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As a contractor, you are familiar with working together with subcontractors — delegating project scope as part of the overall job. However, when a subcontractor’s work is defective, who is liable for the damage?This is not an unfamiliar issue to contra…
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On November 1, 2023, the Massachusetts Office of Attorney General (“AG”) issued a press release announcing the issuance of a judgment against a local contractor arising out of its subcontractor’s failure to pay prevailing wages on two public construc…
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This article was featured in the November 2023 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.As you know, the construction industry remains a major target for OSHA inspections and enforcement.No.1.2.3.4.5.
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This article was featured in the October 2023 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.In September, the Massachusetts Office of the Attorney General (the “AGO”) released its eighth annual “Labor Da…
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This article was featured in the September 2023 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.On August 8, 2023, the United States Department of Labor (“DOL”) unveiled a new “final rule” intended to �…
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This article was featured in the August 2023 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.As you know, the Massachusetts Department of Public Utilities (“DPU”) oversees investor-owned electric power, natu…
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This article was featured in the Vol. 114, July 2023 edition of the Construction Industries of Massachusetts, Inc.'s Construction Journal.Believe it or not, it has been more than 3 years since the Commonwealth of Massachusetts declared a state of emergency…
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This article was featured in the July 2023 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.In May of 2023, the U.S. Attorney’s Office for the Southern District of New York announced the criminal sentencing of …
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Generally speaking, bid protests challenging an awarding authority’s determination of bidder responsibility among the most difficult to win. While M.G.L. c. 30, § 39M requires an award to the “lowest responsible and eligible bidder,” the public work…
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As many of you are aware, the Federal False Claims Act (FCA) is a powerful tool that is often applied against construction contractors. Under the FCA, a person that “knowingly” presents to the government a false or fraudulent claim for payment faces li…
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The Occupational Safety and Health Administration (“OSHA”) continues to aggressively enforce workplace safety standards and issue citations and penalties for alleged violations. Those in receipt of an OSHA citation have an opportunity to contest the …
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This article was featured in the April 2023 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.The Massachusetts Appeals Court closed out March of 2023 with a decision discussing a commercial general liability (“…
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This article was featured in the March 2023 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.Those of you who work on private projects within the Commonwealth may be interested in a recent Massachusetts Superior …
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This article was featured in the January 2023 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.As many of you are aware, the National Labor Relations Board (the “NLRB”) published a notice of proposed rulemaki…
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Back in 2004, the Massachusetts Legislature introduced new contractor prequalification requirements on public building construction projects. Generally speaking, these requirements are designed to improve the adequacy and efficiency of the competitive bidd…
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On September 12, 2022, the Supreme Judicial Court ("SJC") issued a decision addressing whether its COVID-19 orders tolled the time period under the Mechanic’s Lien statute for a lien claimant to record a notice of contract at the Registry of Deeds. As yo…
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This article was featured in the September 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.On September 5, 2022, the Massachusetts Office of the Attorney General (the “AGO”) released its annual “Labor…
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This article was featured in the August 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.We often write about issues of legal compliance and the Commonwealth’s aggressive enforcement of laws, including tho…
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This article was featured in the July 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog, Alexandra A. Gordon and Robert T. Ferguson, Jr.As many of you are already aware, the Massachus…
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This article was featured in the June 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr.In a recent Webinar, we discussed a broad range of compliance issues…
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This article was featured in the May 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.In a recent press release, the Occupational Safety and Health Administration (“OSHA”) announced that it is initiating…
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A version of this article was featured in the May 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr. and Eric F.On April 21, 2022, the Massachusetts Supreme…
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This article was featured in the April 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr.As many of you are aware, MassDOT revised its guidance concerning t…
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This alert was featured in the April 2022 edition of Construction Industries of Massachusetts's Construction Journal.By: Christopher W. Morog, Robert T. Ferguson, Jr., and Lisa A.On April 4, 2022, the Massachusetts Supreme Judicial Court (“SJC”) issued…
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This article was featured in the March 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr.In a recent press release, the Office of the Attorney General (AG) …
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This alert was featured in the March 2022 edition of Construction Industries of Massachusetts's Construction Journal.By: Christopher W. Morog and Robert T. Ferguson, Jr.The new Infrastructure Investment and Jobs Act (the “IIJA”) is expected to create n…
