It is not uncommon, in the litigation of a federal construction claim, for the Government to produce gigabytes of electronic data, amounting to thousands and thousands of documents, in response to a motion for the production of documents.  Frequently, these “electronic” documents are simply the scanned versions of paper files in the Government’s offices.  In the scanning process, extensive duplication occurs and documents that are clearly separate in paper file folders are scanned together in a manner that often combines multiple documents.  Once combining occurs, it is very difficult for the recipient of the electronic information to tell where one document ends and the next one begins.  Documents and their attachments become confused, are re-arranged, and difficult to follow.  Continue Reading E-Discovery- Bring Back the Boxes

On December 3, Jennifer Horn and Maria Panichelli presented the second webinar in their core construction curriculum series for Women Impacting Public Policy and Give Me 5%. The presentation, entitled “Best Practices in Construction,” covered suggested best practices for before, during, and after conclusion of a construction project, in the context of both state and federal jobs. The presentation provides tips on contracting, documentation, compliance, and claims prevention strategies. Start implementing business practices that make the difference between a profitable construction project and one that exposes your company to financial risk now! Check out: “Give Me 5: Best Practices in Construction,” here.

Jennifer M. Horn is a Partner at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.

Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

Please join Jennifer M. Horn and Maria L. Panichelli as they begin their “Core Construction Curriculum” series for Women Impacting Public Policy’s Give Me 5% program.

WIPP is a national nonpartisan public policy organization advocating on behalf of its coalition of 4.7 million businesswomen including 75 business organizations. WIPP identifies important trends and opportunities and provides a collaborative model for the public and private sectors to increase the economic power of women-owned businesses.  Give Me 5%, named after the 5% federal contracting goal for women-owned businesses, was created to educate women business owners on how to apply for and secure federal procurement opportunities. GiveMe5 is working to improve the WOSB Procurement Program to increase access to contracts for women entrepreneurs.

Give me 5

Jennifer and Maria will begin the Core Construction Curriculum series with two webinars.  On November 12th at 2:00pm they will be presenting Give Me 5: Construction Unit FAR 101 – Part 1, The Fundamentals of the Federal Acquisition Regulations and Federal Procurement: The Bidding Process.  The Federal Acquisition Regulations or “FAR” can be confusing whether you are new to federal contracting or have been contracting with the government for years. This webinar will focus on improving participants’ understanding of FAR and its application in the construction context. The presentation will cover the bidding process for both sealed bidding and negotiated procurement. You can find a description of the presentation and registration information, here.

On December 3rd at 2:00pm Jennifer and Maria will be presenting Best Practices in Federal Construction. Whether you a contractor working on federal, state or private projects, certain construction practices should be followed to ensure that you and your company are protected on the project. Observing best business practices can mean the difference between a profitable construction project and one that exposes your company to financial risk. This Webinar will focus on best construction practices before, during and at the conclusion of a construction project.  Read more and register, here.

We will keep you posted on additional webinar topics and times. If you have suggested topics, feel free to contact Jennifer or Maria.

Jennifer M. Horn is a Partner at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.

Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

Thanks to a recent decision by the Court of Appeals for the Federal Circuit, in Metcalf vs. U.S., the protection afforded by the Differing Site Conditions clause has been reaffirmed. Although the Court primarily addressed the requirement that federal agencies must demonstrate good faith and fair dealing in the administration of federal contracts, the Court also made an important ruling on the meaning and purpose of the Differing Site Conditions clause. Reversing a decision by the U.S. Court of Federal Claims that had been vigorously opposed by federal construction contractors and industry groups, the Court of Appeals ruled that:

“Requirements for pre-bid inspection by the contractor have been interpreted cautiously regarding conditions that are hard to identify accurately before work begins, so that the duty to make an inspection of the site does not negate the changed conditions clause by putting the contractor at peril to discover hidden subsurface conditions or those beyond the limits of an inspection appropriate to the time available.”

It is not uncommon for federal agencies to attempt to write the Differing Site Conditions clause out of the contract by discouraging contractors from relying upon representations of subsurface conditions in the solicitation. We have seen solicitations that tell contractors that borings are not to be interpreted as representative of subsurface materials beyond the individual bore holes; that bidders should make their own determinations of subsurface conditions; or, that information in the solicitation is for “informational purposes only.” What these agencies overlook is that the purpose of the clause is to allow all contractors to compete on the same basis, and without the need to put contingencies in their bids.

