Blogs

Subcontractors on federal projects must often contend with a variety of standard clauses that are “flowed down” from the prime contract to the subcontract. While the subcontractor may be able to reject certain of these clauses, those that remain can impose significant obligations on the subcontractor, writes Samuel Jack.

Construction lien waivers are an indispensable part of the traditional construction payment process. However, depending on the circumstances, the risks associated with conditional lien waivers may outweigh any potential benefit, writes Steven Slawinski.

With the 2023-24 Wisconsin legislative session concluded, several bills were signed into law that affect the construction industry. John Schulze discusses the new laws and the areas they impact.

Contractors typically expect any disputes will be heard locally and governed by local law. James Dash discusses why you should warn your client that this might not always be true.

Ensuring that downstream contractors and suppliers have adequate insurance coverage is a crucial aspect of risk management in the construction industry. Brendan Bush outlines steps construction companies should take to ensure proper insurance coverage fortheir downstream partners.

Rock, sand, and gravel are key to all types of construction, but quite often communities resist siting and permitting new gravel pits. David McCormack discusses how misinformation can lead to misconceptions about the availability of sand and gravel forfor the construction industry.

When construction work doesn’t conform to the plans and specifications, what are the parties’ legal rights? Kevin Long discusses the issues that come up when things don’t go according to plan in construction projects.

While Wisconsin statues prohibit certain types of clauses within construction contracts, they don’t specifically limit or prohibit indemnification clauses. Tyler Manley discusses the limits on indemnification clauses and the clauses that are prohibited inconstruction contracts in Wisconsin.

A Wisconsin Supreme Court decision recently diminished a statutory mandate involving partial construction lien waivers. James Thiel discusses the decision and the lessons learned from the majority and dissent opinions.

While much of the business world operates seamlessly across state borders, there are perils for contractors with projects in other states if they do not properly account for legal, statutory, and contract differences. Eric Meier discusses some of the key contract and legal considerations for construction companies moving into different markets.

In February 2022, President Biden issued an Executive Order requiring all contractors and subcontractors enter into project labor agreements for all large-scale federal construction projects. Brian Zimmerman discusses the Executive Order’s requirements,implementation, and industry objections.

Given the current strong demand for new condominiums, attorneys for contractors and suppliers should be aware that condominium liens are subject to Wis. Stat. section 703.22. Brian R. Smigelski highlights several key provisions in this statute toconsider in protecting your client’s lien rights.

Public construction projects require considerations not encountered on private projects, including when handling disputes among the parties. Kevin Long outlines several key issues in handling a construction dispute that involves a public entity.

Wisconsin construction may soon need to comply with two different federal regulations aimed at combating COVID-19. Patrick Whiting summarizes the two new sets of rules affecting contractors with 100 or more employees and contractors entering federal contracts.

Until the pandemic’s effects are greatly alleviated, construction supply chains will likely remain ambivalent and unpredictable. Saul Glazer discusses what owners, contractors, and suppliers can do to address the pandemic’s impact on supply chains.

The ultimate hammer in the contractor’s bucket is to stop work. For the owner, it is to bar a contractor from a job. But there are significant potential downsides to taking such actions. Jim Dash identifies the risks of terminating a contract from either side.

Drones can be useful tools in construction. In this article, John Schulze outlines the laws that govern drone flying and offers advice for their use in construction.

Recent surges in material prices have caused many construction industry participants to question their rights and remedies under their contracts as well as change their future contracts to address substantial price increases. Brian Zimmerman discusses the recent price increases and the contract clauses implicated thereby.

Recent surges in material prices have caused many construction industry participants to question their rights and remedies under their contracts as well as change their future contracts to address substantial price increases. Brian Zimmerman discusses the recent price increases and the contract clauses implicated thereby.

What’s the best method to calculate an equitable adjustment when a contractor encounters a differing site condition? Brian R. Smigelski outlines the hierarchy of methodologies utilized in Wisconsin.

A recent ruling provides a hard lesson for contractors about partial lien waivers. James Thiel discusses the case and the ruling, and the lesson learned.

