Showing 17 posts by Stephen P. Withee.
With its unanimous decision in Atlantic Marine Construction Co., Inc. v. U.S. District Court for the Western District of Texas the United States Supreme Court stated its strong support for the enforcement of contractual forum-selection clauses. Specifically, the Court outlined how federal courts should determine whether to transfer a case filed in a federal district court different than the contractually selected forum. In describing this process the Court recognized that it would be rare for a court to not follow the forum-selection clause. While this decision is good news for contractors attempting to enforce their contracts the Court’s decision leaves open some important questions which may lead to future uncertainty related to these clauses. Read More ›
FEDERAL CONTRACTORS COULD BE LIABLE UNDER FALSE CLAIMS ACT FOR “FRAUDLENT” UNDERBIDS OR “FALSE” ESTIMATES
A recent federal appellate court held that there may be situations in which a contractor’s intentionally low bid for a federal contract could give rise to liability under the False Claims Act (FCA). Read More ›
The Office of Management and Budget recently issued a memorandum outlining a new Executive Branch policy to federal agencies encouraging them to ensure prime contractors are promptly paying their small business subcontractors. Specifically, the OMB indicated agencies should, to the full extent provided by law, temporarily accelerate payments to prime contractors “as soon as practicable” with a goal of issuing payment within fifteen days of receiving proper documentation (instead of the thirty days required by the Prompt Payment Act). This, in turn, will allow prime contractors to pay their small business subcontractors more quickly. Read More ›
What happens in Ohio when both a bidder to a public project and the public entity make mistakes in a fixed price procurement? According to the majority in N.L. Construction Corp. v. Freed Housing Corp., 2012-Ohio-350, the public entity’s mistake trumps the bidder’s and, therefore, the public entity loses. Read More ›
At a press conference on April 7, 2011, the Ohio Attorney General and two Ohio state senators introduced SB 143, Ohio’s False Claims Act. Ohio currently does not have a false claims act and, as a result, this bill presents the possibility of a large change in Ohio public. A brief examination of the key provisions, therefore, is useful to see what may be on the horizon for entities that receive state funds either through contracts or grants. Read More ›
On February 11, 2011 the Small Business Administration issued final rules that resulted in extensive changes to SBA’s Section 8(a) Small Disadvantaged Business program. The new rules become effective March 14, 2011. While the rules address a wide array of areas in the 8(a) program, the most significant changes relate to joint ventures between 8(a) companies and non-8(a) companies as well as the frequently used mentor-protégé agreements. These changes warrant close attention to 8(a) contractors and those that seek to do business with them. Read More ›
Judge Larry J. McKinney of the United States District Court for the Southern District of Indiana (Indianapolis Division) recently issued a Memorandum Opinion & Order, after a four day bench trial, in favor of Wal-Mart Stores, Inc. and against S.C. Nestel, Inc. and its surety. Read More ›
A common element of construction contracts is a mandatory dispute resolution procedure that must be completed before a lawsuit can be filed. On state funded construction projects in Ohio contractors must engage in the “Article 8” dispute resolution process before it can bring an action against the state. A contractor must bring a lawsuit within two years of the “exhaustion” of this process. Thus, it is vital for contractors to understand when it has completed this process. While this standard is seemingly straightforward, it is not uncommon for the decision makers in this process to miss deadlines, give incomplete decisions or simply ask for more information – sometimes all in the same “decision”. A recent appellate court opinion, clarifies when the claim is “exhausted” and, therefore, when the statute of limitations clock begins to tick. Read More ›
Construction projects and land acquisitions for development are frequently financed by a mix of private and public funding. As previously outlined, Ohio’s governor has issued a set of “guidelines” for identifying when prevailing wage will be applicable to such a project. The Ohio Supreme Court, however, recently heard arguments in a case that may provide authority and direction with greater legal weight than the guidelines. Read More ›
Ohio Governor Ted Strickland announced this week the creation of a website devoted to distributing information regarding the American Recovery and Reinvestment Act. It is meant to provide information related to the funds for infrastructure and other unbudgeted elements of the Act. The website, www.recovery.ohio.gov, is designed so those interested in obtaining funds can fill out an online form to express their interest. This is not an application to receive funds. Instead, a list will be compiled from the applications that will be forwarded to the appropriate government agencies. Once the Act is signed into law, those that have filled out a form and meet eligibility requirements will be provided updates with information as to how to apply for funds. Read More ›
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C. Michael Shull, III focuses his practice on construction law and litigation. Michael's client representations range from casinos and ENR Top 400 contractors to design firms and subcontractors.