New Virginia Law Prohibits “Pay-When-Paid” and “Pay-If-Paid” Provisions in Construction Contracts
Construction contracts routinely set payment terms as “pay-when-paid” or “pay-if-paid.” These terms protect the prime contractor from bearing all the risk of nonpayment by the owner. In Virginia, however, that will not be true for much longer. Last month, Virginia lawmakers passed Senate Bill 550, which makes “pay-when-paid” and “pay-if-paid” clauses unenforceable in most circumstances. Specifically, the new law applies to both public construction contracts and certain private construction contracts that involve at least one general contractor and one subcontractor. . . . Read More
New Infrastructure Bill and Its Impact on Disadvantaged Business Enterprises in the Construction Industry
The Infrastructure Investment and Jobs Act ( the Bill )—which makes a portion of its $1.2 trillion available for surface transportation projects—currently awaits signature from President Biden and will have significant impacts for construction contractors participating in the Department of Transportation’s (DOT) Disadvantaged Business Enterprises (DBE) Program. The Bill addresses aid to federal highways, transit, highway safety, motor carrier, research, hazardous materials, and rail programs. DOT’s DBE Program permits states to set up DBE programs, in compliance with DOT standards, that promote . . . Read More
COVID-Related Construction Claims: 4 Key Strategies for Recovery
The construction industry has seen increased costs and contract performance concerns resulting from the impacts of COVID-19. For construction firms contracting with the government, it is critical to understand how to position the firm to recover increased costs. Following are four key recovery strategies to better prepare you before filing a claim or request for equitable adjustment (REA). 1. Understand How Contract Provisions Help Carefully examine the contract to identify provisions that may excuse delays or provide for recovery in . . . Read More
Is Your Arbitration Clause Leaving You Exposed?: 3 Ways to Protect Yourself
Arbitration clauses are included in many commercial contracts, particularly in government subcontracts. We often see arbitration clauses as tools to limit the parties’ exposure to protracted litigation if a dispute arises under the contract. Maryland, among many other state and federal courts, has an extremely strong public policy of favoring the enforcement of arbitration agreements. The Maryland Court of Appeals has explained that the “public policy favoring such agreements is understandable, as arbitration agreements are generally a less expensive and . . . Read More
BLOG: $4.5 Million False Claims Act Settlement Underscores DOJ’s Focus on Fraud in Small Business Programs
During the webinar on “ The False Claims Act: 2019 Takeaways and 2020 Trends ” earlier this year, Matt Feinberg and Jackie Unger noted that the SBA’s small business programs are fertile ground for False Claims Act (FCA) enforcement and predicted increased enforcement in 2020 and beyond. A recent settlement has shown this to be true and illustrates that the risk of FCA liability can extend to affiliates and business partners of purported small businesses that contract with the federal government. On May 4, 2020, the DOJ issued a press release stating that Northland Associates, . . . Read More
BLOG: 5 Steps for Preserving and Preparing Your Miller Act Claim
As the United States economy continues to grapple with the unprecedented impact of the coronavirus pandemic, many contractors are concerned about making and receiving payment for work. The Miller Act provides the process for subcontractors to ensure they are paid for their work on federal construction projects, but they must be familiar with its requirements and deadlines to seek payment. This guide outlines five steps subcontractors and material suppliers should take to ensure they preserve their right to recover payment . . . Read More
BLOG: HHS Provides Guidance on the CARES Act’s Provider Relief Fund
Under the CARES Act, Congress set aside $100 billion for the Public Health and Social Services Emergency Fund (the Provider Relief Fund) to reimburse healthcare providers for healthcare-related expenses or lost revenues attributable to the Coronavirus (COVID-19); the Paycheck Protection Program and Health Care Enhancement Act, which President Trump signed into law, will provide an additional $75 billion to the Provider Relief Fund. Eligible healthcare providers that provide diagnoses, testing, or care for individuals with possible or actual cases of . . . Read More
BLOG: Employers: A Briefing on Federal Agencies’ Responses to COVID-19
Federal, state, and local governments are working around the clock to implement various measures in the midst of the COVID-19 crisis. Additionally, a number of federal agencies and departments are also taking action in response to the outbreak. For employers across the nation, it is undeniably an unstable and unclear time, with no concrete signs of when there will be a sense of normalcy again. However, in the meantime, we compiled a list of some of the agencies with brief . . . Read More
BLOG: 4 Things to Know About DOJ’s Procurement Collusion Strike Force
The U.S. Department of Justice (DOJ) has been increasing scrutiny of anticompetitive conduct in public procurements over the past several years, and this trend is certain to continue in light of DOJ’s formation of a new Procurement Collusion Strike Force (PCSF), announced in November 2019. What should government contractors know about the PCSF? Here are four key takeaways regarding the PCSF’s activities to help government contractors understand and prepare for increased enforcement of antitrust laws. The PCSF is an interagency partnership across the . . . Read More
BLOG: Performance Anxiety: Five Questions from Government Contractors on Past Performance
A government contractor’s past performance can spell the difference between proposal rejection and contract award, and agencies are given broad discretion in how they evaluate past performance. It is critical that companies working with the federal government understand not only what steps they should take to utilize and cultivate positive past performance, but also the steps they should take to defend it. We recently gave a webinar on these topics and received several follow-up questions. Below we address the top . . . Read More