ..read more
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Construction Employers Beware: New, Easier Union Representation Process
Robinson+Cole | Construction Law Zone
by Guest Contributor
5M ago
This week we are pleased to have a guest post by Robinson+Cole Labor Relations Group chair Natale V. DiNatale. The NLRB has reversed decades of precedent and made it far easier for unions to represent employees, including construction employers, without a secret ballot election.  Initially, it is important to understand that this new standard applies to traditional “9(a)” relationships, not prehire agreements under 8(f) of the NLRA.  While both types of relationships exist in the construction industry, 9(a) relationships require support from a majority of employees, w ..read more
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OSHA Moves to Clarify Construction PPE Standard
Robinson+Cole | Construction Law Zone
by Guest Contributor
8M ago
This post was authored by Jon Schaefer, who is a member of Robinson+Cole’s Environmental, Energy + Telecommunications Group. Jon focuses his practice on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs. On July 20, 2023, the Occupational Safety and Health Administration (OSHA) published a notice of proposed rulemaking to clarify the personal protective equipment (PPE) standard for the construction industry. Currently, the PPE standard for the construction industry, unlike for ..read more
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Rhode Island Affirms The Principle That Sureties Must be Provided Notice of Default Before They Can be Held Liable for Principal’s Default
Robinson+Cole | Construction Law Zone
by Dennis Cavanaugh and Tasnuva Islam
9M ago
Most bond forms in use today, including the standard form AIA A312-2010, contain express condition precedents that trigger a surety’s obligations under the bond. Under a performance bond, the bond obligee is required to provide formal notice to the surety that the principal has materially defaulted and that the surety must begin to perform under the terms of the bond.  This principle is grounded in the idea that the surety should have an opportunity to address the default and investigate the claim so as to mitigate its own liability. Failure to provide sufficient notice will discharge th ..read more
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New York Restrictions on Flow Through Provision in Subcontracts
Robinson+Cole | Construction Law Zone
by Bill Wilson
9M ago
Most subcontracts include a flow through provision (also called flow down and incorporation clauses) stating that the subcontractor and contractor are bound by the same obligations as set forth in the prime contract between the contractor and owner.  Many jurisdictions interpret such provisions narrowly, as illustrated in a recent case out of New York.  In Amerisure Insurance Company v. Selective Insurance Group, Inc., 2023 WL 3311879, the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s interpretation of a flow through clause in a construction subcontract ..read more
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Another Law Will Increase Construction Costs in New York
Robinson+Cole | Construction Law Zone
by Bill Wilson
11M ago
New York recently enacted legislation known as Carlos’ Law, which increases penalties for corporate liability for the death of, or serious injury to, an employee.  The bill, S.621B / A.4947B, was named after Carlos Moncayo, a construction worker killed in a trench collapse on a New York City construction project.  Moncayo’s employer repeatedly flouted safety rules and ignored warnings of dangerous conditions on its construction site before failing to properly support the trench that collapsed and killed Moncayo.  Moncayo’s employer was convicted for his death, but the penalty w ..read more
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Connecticut Court Clarifies a Limit on Payment Bond Claims for Public Projects
Robinson+Cole | Construction Law Zone
by Bill Wilson
11M ago
In All Seasons Landscaping, Inc. v. Travelers Casualty & Surety Co., No. DBD-CV21-6039074-S, 2022 WL 1135703 (Conn. Super. Ct. April 4, 2022) the plaintiff, a subcontractor on a state project, commenced a lawsuit against the surety who issued a payment bond on the project two years after the subcontractor last performed any original contract work on the project.  The defendant surety moved to dismiss the action based on the one-year statute of limitation in Connecticut General Statute § 49-42.  The plaintiff countered that it complied with that deadline because it also performed ..read more
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