Construction and Commercial Law Insights

Winter News from Scotti Law Group

February 16, 2023

*Winter Morning in Pittsburgh – January 20, 1994 – taken by David Scotti©

David Scotti recently presented at the ACBA CLE and Holiday Party Event.

ACBA is in blue on a gray background, with a illustration of a yellow bridge in front of a blue sky. "Construction Law Section" is below ACBA, written in black text.

David and a panel of notable attorneys presented on “A Look at Construction Litigation Claims.” LitCon Group sponsored the CLE and participated on all three panels. The CLE focused on three subtopics:

Evaluating, Preparing and Proving Labor Impact Claims
Ins and Outs of Proving Project Delay Claims and Working with a Scheduling Consultant
Maintaining Project Files and Records to Help Support Potential Claims

Please click the Link below for more information:

ACBA CLE Event and Holiday Party

The Separations Act as it Relates to Design-Build

Joe Hrabik presented “The Separations Act and Design-Build Projects” at the Design-Build Institute of America’s Holiday Event on December 13, 2022 at the Engineers’ Club. Joe’s presentation included a checklist of important provisions to include in design-build contracts and also included proposed legislation under which design-build projects can comply with the Separations Act. Thanks to Micah Sayles of CEC for arranging the event. If you would like to receive the presentation slides and the Separations Act article, please send your request to jahrabik@scottilaw.net.

Spotlight on Focused Services

IRMO – Insurance and Risk Management Oversight

One of the services Scotti Law Group provides for our clients is Insurance and Risk Management Oversight. Companies work hard and spend dearly to develop and implement a comprehensive insurance and risk management program. When general liability, auto or workers’ compensation claims arise, your carrier provides insurance defense counsel to represent your company’s interests. Although the counsel provided may be expert in handling tort cases, they are not expert in representing the interests of your company. Having a Scotti Law Group attorney that only answers to you overseeing the handling of your insurance cases makes good business sense. Scotti Law Group strives to protect your company’s interests and to make your interests a priority. The interests of insurance counsel and the insurance company should not predominate over your company’s interests. We can also assist in identifying in-house personnel needed to support the litigation effort and help coordinate responses to discovery requests. Effectively interfacing with insurance counsel will help produce the best possible result.

Contact David Scotti at dascotti@scottilaw.net and find out what Scotti Law Group can do to help your company succeed.

American Arbitration Association

Both David Scotti and Joseph Hrabik are Arbitrators on the AAA Construction Panel. In addition, David is also a mediator with the AAA. David and Joe’s experience serving as neutrals further enhances their skill and ability to act as party representatives in mediation, arbitration and litigation.

American Society of Civil Engineers

David Scotti and Joseph Hrabik attended the American Society of Civil Engineers Meeting and Presentation on January 19, 2023. The presentation by James R. James, P.E. of the U.S. Army Corps of Engineers described the subsurface investigation of the Montgomery Locks and Dam.

Announcement!

Scotti Law Group is pleased to announce that David Scotti will be on a panel of speakers in an upcoming Strafford live video webinar,

“Understanding ConsensusDocs Construction Contracts:

What Lawyers Need to Know”

Scheduled for Tuesday, February 21, 1:00pm-2:30pm EST.

The panel will explain key terms and conditions in the ConsensusDocs Construction Contracts Documents. You will learn the most significant provisions of the prime and subcontractor agreements used in the design-bid-build, design-build, and CM At-Risk agreements. This webinar will outline how owners, developers, and contractors–and their counsel–can utilize these documents in developing construction agreements.

These and other essential questions will be covered:

How to leverage the most updated and important revisions to industry standard contracts in contract negotiations
How do ConsensusDocs contracts provide an alternative to the American Institute of Architects (AIA) and which projects would benefit from exploring this viable alternative?
What key issues do the ConsensusDocs contract documents address?

After the presentations, there will be a live question and answer session with participants so details about these important issues can be answered directly.

Scotti Law Group hopes you’ll join us for the upcoming Strafford live webinar, “Changes to ConsensusDocs Contract Documents” on Tuesday, February 21, 1:00pm-2:30pm EST. Click this link for more information: https://www.sp-04.com/r.php?products/tlj8tbhjra

Or call 1-800-926-7926

Ask for Changes to ConsensusDocs Contract Documents on 2/21/2023

Mention code: ZDFCA

Three people sitting at a table working on a construction project. Two of them are wearing hard hats and the three of them are looking at a laptop.

Headlines is in black text and Happenings is in rainbow text on a white background.

David Scotti was recently interviewed by the Pittsburgh Business Times regarding The Separations Act.

Please click the link below to access the article.

Is The Separations Act a Hindrance to Public Construction or Needed Aid to Even the Playing Field?

