Forced to Warp Speed: The Anatomy of a Constructive Acceleration Claim.

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In the construction world, the term “acceleration” refers to speeding up the pace of work on a project.  Accelerated performance often results in increased costs for those contractors whose work is affected.  These increased costs, which can be substantial, often include overtime payments, hiring costs and salaries of additional workers, and extra material costs due to the shortened schedule.

Generally, a project (or portions of a project) can be accelerated in three ways:  (1) voluntarily; (2) at the direction of another party; or (3) constructively.  Voluntary acceleration occurs where the contractor unilaterally decides to quicken its pace.  Directed acceleration, on the other hand, occurs when the contractor is ordered to expedite performance by either the owner or the general contractor.  Not surprisingly, it is uncommon for disputes over acceleration costs to arise in either of these two contexts.  If the acceleration is voluntary, the contractor typically bears the cost.  If the acceleration is directed, the party directing the acceleration usually bears the costs. read more

Construction in the Age of COVID-19: Contract Provisions that Merit Review in these Uncertain Times.

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The nature and extent of COVID-19’s impacts  on Arizona’s construction industry are currently unknown.  It is, however, certain that there will be impacts.  At the very least, many projects may be delayed.  Thus, in order to prepare for what lies ahead, delay-related provisions in existing construction contracts and contemplated future contracts merit review and consideration. These include, but are not limited to, clauses covering the following:

Contract Time

The starting point for any delay claim is the contract provision specifying the performance period for the subject work.  Typically, construction contracts will establish the performance period by: (1) specifying commencement and completion dates; or (2) setting forth a number of days within which the work must be completed after a notice to proceed is given. read more

Just. Do. It.: Arizona Court of Appeals Holds that Contractor Pursuing a Bid Protest Must Act to Preserve the Status Quo before Contract Performance Begins.

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Way back in the sixteenth century, Miguel de Cervantes observed that “[d]elay always breeds danger.” In Southwest Fabrication, LLC v. City of Phoenix, the Arizona Court of Appeals recently confirmed that this principle still very much applies to contractors protesting public contract awards.   In particular, the Court held that parties litigating the propriety of an award “must act to preserve the status quo before contract performance begins to avoid [the equitable defense of] laches.”  The protesting contractor in Southwest Fabrication failed to preserve the status quo and, as a result, its bid protest failed.  read more

The Next Chapter: Holden Willits, PLC

I am excited to announce that I have joined a new law firm – Holden Willits, PLC. Holden Willits is ranked by US News & World Report as a Tier 1 law firm in Phoenix for construction law and construction litigation. And as you may be able to tell from this blog, construction law and construction litigation are the main focus of my practice. For this reason and others, I am happy that Holden Willits is the next chapter in my legal career.

While this is a big change for me professionally, it will not change this blog. As new developments relating to Arizona construction law arise, I will continue to write about them. Thank you and stay tuned! read more

“Knowing is Half the Battle” – What to Expect During an OSHA Inspection

Via the United States Department of Labor

G.I. Joe: A Real American Hero was one of my favorite television shows as a kid. Each episode of the cartoon concluded with a character stating that, “Knowing is half the battle.” To this day, I think that is a solid maxim on a number of levels. So, in the spirit of G.I. Joe, I have linked to the video above concerning the OSHA inspection process. The video, which was posted to YouTube by the U.S. Department of Labor on October 17, 2019, details the steps of, and procedures for, OSHA inspections. read more