New Hampshire & Vermont Chapter

Legal & Regulatory

IF THOSE THAT EARN THEIR LIVING FROM THE FREE ENTERPRISE SYSTEM DO NOT PROMOTE, PROTECT AND DEFEND IT, WHO WILL?

Your affinity with ABC is important. It may be the most deserving cause you can support

Government can never create prosperity. It can only create conditions in which people and organizations can be prosperous. It is not the role of government to create prosperity; it is the role of government to allow prosperity. Our founding fathers had the visionary wisdom to recognize that it is not government, but private businesses and individuals that are the driving force in a stable and prosperous economy. Their wisdom has created the 240 year economic success story that we call the United States of America. Unfortunately, proposed government solutions seem to be further moving business out of the free market and into the political arena. Layers of government bureaucracy continue to create new agencies and new powers for the very authorities that cause the issues they are trying to resolve.

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What you need to know about delays, but were afraid to ask...(Published in 2002)

In fielding contract questions from construction clients, one of the more common areas of concern centers on the treatment of delay issues under the AIA documents.  Primarily, contractors want to know what rights they have in the event of a delay caused by the owner or architect. My clients don't generally find it amusing when I unlock the legal mystery of the AIA documents by disclosing to them that, under the AIA documents, delays are never the owner's fault unless the architect says so.  As a result, I'll try to expand on that principle.  My comments are most certainly skewed toward the interests of contractors, and are worthy of consideration when you are confronted by the AIA forms in a standard Design/Bid/Build project, or any other type of project utilizing form A201.

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RESPONDING TO MISSING CLASSIFICATIONS ON PREVAILING WAGE PROJECTS
 

If a classification of worker that is to be employed on a project is not included in a prevailing wage determination, one must be determined. The contracting officer is the primary contact to approve an additional classification and wage rate/fringe benefit. However, the following criteria must be met:

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RESOLVING CONSTRUCTION DISPUTES: ARBITRATION VS. LITIGATION

By Richard C. Gagliuso
 

Most construction contracts address, in some fashion, the question of how disputes arising out of the contract are to be resolved. Many such “dispute resolution provisions” require the parties to the contract to submit their disputes to arbitration, as opposed to litigation. It is important, therefore, to understand what arbitration is, and its advantages and disadvantages relative to litigation.

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ARC FLASH DANGERS/NFPA 70E 

OSHA IS WATCHING ALL CONTRACTORS AND OWNERS FOR COMPLIANCE

An arc flash explosion hotter than the sun erupts from a piece of electrical equipment. This superheated short-circuit can exceed temperatures of 14,000 degrees – high enough to melt metal and severely burn a worker. The intensity of the flash can damage an electrical worker’s eyesight and the pressure waves from the discharge can potentially blow out an eardrum.

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DAVIS BACON, $8.6 BILLION IN OVERPAYMENT
 

With the increase in public works construction spending due to stimulus funding and increased interest in public works projects by contractors who are seeking new markets, the Davis Bacon Act (DBA) has become a frequent topic. The Davis Bacon Act is a feature of public construction projects under which construction projects funded entirely or in part by the federal government must pay a government determined “prevailing wage” to the workers on the project. The federal Davis Bacon Act was adopted in 1931. Since then many states (32), including Vermont have enacted “mini” Davis Bacon Acts that also determine “prevailing wages” for state funded construction projects (NH did have a state prevailing wage law, it was repealed in 1984).

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Five Contract Clauses You Can't Live Without

Kelly Gagliuso

The contract forms used by my clients range from one page hand-written proposals to 50 page standard form contracts published by AIA, AGC and EJCDC. Whether your form agreement is home grown or standardized, there are a handful of essential provisions which are routinely omitted from construction contracts. Consult with your counsel to determine whether including the 5 clauses described below is appropriate for you.

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LIQUIDATED DAMAGES DEMYSTIFIED

Kelly Gagliuso, Gagliuso & Gagliuso, PA
 

Commencement and substantial completion are two of the most important concepts covered in any construction contract. The time set for performance of your responsibilities is either measured from the contract's commencement date, or set forth as a specific date for completion of the project as a whole. Intertwined with these requirements you will often find some provision for the imposition of "liquidated damages" by the owner in the event that you fail to meet the completion dates specified in the contract. From a legal perspective, the amount of liquidated damages to be assessed should closely approximate the actual losses the owner or contractor will incur if the project is not finished on time. In practice, however, the damages assessed often bear little resemblance to such losses and are often more akin to a financial hammer used to induce timely performance.

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SECURITY OPTIONS DURING DIFFICULT ECONOMIC TIMES: MECHANIC'S LIENS DEMYSTIFIED

Kelly Gagliuso, Gagliuso & Gagliuso, PA
 

It is an understatement to say that grasping the requirements of the mechanic’s lien statute can be difficult and frustrating, not to mention boring.  Understandably, most of you do not have the urge to master the basics of lien law, at least not without a good dose of caffeine at the ready.  Well, it’s time to bite the bullet and fill your cup with high test.  In today’s economy, a basic understanding of the mechanic’s lien law could provide you with the tools you need to protect yourself from the devastating results of an upstream business failure or an otherwise uncollectible payment claim.

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The Perils of E-mail

by Richard C. GagliusoGagliuso & Gagliuso Professional Association
 

Electronic mail is a part of our personal and professional lives that is here to stay. The preparation and delivery of mail and other documents electronically has become commonplace, and few of us could conceive of doing without this means of communication. Yet, far less well known are the legal pitfalls associated with the use and exchange of e-mail and other project documentation in electronic format, including plans and specifications, correspondence, job cost records, financial spreadsheets and other documents in routine use among contractors.

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