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Scotti Law Group wishes you a Happy & Healthy 2023!

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A specialized boutique firm, Scotti Law Group focuses its practice in construction law, from project development, to counseling clients during performance, through any subsequent claims or litigation. David Scotti’s unique experience of more than 35 years is augmented with a support team dedicated to achieving the client’s goals. Because of this experience and focus, clients receive the direct, agile attention of seasoned experts without the overhead and bureaucracy of a big-box firm.

Let’s Get Started

Construction Litigation: Master project disputes

Construction Law: Contracts through completion

Commercial Litigation: Driving proactive solutions

Real Estate Law: Navigating complex disputes

David Scotti Speaks at ACBA Bar Week on the Risks Associated with Growing a Company

June 21, 2021

David Scotti was asked to present at the ACBA’s presentation on Managing Manufactured System Risk in Construction Law.

This program included a one-hour roundtable discussion between David and other seasoned construction litigators, relating to appropriate risk allocation for manufactured systems that are specified in construction projects.

Click below to view David’s presentation, Growing Pains – Risks Associated with Growing a Company.

View the Presentation

Interested in this program but had a conflict and couldn’t attend? The vast majority of ACBA’s webinar CLEs programs are recorded and available for CLE credit online within 72 hours. Click here to see all available ACBA online CLEs.

How the AIA A201-2017 General Conditions are Applicable to COVID-19

October 9, 2020

The AIA A201 General Conditions of the Contract for Construction (“A201”) is one of the most commonly used contract documents in the construction industry. It was first published in 1911 and the most recent version published in 2017 is the seventeenth edition. The A201 helped establish most of the general terms between the Architect, the Owner, the Contractor and Subcontractors. The A201 is generally used together with other AIA Form Contracts which together comprise the terms of the contract.

In reviewing the A201, you will not find a Force Majeure Clause or even the term “Force Majeure.” Force Majeure Clauses are used to allocate risk and address the concept of delay caused by events that are considered beyond a party’s control. Typical force majeure clauses provide that unexpected events such as natural disasters, terrorism, wars or other “acts of God” excuse a party’s non-performance of a contractual obligation. Force majeure clauses are intended to provide some level of relief from the negative effects of force majeure events, such as business interruption and supply chain disruption. Pennsylvania courts have required that the force majeure event must have been beyond the party’s control and not due to any fault or negligence of the non-performing party.

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David Scotti Joins Board of Directors of the BGCWPA

July 17, 2020

David is pleased to announce that he has recently been appointed to the Board of Directors of the Boys & Girls Club of Western Pennsylvania (BGCWPA).

The Boys & Girls of Western Pennsylvania is the largest and most comprehensive after school and summer camp provider in both Allegheny and Somerset counties. The BGCWPA serves several thousand youth between the ages of 4-18; 70% of their members qualify for free or reduced lunch programs. The goal of the BGCWPA is to provide every young person with the essential tools needed for a successful and bright future by doing whatever it takes to activate and advance their potential.

“I am so proud to have been provided with this opportunity to work with young men and women, and to contribute as best I can to their future development.

For more information about BGCWPA, please visit their website at www.bgcwpa.org.

ABA Forum on Construction Law presents 3rd edition of THE Construction Contracts Book

July 9, 2020

THE Construction Contracts Book is now in its third edition and is available at this link: THE Construction Contracts Book.

As the full title states, it provides annotated analysis and comparison of the industry form contract documents. It serves as an invaluable resource offering topic-by-topic comparison of the forms of agreements from the AIA, the EJCDC, and ConsensusDOCS.

David is the Chairman of the Publication Committee for the FOCL and served as an editor of this latest edition.

Most construction lawyers are familiar with the American Institute of Architects (AIA), Engineers Joint Contract Documents Committee (EJCDC) forms of agreements, and the ConsensusDOCS forms. Now completely revised based upon the latest editions of these form contracts, this invaluable resource offers a topic-by-topic comparison of these forms by providing:

An easy-reference guide to how the AIA, ConsensusDOCS and EJCDC forms treat the most significant issues in owner/contractor/subcontractor and owner/design professional agreements
Proposed alternative language for situations where the form contract approach may not provide the best solution
List comparing the most significant provisions from each of these forms (on the CD-ROM)

Each chapter is organized by a topic that is addressed in each of the AIA, ConsensusDOCS and EJCDC owner/contractor/subcontractor or owner/design professional agreements. Chapters are then broken down into three sections. The first section provides general background about the topic, identifying in summary format the critical issues involved with that particular topic. The second section describes the relevant contract provisions in the form contracts that address the topic and compares them to one another. The final section provides alternative clauses for the practitioner to consider in addressing the topic at hand.