The City of Madison’s bird-safe glass ordinance may fly in the face of the state of Wisconsin’s Uniform Commercial Building Code (Uniform Code). John Schulze discusses the ordinance and its challengers.

Wisconsin’s energy market is shifting toward renewable energy – are renewable energy third-party financing arrangements the new third rail? Nathan Jurowski discusses the legislative and regulatory changes that could stimulate private investment in Wisconsin’s commercial and residential renewable energy and provide opportunities for local contractors.

Residential construction contracts pose unique challenges for contract drafters in Wisconsin. Andrea Murdock offers advice on what to include in your residential construction contracts to avoid disputes and unnecessary costs.

Construction attorneys need to be familiar with intellectual property principles and copyright matters associated with their clients’ businesses. In part 2 of this two-part series, Bryan Kroes discusses additional practical copyright considerations, including trademarks and patents.

Construction attorneys should be familiar with intellectual property principles and copyright matters associated with their clients’ businesses. In part 1 of this two-part series, Bryan Kroes provides an introduction to copyright and how it intersects with construction projects.

Most commercial contracts will contain an indemnity clause. But how are they being used? Turns out, you can use them not just for protection. Matthew McClean discusses the various uses of the clause – and case law surrounding its use.

A recent Court of Appeals decision confirms the high standard for reversing an arbitration decision. Kevin Long discusses the decision’s takeaway – it is important to provide an arbitrator the opportunity to cure.

The risks presented by unknown site conditions are difficult to identify and evaluate, and the costs to address them can be very substantial. Saul Glazer discusses the necessity of using DSC – differing site conditions – clauses in construction contracts.

A recent Wisconsin Court of Appeals decision reminds construction attorneys that clients working for municipal entities can have a layer of legal protection based on municipal immunity. Patrick Whiting discusses the details and implications of the decision.

A recent Wisconsin Supreme Court decision provides some clarity for Wis. Stat. section 895.447, but raises further questions on the enforceability of other common risk transfer and limitation clauses in construction contracts. Scott J. Thomsen talks aboutlessons to be learned from the decision and its impact on construction contracts.

With the ongoing economic impact of the COVID-19 pandemic, construction lien rights have become more vital than ever to businesses in the construction industry. Steven Slawinski provides a refresher course on the basics of construction liens on privately owned construction projects in Wisconsin.

What happens when a subcontractor suffers an economic loss due to another subcontractor? Roy E. Wagner and Lauren Triebenbach discuss a recent court of appeals decision that says the economic loss doctrine bars negligence claims for solely economic lossessustained by one subcontractor as a result of another.

Carefully crafted, an integration clause with non-reliance and tort disclaimer language may avoid common law and statutory misrepresentation claims. Scott J. Thomsen discusses a recent Wisconsin Supreme Court decision and highlights how current standard form construction contract language may not sufficiently protect the contracting parties.

To weather the indefinite storm of COVID-19, commercial construction contractors should consider internal and external preparedness best practices. Nathan Jurowski examines best practices for contractors to protect their employees, prepare for business interruption, and negotiate with clients in the face of supply chain disruption, suspension of work, and excusable delays.

Now is the time to plan – and act – for what will come at the end of the coronavirus outbreak. With project delays inevitable in the era of COVID-19, James Dash offers advice on what you can do now to avoid future lawsuits and to advance your business interests.

With the recent move of 3D construction printing out of the research labs and onto construction jobsites, there is a disconnect between the available technology and construction law. Bryan Kroes discusses the future of 3D printing and construction law.

Environmental issues that arise during construction projects can bring your clients projects to a halt. Sean Frye give tips on preparing and responding when the unexpected arises so your clients can keep their projects on track. “Knowing how to respond and being proactive saves the client time and money and keeps the project on track,” he writes.

Gov. Tony Evers introduced a state budget that included significant public construction investment and the rollback of labor reforms. John Schulze discusses the proposed budget and its path through the Wisconsin Legislature.

Improperly classifying workers exposes an employer to significant fines and penalties. Andrea Murdock discusses various tests employers should use in determining whether to treat workers as independent contractors or employees.