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This alert was featured in the February 2022 edition of Construction Industries of Massachusetts's Construction Journal.By: Christopher W. Morog and Robert T. Ferguson, Jr.As you know, there are various mechanisms at the federal and state levels aimed to i…
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This article was featured in the January 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr.In September of 2021, the Massachusetts Office of the Attorney Ge…
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A version of this article was featured in the February 2022 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Lisa A. Zaccardelli, Robert T. Ferguson, Jr., Christopher W. Morog, Mark D.Last month, we reported …
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More than 21 months after the outbreak of COVID-19 – and many variants later – the ongoing pandemic continues to impact numerous aspects of everyday life. With no clear end in sight, the federal government began to roll out various federal vaccine and …
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This article was featured in the December 2021 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr.Supply chain and material escalation cost issues have hit the co…
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This article was featured in the September 2021 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr.As many of you are aware, the Massachusetts Attorney General es…
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This article was featured in the July 2021 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr.The Bid Unit of the Massachusetts Office of the Attorney General (Bi…
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This article was featured in the April 2021 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.By: Christopher W. Morog and Robert T. Ferguson, Jr.For those of you who may have missed the Webinar, we outlined impor…
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Tocci Building Corp. v. IRIV Partners, LLC et al.On November 19, 2020, the Suffolk County Superior Court (Judge Ricciuti) issued a decision strictly applying the payment requisition rejection requirements of the Massachusetts Prompt Pay Act, which applies …
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In an October 2020 summary judgment decision, the Massachusetts Superior Court upheld a general contractor’s challenge to the enforceability of a “disincentive” provision in a MassDOT construction contract. In addition to providing for liquidated dam…
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First and foremost, we hope that you and your families remain safe and healthy during this uncertain time. During the COVID-19 pandemic, the Bid Unit of the Massachusetts Office of the Attorney General (the "Bid Unit") has continued to investigate bid issu…
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More and more it seems that no Massachusetts public procurement is complete without some bid error or discrepancy. And because disappointed bidders are constantly looking for ways to invalidate a low bid, the chances are fairly high that they may spot an i…
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The Massachusetts Supreme Court issued a 29-page opinion at the end of May that will be of interest to contractor-employers working public projects in Massachusetts. The article discusses two of the various issues addressed in the court's opinion: (1) the …
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When a bid issues arises, disappointed bidders usually have few options. Sometimes, raising an issue directly with the awarding authority can lead to resolution of the issue. More often than not, bidders will have to decide whether to pursue a bid protest …
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In any given week, you could run a few searches and find recent news articles about fraudulent or criminal contractor conduct in the world of construction. For example, in April of 2019, a branch manager for an insulation contractor pleaded guilty to bid-r…
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Hear from our construction attorneys about what can be learned from the first decision of 2019 from the Bid Unit of Massachusetts Office of the Attorney General, based on a case that they defended.Read more on page 21 of The Construction Outlook magazine.
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The Massachusetts Supreme Judicial Court (“SJC”) closed out August with a decision concerning contractor exposure to Chapter 93A claims for unfair and deceptive trade practices. A divided court concluded that a Chapter 93A claim was subject to the 6-…
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In May’s issue, we discussed a bidder responsibility decision of the Bid Unit of the Massachusetts Office of the Attorney General (the “Bid Unit”). In that case, the awarding authority rejected the low bidder as allegedly “difficult to work with.
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Despite the prevalence of termination for convenience clauses in construction contracts, there has been little caselaw in Massachusetts addressing such provisions. That needle moved on May 2, 2018, when the Massachusetts Supreme Judicial Court discussed …
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The competitive bidding statute for public works projects (M.G.L. c. 30, § 39M) generally requires an awarding authority to award to the lowest eligible and “responsible” bidder on large projects. Because awarding authorities have discretion when …
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In 2015, the Massachusetts Department of Transportation (“MassDOT”) issued Supplemental Specifications to its Standard Specifications for Highways and Bridges. One of the changes in the Supplemental Specifications was the addition of a percentage cap t…
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An awarding authority has discretion when it comes to waiver of non-statutory bidding requirements. However, as illustrated in a recent decision of the Bid Unit of the Massachusetts Attorney General’s Office (the “AGO”), that discretion does not en…
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In Massachusetts, insurance companies owe a broad duty to their insureds to defend against claims within the scope of policy coverage. Many times, an insured will face several different claims in litigation. Some may be covered by insurance, while othe…
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On August 1, 2017, the Bid Unit of the Massachusetts Attorney General’s Office (the “AG”) issued a first-of-its-kind decision concerning MassDOT’s use of minimum unit price requirements. The AG’s well-reasoned opinion invalidates MassDOT’s mini…