Consistent with the goals of the Forum’s Publication Committee, THE Construction Contracts Book (3rd Ed) is a concise, focused and practice-oriented book that should be on every construction lawyer’s bookshelf.

Reviewing and Drafting Construction Contracts in the Age of COVID-19

June 9, 2020

David Scotti joined forces with Laura Nee, CEO of VPO Construction Project Management Software to present the following webinar that gives guidance on determining contractual obligations of businesses during this current health crisis. Reviewing and Drafting Construction Contracts in the Age of COVID-19 also gives direction on protections for both existing and future contracts and includes discussions on issues such as Submittal Schedules, Change Orders and Delays and Extensions. Here is a pdf of the slides from David’s webinar.

Pipeline Contractor Wins $1.5 Million Recovery from Bonding Company

September 25, 2018

Scotti Law Group recently recovered $1.5 Million for a Pipeline Contractor who had performed construction work on a 70-mile long, 30-inch diameter natural gas pipeline that traversed three counties in eastern Ohio. The prime contractor was unable to pay its creditors, including the Pipeline Contractor. Scotti Law Group promptly prepared and filed a detailed payment bond claim on behalf of the Pipeline Contractor against the prime contractor’s bonding company.

The bonding company began to review the bond claim and asserted that it had 60 days to respond. With the time limits for mechanics’ liens due to expire within a few weeks, Scotti Law Group filed mechanics’ liens against the pipeline easements and the underlying fee simple property interests at seven locations along the pipeline where the Pipeline Contractor had performed its work. All property owners, the pipeline owner, the prime contractor and the bonding company were notified of the mechanics’ lien filings.

When the bonding company recognized that the Pipeline Contractor’s lien rights had been preserved, there was no advantage for the bonding company to delay payment. Within days, payment in the full amount of $1.5 Million was released by the bonding company to the Pipeline Contractor.

Bonding companies delay payments due to contractors by requiring that very detailed bond claim forms be completed and submitted along with substantial supporting documentation. Bonding companies further delay payment by questioning payment applications, change orders and other claim documentation. Contractors must be cautious when pursuing bond claims to make sure that their mechanics’ lien rights do not expire while bonding companies deliberate over when or whether they will release payment.

If payment from a bonding company is needed, contact the attorneys at Scotti Law Group for prompt, quality legal advice

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The 104-Year-Old Law that Impacts Your Construction Contracts

May 26, 2017

Sometimes the law struggles to keep pace with the ever-changing needs and demands of the people. As a result, some very old and very puzzling laws are still technically in effect. Dozens of top-ten lists have been written on the most humorous of these laws—like a law in Florida about what parking fees apply to an elephant tethered to a parking meter—but in Pennsylvania one particular law can have a big impact on your next construction project.

The Separations Act of 1913 dictates that public construction projects of $4,000 or more must use separate contracts for services like plumbing or electrical work. Pennsylvania is one of only three states with a law like this, and since the contract requirements for public projects do not extend to private projects, The Separations Act of 1913 has generated quite a bit of controversy.

Speaking with John Baer of Philly.com, our very own David Scotti argued that this law increases project costs, saying, “If this was economically smart, you’d see the private sector doing it.”

And according to Baer, other industry insiders support this analysis, suggesting that public construction costs 10 percent more because of the law.

Read the full article »to learn more about the Separations Act of 1913.

Pennsylvania’s Separations Act

July 20, 2016

In Pennsylvania, when public Owners want to build, the Separations Act, 71 P.S. 1618, requires them to use a multiple-prime project delivery system and each of these prime construction contracts must be competitively bid. This paper will not focus on whether Pennsylvania’s Separation Act should be changed; just like Geico Insurance commercial, “Everyone knows that.” Instead, this paper will assume that for the immediate future this law will remain in place, just as it has for the past one hundred years. Consequently, Public Owners need to manage their multiple prime construction projects the best way possible. This paper will address how this required project delivery system works, its limitations and will identify some key considerations in trying to improve project performance on a multiple-prime project.

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Risk Assessment and Risk Management

November 9, 2015

Companies must become more risk aware. Companies need to assess a project’s potential risk and to be decisive in either avoiding or managing that risk.

As the economy worsens, there is less work available and the competition for that work is increased. This combination of less available work and heightened competition reduces both a company’s volume of work and the profit margins for that work. In order to compete for available work, companies are forced to accept more risk for less potential profit, i.e, companies are forced to risk their financial well being by taking on more risk.

Companies are taking jobs with less profit in them from the start. This leaves companies with a much smaller margin of error for each project. What makes it worse is that there is less potential to make up for a loss on the next job. Also, companies have limited credit available to cover shortfalls. The safety net is shrinking. There is less lubricant in the machine. People are losing their sense of humor.

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