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Texas Construction Law Blog

For Subcontractors & Suppliers

The Storm After the Storm

Posted in Collection, Construction Contracts

Co-authors: Russell Jumper and Tim Fandrey.
Published in Cleaning & Restoration Magazine

Just as the Texas coast assessed the magnitude of Hurricane Harvey’s damage, Hurricane Irma was taking shape in the Atlantic. Fewer than two weeks later, Irma would crash into the Florida Keys. Estimates put Harvey and Irma’s combined impact in excess of $275 billion. No small part of that amount will be required for cleaning and restoration services. Before Irma made landfall, even as Harvey hovered over the Houston area, restoration professionals from around the country arrived along the Texas coast to kick-start Texas’ recovery. For the people who lost their homes, possessions, and even family or friends, the focus turned to recovery. For some of the restoration professionals who helped, and continue to help, a second storm is forming: owner and insurer payment disputes. Like boarding up windows and setting out sandbags, there are some steps cleaning and restoration professionals can take in an effort to minimize the damage from the approaching payment dispute storm. Continue Reading

Protecting Yourself in a Volatile Labor Market

Posted in Labor/Workforce

 

Co-authors: JP Vogel and Tim Fandrey.
Published in Build Houston Magazine.

Texas is a hot-bed for construction. In 2016, according to the Virtual Builders Exchange, Texas was second only to New York in construction expenditures, spending $44.4 billion. And there is no sign that the proliferation of construction is slowing down.  New housing starts are up in Texas as a result of an influx of new employees moving to the area. The U.S. Census Bureau reported that Texas has experienced the largest population growth of any state between 2010 and 2016. This, in turn, increases demand on civil infrastructure thus requiring more construction. This explosion of growth in construction spending has taken place without consideration given to the rebuilding efforts arising from the aftermath of Hurricane Harvey. Continue Reading

A Myth About Delay – Revisited

Posted in Construction Contracts, Delay Damages

Construction lawyers routinely deal with delay claims. I have presented or defended more of them than I can remember.  That is why I was curious when, earlier this year, I received a series of email invitations to presentations on the use of “concurrent delay” as a defense to contractor or owner claims for delay damages on construction projects.  I’ve written about the subject in the past and wondered what, if anything, had changed.

Continue Reading

Softening a Hurricane’s Blow: Force Majeure and Builder’s Risk

Posted in Construction Contracts

 

Co-authors: Russell Jumper and Tim Fandrey

Hurricane Harvey caused severe destruction in Texas with its significant winds and historic rainfall. But Harvey may also prove to be a costly lesson for many project owners and contractors. As Texas begins to focus on recovery in the coming weeks, Harvey will further serve as a reminder to all construction industry stakeholders that hurricanes, and other “acts of God”, are risks that must be effectively managed during the pre-construction and construction phases of every project. While it is difficult to effectively avoid the risks attendant to a highly-destructive, low probability event that occurs on short notice, owners and contractors have two primary tools at their disposal to mitigate the effects of such an event: (i) contractual force majeure provisions; and (ii) builder’s risk insurance. Continue Reading

“Buy American” Law Changes How Texans Buy Iron and Steel

Posted in Construction Legislation

Co-authors: Jeff Leach, Tim Fandrey.
Published in Pipeline Magazine and Build Houston Magazine.

As a result of newly enacted Texas Senate Bill 1289, buying American iron and steel is now a requirement on certain public infrastructure projects in Texas. Promoted by President Trump, passed by the Texas Legislature in May and signed in to law this summer by Governor Greg Abbott, the new law, effective Sept. 1, 2017, requires that iron and steel be purchased from an American supplier unless the American supplier price is more than 20 percent higher than the price of the cheaper foreign importer. Foreign iron and steel may also be used if American suppliers are not prepared to supply a project, or if there is a compelling state interest that warrants the use of a foreign manufacturer’s steel. Continue Reading

ICE is coming for Undocumented Workers – How to Prevent Corporate Frostbite

Posted in Uncategorized

Co-author: Michael Kelsheimer

Whatever your political views, undocumented workers and the businesses that knowingly or unknowingly employ them are coming under the microscope.

If you compile recent headlines, you’ll know the President has implemented two immigration bans, is challenging so-called “Sanctuary Cities” that do not help Federal immigration enforcement, has instructed government agencies to become more aggressive in enforcement of immigration laws, and is already reviewing proposals to strengthen the border wall.  On top of this, the E-Verify program for verifying worker status is likely to become mandatory.

Further, employers who try to do it right by using the H-2B program have been dealt a stiff blow.  The Returning Worker Program, which dramatically extended the stingy 66,000 nationwide cap on H-2B non-immigrant workers, has not been renewed.  The H-2B cap has already been reached for 2017, so the hope for help there is gone. Continue Reading

How to Circumvent “No Damages for Delay” Clauses

Posted in Collection, Construction Contracts, Delay Damages, Uncategorized

Most commercial construction contracts contain a “No Damage For Delay” Clause and most contractors mistakenly believe they are Kings X for any potential claims related to delay caused by an owner or original contractor. While nearly every commercial construction contract contains the same or similar provisions, it is important to keep in mind they all have different authors, which means typically no two clauses are ever drafted the same.

This is particularly important when it comes to “No Damage For Delay” Clauses as the actual breadth of the language and scope will set the tone for their enforcement or circumvention. There are several common law exceptions to “No Damage for Delay” clauses recognized in Texas, which may be neutralized or ignored by the particular language of a “No Damage for Delay” Clause. Continue Reading

Implied Warranties: Part One (Goods)

Posted in Construction Contracts

Texas law imposes certain implied warranties on the sale of goods, regardless of whether the warranties are mentioned in the contract.  In particular, Texas law creates the warranty of “merchantability” and the warranty that the goods are “fit for a particular purpose.” Continue Reading