November 2016 Public Bid Awards

bid-resultsThis post is the first installment of new a monthly series highlighting notable awarded bids and contracts for Arizona public construction projects.  I know that it is helpful for my practice to keep track of new projects around the state.  So, without any further adieu, here is a list of some of the public projects awarded in or about November, 2016:

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Hatch Development, LLC v. Sol’s Construction Co., Inc.: A Primer on Common Law Indemnification

common_law-indemnificationIndemnification provisions are mainstays of most construction contracts. As a result, all contractors should be aware that the agreements they enter likely impose certain indemnification obligations upon them.  But even the most seasoned contractors may not realize that construction contracts are not always the final word on indemnity.  Rather, certain indemnification obligations can arise purely as a matter of law, even if the parties’ contract is silent on the issue.  This is what is referred to as “common law indemnification,” and it was the subject of the Arizona Court of Appeals’ recent decision in Hatch Development, LLC, et al. v. Sol’s Construction Co., Inc., 240 Ariz. 171 (App. 2016). read more

Drone On: FAA Adopts New Regulations Governing the Use of Drones in Construction

img_0510Unmanned aircraft systems (“UAS”), which are commonly referred to as drones, are becoming increasingly less expensive and easier to operate.  As a result, these aircraft are being used more frequently for both recreational and business purposes.  The construction industry is at the forefront of commercial drone use.  In fact, just last week, Fortune published an article entitled, “The Construction Industry is in Love with Drones.”

Drones are being used by contractors for a variety of purposes, which mostly center around improving efficiency.  These uses include: (1) monitoring progress; (2) surveying sites; (3) inspecting structures; and (4) providing aerial overviews of completed projects.  The speed, frequency, and economical manner in which drones can furnish contractors with an accurate understanding of job site progress is, by itself, enough to ensure that drones are only going to become more prevalent on construction projects. read more

Arizona’s New Independent Contracting Law: A Potential Trap for General Contractors and Subcontractors

Beginning August 6, 2016, Arizona law on independent contractor employment relationships changed for most industries when A.R.S. § 23-1601 went into effect.   Section 23-1601 (which is the byproduct of House Bill  2114) is a new statute that allows certain businesses and workers to create a rebuttable presumption of a lawful independent contractor relationship by:  (1) having the worker execute a statutorily prescribed Declaration of Independent Business Status; and (2) the business acting in a manner substantially consistent with the Declaration.  But general contractors and subcontractors need to be aware that, for all intents and purposes, § 23-1601 does not apply to their businesses.  This important limitation has gone unmentioned in the multiple publications/articles I have read on this new law, which is why I am writing this post. read more

Back to the Future: Little Miller Act Twenty-Day Notices May Once Again Be Sent By First Class Mail With A Certificate of Mailing

capital_roofIn May 2015, I authored a post addressing the Arizona Court of Appeals’ then-recent decision in Cemex Construction Materials South, LLC v. Falcone Bros., Inc., 237 Ariz. 236 (App. 2015).  My post can be found here.   The Cemex decision will, however, cease being good law next Saturday.  The case was legislatively overruled by House Bill 2268, which was signed into law by Governor Ducey on May 12, 2016 and will become effective on August 6, 2016.

As a reminder, Cemex upended the longstanding construction industry practice of mailing preliminary twenty-day notices on Little Miller Act projects via first class mail with a certificate of mailing.   This had been done as a cost saving measure because: (1) Arizona’s mechanic’s lien statute requiring twenty-day notices—A.R.S. § 33-992.01—expressly provides in Subsection (F) that the notices may be provided by “first class mail sent with a certificate of mailing;” and (2)  the Little  Miller Act section requiring 20-day notices in certain instances—A.R.S. § 34-223(A)—incorporated  by reference a significant portion of § 33-992.01.  Nevertheless, Cemex held that this industry practice did not comply with § 34-223(A).  Specifically, the Court found that the mailing provisions of § 33-992.01(F) were excluded from § 34-223(A), such that Little Miller Act 20-day notices were required to “to be served by registered or certified mail,” like Little Miller Act ninety-day post-completion notices. read more