Construction Industry News Archives

Scheduling Experts Have A Variety Of Methods Available

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Sep 28, 2017.

Scheduling experts have a variety of methods available to them for analyzing delays, but all methods are not equally reliable or persuasive, a point well illustrated by the April, 2017 decision of the United States Court of Federal Claims in K-Con Building Systems, Inc. v. United States, 131 Fed.Cl. 275 (2017).  That decision provides a detailed analysis of the competing opinions of the parties’ scheduling experts, and the court found that the scheduling analysis method employed by the defendant was more persuasive.  The court stated: “The parties present diametrically opposed descriptions of the critical path of performance—plaintiff submits that the critical path of performance should be based on an as-planned, forward-looking schedule, and defendant contends that the critical path of performance should be based on an as-built, backward-looking schedule. The court agrees with defendant that the proper way to determine what activities were on the critical path of performance in this case is to examine what actually occurred during contract performance. There are two reasons for this conclusion. First, a critical path schedule that relies solely on the schedule set forth in the contract specifications does not account for any subsequent changes to the schedule authorized by the contracting agency…. Second, the use of a contractually based critical path schedule does not reflect that plaintiff did not actually perform in accordance with the schedule set forth in the contract specifications.”

Bad Faith

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Bonding and Surety on Sep 28, 2017.

On September 28, 2017, the Supreme Court of Pennsylvania, in Rancosky v. Washington National Insurance Company, held that in order to recover in a bad faith action against an insurer under 42 Pa.C.S. §8371, the plaintiff must “present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.” Further, the Court held that proof of an insurance company’s motive of self-interest or ill-will is not a prerequisite to prevailing in a bad faith claim under Section 8371, observing that evidence of the insurer’s knowledge or recklessness as to its lack of a reasonable basis in denying policy benefits is sufficient.  

Launch of Enforcement of the Respirable Crystalline Silica in Construction Standard, 29 CFR § 1926.1153

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Sep 25, 2017.

On September 23, 2017, OSHA will begin enforcement of the new respirable crystalline silica standard for construction (“new silica rule”). OSHA announced that during the first 30 days of enforcement of the new silica rule, it will consider good-faith efforts by employers in their attempt to comply with the new silica rule. OSHA will offer outreach and assistance to help ensure employers are fully and properly complying with the new requirements. The memorandum issued by OSHA on the subject can be found under the following link:

Pittsburgh Airport Shrinkage Spurs Substantial Construction Project

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Sep 20, 2017.

The Pittsburgh Post-Gazette reports that Pittsburgh International Airport will receive a $1.1 Billion facelift, ironically spurred by a downsizing of the airport facility. The consolidation of U.S. Airways, a major tenant at the airport, with American Airlines resulted in a substantial reduction in capacity at the airport over the last several years. A 600 person operation center at the airport was closed, as were other facilities. The plan recently unveiled is essentially a makeover for a terminal opened as a US Airways hub in 1992, but which now serves only ½ the traffic it once did. The project includes a new building for ticketing and security, a new parking garage and a streamlined boarding facility. Under the proposed modernization, the current landside building would be abandoned, the tram that hauls people from it to the X-shaped boarding facility, or airside, terminated, and the number of gates will be reduced to 51 from 75. Constructed in their place will be a $783.8 million landside building located between airside’s C and D concourses with new security and baggage facilities, a reconfigured international arrivals area, a 3,000-space parking garage, and other features designed focused on the needs of modern travelers. The Post-Gazette also reports that private developers have expressed interest in commercial development of vacant space at the airport for tenants interested in locating their businesses near the airport. The Federal Aviation Administration would likely have to approve any redevelopment of the vacant airport space. Andrew B. Cohn can be reached by email […]


On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Aug 10, 2017.