Fortunately the Court recognized the importance of maintaining the protection afforded by the Differing Site Conditions Clause, stating that “[i]t exists precisely in order to take at least some of the gamble on subsurface conditions out of bidding.” The Court further stated that “instead of requiring high prices that must insure against the risks inherent in unavoidably limited pre-bid knowledge, the provision allows the parties to deal with actual subsurface conditions once, when work begins, more accurate information about them can reasonably be uncovered.” This is great news for federal construction contractors who, prior to this decision, may have been misled into believing that the risk of differing site conditions had shifted entirely to them.

Michael H. Payne is the Chairman of the firm’s Federal Practice Group and, together with other experienced members of the group, frequently advises contractors on federal contracting matters including bid protests, claims and appeals, procurement issues, small business issues, and dispute resolution.

Please join our Federal Contracting Practice Group for a Networking Cocktail Reception preceded by a precise presentation on Avoiding the Pitfalls in Federal Construction Contracting.

This networking event will facilitate interaction between large and small businesses that are looking to understand how to win federal construction contracts. The presentation, led by Federal Contracting Chair, Michael Payne, will provide an overview of the following topics:

• Top 10 list of pitfalls to avoid
• Tips on how to deal with the hazards
• Understanding how to protect your rights

The Federal construction market is accountable for over $100 billion worth of spending annually. If you are interested in learning more about federal contracting opportunities, this networking event is a great place to connect with other companies and learn inside tips from our Federal Contracting Partners, who boast years of experience working with Federal agencies.


November 8, 2012

4:00pm-4:30pm Registration
4:30pm-5:30pm Seminar
5:30pm-7:30pm Cocktail Reception

The Union League of Philadelphia
140 South Broad Street
Philadelphia, PA 19102

$50 per person

Please register early as space is limited.

To register, please use this link. For questions, contact Rachel McNally at (215) 564-1700.

On February 6, 2009, President Obama issued an Executive Order encouraging agencies to use Project Labor Agreements ("PLAs") in federal construction projects with a total cost to the Government of $25 million or more.  The purpose of the Order is to avoid some of the problems which typically arise during the completion of such large projects causing various delays in their timely completion. 

"Project Labor Agreements" are defined as, "pre-hire collective bargaining agreement with one or more labor organizations that establishes the terms and conditions of employment for a specific construction project and is an agreement described in 29 U.S.C. 158(f)."  Title 29 governs the relationship between management and labor as well as national labor relations and section 158 governs unfair labor practices.  While the Order is effective immediately, the FAR Council has been given 120 days-until June 6, 2009-to take "whatever action is required" to implement this order.  President Obama also instructs the Director of the Office of Management and Budget, in consultation with the Secretary of Labor and other appropriate officials, to evaluate whether broader use of such PLAs would help promote the economical, efficient and timely completion of such projects. 

This Order repeals George W. Bush’s Executive Order 13202 which forbade federal agencies and other recipients of federal funding to require contractors to sign union-only PLAs as a condition of performing work on federal projects.  Interestingly enough, the history behind the most recent Order clearly demonstrates the divide between the Democratic and Republican Parties’ divergent view of the role of unions.  Bush’s Order repealed an Order issued by former President Clinton, the purpose of which was to overrule an Order issued by his predecessor George H.W. Bush. 

Many in the construction industry are concerned about this order and feel that the implementation will negatively impact the 84% of U.S. construction workers who are not union members.  However, the Order only encourages PLAs for large-scale construction projects, it does not mandate them. "Executive agencies may, on a project-by-project basis, require the use of a project labor agreement by a contractor where use of such an agreement will…advance the Federal Government’s interest in achieving economy and efficiency in Federal procurement…"  Under the terms of the Order, the government cannot compel a contractor to enter into these agreements, and cannot exclude from competition those contractors that choose not to use them.  Additionally, contractors are not required to obtain their labor from any particular labor organization.  We will just have to wait and see how the FAR is updated before we can determine the ramifications for federal construction contractors.