Under Construction - March 2014


Letter from the Editor

by James J. Sienicki

Hope your 2014 is off to a great start. In our robust Spring 2014 issue of Under Construction, we examine several new state court decisions and recent trends that affect the construction industry throughout the western United States. We also discuss a number of timely federal contracting issues.

We begin our newsletter with Dan Frost’s analysis of a recent Nebraska court decision involving the Keystone XL pipeline, and other cases in the western United States involving eminent domain. As Dan notes, these decisions provide important context for the future of siting and right-of-way issues involving pipelines and asserts that courts are now more carefully examining pipeline owner’s eminent domain authority. Leon Mead follows with an article discussing a recent Nevada Supreme Court decision affecting the legal consequences for out-of-state design and construction firms bidding on work or services for landmark quality design or construction projects. In our third article, John Wirthlin and Mark Morris discuss a recent Utah Supreme Court ruling that rejects the multi-employer worksite doctrine in Utah, a decision that they conclude may alleviate exposure for general contractors in the state but could incite increased lobbying efforts to amend Utah’s statute.

In our fourth article, Brett Johnson reviews several government contracting compliance issues, and kickbacks, bribes, illegal gratuities and other forms of unethical conduct that violate both domestic and international laws and regulations prohibiting these activities. Brett then outlines the various traps that exist and provides a series of “best practices” for companies to help ensure their continued compliance and competitive advantage in the government contracting sector. In the subsequent article, Brett and Matt Schoonover discuss the qualification requirements and opportunities for federally recognized small, women-owned and veteran-owned businesses, which may provide another way for companies to get a piece of the government contracting “pie.” In our sixth article, Lindsey Martinez provides an overview of the California Energy Commission’s new Energy Efficiency Standards—set to go into effect in July—that may affect designers and builders performing jobs in California.

In the next article, Rick Erickson and Lawrence Brown discuss the increased use of public-private partnership (i.e., P3) models in the United States, noting that, to date, 33 states have enacted statutes that enable the use of P3 structures for expanding the nation’s transportation infrastructure. Rick and Lawrence suggest that companies interested in P3 projects should be legally and logistically prepared for financing, contracting and project delivery requirements and should have some local boots on the ground in order to land work and projects, and to avoid costly delays and reputational damage.

This edition finishes with an important and cutting edge article by Eric Spencer about how a contractor’s Experience Modification Rate (EMR) matters more than ever. Eric also offers insightful tips that should be helpful to contractors.

I hope you enjoy this issue of Under Construction. Please let me know if you have any questions or comments about any of these articles. I also enjoy hearing from you about topics you would like us to address in future editions. Enjoy this spring!

Jim Sienicki

[Read the full newsletter here.]