Most public construction contracts must be awarded to the lowest responsible bidder. However, the word “responsible” is often overlooked, and state agencies and local governments often feel compelled to award the work to the lowest bidder even if the contractor may be problematic. Cynthia Buchko discusses the “responsible bidder” legal standard in public contracting.

There is a common belief that subcontractors and material suppliers do not have any lien rights arising from a public improvement project. But this is not accurate, says Brian Smigelski.

Assistive technology is becoming more prevalent and accepted in the workplace. Eric Meier discusses some of the latest technology and legal considerations surrounding the employee data that is captured by wearable technology.

While the personal property tax on machinery, tools, and patterns in Wisconsin was eliminated on Jan. 1, 2018, confusion still exists about what is or is not exempt. John Schulze discusses this new area of tax exemption and what it applies to, and gives tips on what to do if your client believes their property is taxed unfairly.

What should you say when your client asks, “Can I recover attorney fees?” While rare, there are several circumstances where clients can recover fees in construction disputes. Lauren Triebenbach and Mark Schmidt outline different grounds for attorney fee recovery.

Tenant buildouts can place fee owners and contractors at risk during construction projects. Saul Glazer discusses options for both contractors and fee owners to protect their respective interests.

With the advent of new construction delivery methods, the limits of protections from the Spearin Doctrine have been tested. Patrick Whiting discusses the intersection of the Spearin Doctrine and these new delivery methods.

When drafting construction contracts, it's good to pay attention to how disputes may be resolved. But how can you possibly know at the time of contracting which dispute resolution method is best? James Dash discusses what to consider when writing binding dispute resolution clauses.

In American Family v. Cintas, the Wisconsin Supreme Court enforced an indemnification provision under Ohio law. Kevin Long and Lars Gulbrandsen discuss the decision and its impact.

Wisconsin Act 235 made comprehensive changes to the Wisconsin Rules of Civil Procedure. Lauren Triebenbach discusses these changes, which apply to causes of action filed on or after July 1, 2018.

Private Public Partnerships (P3) involves alternative procurement methodologies, public/private financing mechanisms, enabling legislation, and contracts for the all of the above, as well as ongoing maintenance and operations of the facilities involved. Carrie Cox discusses the continuing emergence of P3 and the challenges inherent in P3 work.

The Wisconsin Supreme Court seems to have settled for now the question of whether attorney fees are recoverable in a statutory theft by contractor case. Mark Schmidt discusses the court’s decision.

While a recent Wisconsin Court of Appeals decision may appear to weaken the statute of repose governing construction projects, attorneys should thoroughly analyze all the issues before deciding if a construction claim is timely. Brian Smigelski discusses the effect of the decision in Wosinski v. Advanced Cast Stone Co.

When must a dispute be arbitrated, and who decides? Matthew McClean discusses lessons learned from a recent Wisconsin Court of Appeals case that went to arbitration to determine whether the case was properly in arbitration.

Employers with apprentices may receive as much as 2 percent credit – or up to $2,500 – on their Worker’s Compensation Premiums, effective Oct. 1, 2018.

The final price of a construction project is difficult to determine – and must be done before the contract is signed. Saul Glazer discusses the methods to determine that final price – and avoid serious issues that may arise when the price is incorrect.

The 2017-2019 Wisconsin budget eliminates the state’s prevailing wage and institutes tax relief measures that benefit the construction industry. John Schulze discusses these and other significant construction-related initiatives recently signed into Wisconsin law.

The Seventh Circuit Court of Appeals’ dismissal of a copyright claim against a homebuilder sends message of increased scrutiny to copyright “trolls.” Eric Meier discusses the decision and what it means for designers of single family home plans.

Construction involves plenty of risk to all parties involved. While Wisconsin has barred “pay if paid” clauses in some circumstances, it is by no means an absolute bar. James Dash and Bryce Cox advise not to assume that all such clauses are unenforceable – and to negotiate accordingly.