The Chicago Tribune recently reported that two European developers are planning a mixed-use development that could include up to 20,000 modular homes on the former site of a U.S. Steel plant in Chicago. A division of Irish firm WElink Group and Spain-based Barcelona Housing Systems (BHS) has entered into an agreement to purchase the 440-acre site. WElink builds energy-efficient modular housing, and BHS uses solar power and recycled materials in its homes. Closing on the property is to occur within five months. It is anticipated that the development would likely include low- and mid-rise buildings, parks and a marina. Developers are increasingly using modular and offsite construction to speed up construction and overcome skilled-labor shortage. Modular factories offer efficiencies which produce either whole rooms or room segments concurrently with site work and other site operations. This efficiency can significantly streamline the project schedule. A number of commercial developers, including Marriott, have made public commitments to use modular construction to reduce costs and achieve overall efficiency. It recently announced that it planned to incorporate modular in approximately 13% of its total North American hotel deals this year. That would translate to approximately 50 hotels that will include some element of modular building. Although most of the growth in modular in the U.S. has come from the multifamily and hospitality sector, some single-family builders are also using the method. Entekra, An Irish developer, Entekra, plans to build volume modular housing in the U.S. It claims that its model can produce the components for […]



On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Defect on Jul 26, 2017.

In a recent opinion, the Third Circuit Court of Appeals held that the automatic stay of claims against a bankrupt contractor barred the filing of an electrical supplier’s NJ construction lien against the project real estate. The decision points out how differences between state lien statutes can affect the rights of lien claimants where a bankruptcy has been filed. In In Re Linear Electric Company, Inc., a prime electrical contractor filed a bankruptcy petition.  After the petition had been filed, two electrical suppliers to the bankrupt contractor filed New Jersey Construction Liens against real estate which had been improved with the electrical material supplied by the two lien claimants.  The bankrupt contractor moved to dismiss the liens as having been filed in violation of the automatic stay of claims imposed when a bankruptcy is filed, even though the lien claims were asserted against real property owned by the project owner, not directly against the bankrupt contractor. The Court held that the liens violated the automatic stay. It reasoned that even though the liens were asserted against real estate owned by a non-bankrupt party, under the New Jersey Lien statute, the liens functioned as a claim against the accounts receivable of the bankrupt electrical contractor in that if the liens were paid, the project owner would not have to pay the bankrupt contractor.  This would be to because, under the New Jersey Lien statute, construction liens are assessable only up to the amount of a “Lien Fund”, consisting of all unpaid […]

2017 AIA Documents

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on May 1, 2017.

The 2017 AIA Documents were released today.  Information about the new forms, and free downloadable comparisons of the 2017 and 2007 version’s text, are available here:  

Design Professionals’ Contracts

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Apr 14, 2017.

Design professionals’ contracts often contain indemnity clauses, and such clauses can impose liability not covered by the design professional’s insurance.  This article provides useful advise about the risks of such clauses:

Philadelphia Constructed the Most 1 Million-Sq.-Ft. Facilities in the Country Between 2010 and 2016

On behalf of Kaplin Stewart Meloff Reiter & Stein, P.C. posted in Construction Industry News on Feb 7, 2017. Philadelphia – February 6, 2017 – The rapid growth of e-commerce has created a big trend in U.S. industrial markets: a proliferation of warehouses spanning 1 million sq. ft. or larger. The massive warehouses and distribution centers have sprouted from Southern California to Philadelphia, clustering around metro areas that provide the mix of road, rail and sea access that e-commerce users covet, according to a new report from CBRE Group, Inc. All told, 117 such facilities were built across the U.S. from 2010 to 2016 for a total of 141.2 million sq. ft., which shows an increase from the 99 facilities built between 2003 and 2009, according to CBRE. The markets in which the most big-box construction occurred in the 2010-2016 timeframe are led by Philadelphia, California’s Inland Empire and Dallas/Fort Worth. Top Markets For 1 Million-Sq.-Ft. Warehouses Built 2010-2016:   Rank Market Number of Buildings Total Sq. Ft. (millions) 1 Philadelphia 16 19.7 2 Inland Empire 13 15.4 3 Dallas/Fort Worth 13 14.7 4 Atlanta 12 13.8 5 Chicago 9 11.7 6 Memphis 3 4.1 7 Columbus 3 3.4 8 Cincinnati 2 3.3 9 Indianapolis 2 2.2 10 Phoenix 1 1.2 Looking ahead, the busiest markets for on-going construction of 1 million-sq.-ft. warehouses are led by the Inland Empire, Chicago, Philadelphia and Atlanta. Across the 10 busiest U.S. markets for this type of construction, 29 such facilities are underway. “The Eastern Pennsylvania market is poised to see continued demand for large 1 million-sq.-ft. warehouses along the I78/I81 corridor,” […]

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