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The Massachusetts Attorney General’s Office (“AGO”) closed out February 2017 by announcing substantial False Claims Act penalties against two contractors. In addition to damages and civil penalties, the AGO barred the contractors from bidding on …
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On February 24, 2017, the Massachusetts Attorney General’s Office (“AGO”) announced sweeping penalties against two contractors for violations of the Massachusetts False Claims Act. According to the AGO, a General Contractor (GC) and its subcontract…
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Last year’s Spring Newsletter featured an article discussing a pair of decisions holding that the Federal Aviation Administration Authorization Act (the “FAAAA”) preempts the Massachusetts Independent Contractor Law when it comes to freight and packa…
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Following a well-known Supreme Court case addressing the same issue at the federal level, the Massachusetts SJC issued a decision today holding that judicial review of arbitration awards is limited to the specific grounds set forth in the Massachusetts Arb…
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The Massachusetts high court has just issued a decision holding that permit appeals for certain development projects can be brought only in the Permit Session of the Land Court or in Superior Court, and not in Housing Court or District Court. The decision …
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The Bid Unit in the Fair Labor Division of the Massachusetts Attorney General's Office frequently hears and decides bid protests arising out of publicly bid projects. By statute, the AG's Office has enforcement authority over public construction bidding…
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In a decision issued this afternoon, a federal judge sitting in Boston held that the plaintiff in a wage case could not proceed with claims that he did not disclose in bankruptcy. Hinckley Allen handled the defense for two of the defendants.The plain…
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In a recent opinion, the Massachusetts Appeals Court held that a broad arbitration agreement did not apply retroactively to the parties’ prior course of dealing. The case arose out of claims against an accounting firm. The accounting firm had been pe…
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The Massachusetts Supreme Judicial Court issued a decision this morning holding that, absent an agreement to the contrary, arbitrators in a American Arbitration Association (AAA) proceeding (applying the AAA’s commercial arbitration rules) cannot award …
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The Massachusetts Office of the Attorney General (AG) made news earlier this year when it issued final regulations implementing the new voter-approved Massachusetts Earned Sick Time Law. Effective as of July 1, 2015, the regulations impose new earned paid …
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On September 2, 2015, the Massachusetts Supreme Judicial Court (SJC) issued its long-awaited opinion in Coghlin v. Gilbane, a case that presented questions of first impression regarding the scope of design liability in the context of the construction manag…
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On March 2, the highest court in Massachusetts heard arguments in the appeal of Coghlin v. Gilbane, a case involving the rights and obligations of construction managers on Chapter 149A projects. The case garnered wide attention last summer when the Worcest…
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In a pair of February 5, 2015 decisions likely to garner wide interest, Judge Stearns has held that, as applied to freight and package delivery motor carriers, the Massachusetts Independent Contractor Law is preempted by the Federal Aviation Administration…
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On March 2, the highest court in Massachusetts heard arguments in the Coghlin v. Gilbane appeal, a case involving the rights and obligations of construction managers on Chapter 149A projects. The case garnered wide attention last summer when the Worceste…
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The Appeals Court issued an unpublished decision at the end of October in a case where costly litigation could have been avoided.The case arose out of a public construction project. The millwork subcontractor asserted claims against the general for addit…
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More than 40 years ago, the Massachusetts Supreme Judicial Court recognized that “hurried, last-minute calculations and compilations” often go hand-in-hand with competitive bidding. Bidders on public construction projects frequently refine and improve…
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A decision of the Massachusetts Appeals Court has raised important questions regarding an awarding authority’s ability to waive its own substantive bid requirements for a public construction project.It is well established in Massachusetts that an awardin…
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In an August 2010 decision, the Massachusetts Appeals Court held that a standard American Institute of Architects ("AIA") waiver of subrogation clause in a construction contract applies to insurance policies obtained after completion of a project to bar in…
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Effective October 3, 2008, Massachusetts began the use of civilian flaggers on construction sites. Road flaggers are individuals certified by MHD to perform traffic control services on public roads.New regulation requires awarding authorities to develop a …
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RFQ packages must be customized with project-specific information; provide for a fair evaluation of contractors; practical assistance for evaluaton of contractors/subcontractors; Prequalification Committee must check all references; contractor's financial …
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Brownfields refer to properties which remain undeveloped and unused; run-down properties that have remained unchanged for years; or properties that have not seen progress or development due to soil, groundwater, and actual building material contamination.E…
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This article was featured in the January 2024 edition of the Utility Contractors Association of New England, Inc.’s Construction Outlook.You are undoubtedly familiar with various types of business email compromise scams, likely because you probably recei…
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This article was featured in the October 2023 edition of the Construction Industries of Massachusetts, Construction Journal.The United States Department of Justice (“DOJ”) continues to announce results of its enforcement efforts. Invariably, many of th…
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