Wisconsin’s economic development future is forever changed as the WEDC embarks on its first “Megadeal,” says Cynthia Buchko. She outlines the details of legislation authorizing $3 billion in taxpayer-funded incentives for the development of an advanced manufacturing facility by FoxConn.

Two proposed state Assembly bills would significantly impact how public works contracts are awarded. Patrick Whiting reviews how construction contracts are awarded in Wisconsin, and outlines the changes in the proposed bills.

In June 2010, a young man was killed when a 13-ton concrete panel fell onto him in Milwaukee. The case is the basis for a recent Court of Appeals decision regarding statute of repose’s concealment exception. Hugh Anderson discusses the case and the nature of the evidence presented to establish the exception.

Steven Mroczkowski discusses a recent ruling in District II Court of Appeals that is a reminder for attorneys to emphasize to clients the importance of clear communication during projects, and that a review of title records prior to filing a lien may be prudent when ownership is not abundantly clear.

Wisconsin appellate courts have remained silent on the Spearin Doctrine, leaving open the question: how will our courts respond to a claim for recovery under this theory? A little used 100-year old doctrine could be the key, says Lauren Triebenbach.

In a recent decision, Wisconsin’s Supreme Court reiterated that private contractors may be immune from damages caused by implementing the plans and specifications provided by a governmental entity. "The decision provides a useful reminder that a private contractor may be able to benefit from the governmental entity’s immunity,” writes Chase Horne.

Mark Schmidt discusses the background and current status of a case now before the Wisconsin Supreme Court. “This case could have a big impact on claims for theft by contractor,” he writes.

With many collective bargaining agreements typically three years long, many employers and unions will head to the bargaining table this year for the first time under Right to Work. Krista Ebbens answers questions about the issues employers face under Right to Work.

A recent decision by a Milwaukee Circuit Court judge serves as guidance to plaintiffs in the future that defendant-specific expert testimony is crucial to establishing negligence on the part of design professionals for construction defects. Brian Smigelski discusses the decision and its impact.

To properly apply prevailing wage rates and hours, lawyers need to understand the nuances of mineral aggregates and material processing in state highway projects. Carrie Cox provides a starting point and guidance to ensure employers comply with the law.

Companies working on public projects need to remain vigilant regarding changes to Wisconsin’s revised Prevailing Wage Law. Carrie Cox identifies the changes to the law now in effect.

Cameron Smith talks about a recently argued Wisconsin Supreme Court case – Melchert v. Pro Electric Contractors. “The case gives the Court the opportunity to expound on two key aspects of immunity from liability for government contractors,” Smith writes.

Projects involving Disadvantaged Business Enterprises (DBE) can be challenging for contractors and non-DBE subcontractors. The Seventh Court’s decision implies that, for the foreseeable future, the law is settled that DBEs are found constitutional when tied to federal funds.

You are a construction contractor who has been tendered the defense of an action pursuant to an indemnity clause in your contract. The recent pithy and instructive Aug. 9, 2016 Court of Appeals decision in Karen Colleran v. Erik C. Wildes is asharp warning; it illustrates the pitfalls if you and your insurer fail to respond correctly.

Whether or not you like the economic loss doctrine, in construction circumstances it appears here to stay – after a recent and well-reasoned decision in Milwaukee County Circuit Court regarding Wis. Stat. section 895.447.

Can the statute of repose still be used to bar cases from moving forward to trial as the law intended, or has the law lost its force? Matthew McClean discusses recent appellate cases applying Wisconsin’s construction statute of repose.

In a recent decision, the Seventh Circuit Court of Appeals weighed in on the application of promissory estoppel in the context of construction bidding. At issue is the impact of bid negotiations upon the general contractor’s ability to assert promissory estoppel where a subcontractor later declines or refuses to honor its bid.

The Construction and Public Contract Law Section has established this blog to provide its members with valuable information concerning issues that are important to attorneys engaged in construction or public contracting law.

In a recent decision, the Seventh Circuit Court of Appeals faced the issue of whether a lender’s title insurance policy covers construction liens that arise from the lender’s decision to cease funding its construction loan due to a loan imbalance.