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Joseph Darr

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Joe’s practice is focused on construction and commercial litigation in both state and federal courts. His experience includes representing contractors, subcontractors, engineers, and sureties in construction and commercial disputes on large public infrastructure and private projects.

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The use of Dispute Review Boards on large public construction projects has become more and more common. Examples of public owners using DRBs on their projects include the Florida Department of Transportation, the Texas Department of Transportation, and the California Department of Transportation.

DRBs are usually comprised of one to three people who are appointed to the DRB to make recommendations about any disputes that arise on a project. Submission of a dispute or claim to the DRB may be a mandatory step that must be taken before anyone can file a lawsuit seeking additional compensation for work on a project.

Many times, the mandatory claims procedures in the contract between an owner and the prime contractor are flowed down to the subcontractors on the project. As such, there are several things that anyone, including subcontractors, working on a public project with DRB procedures should know.…

Continue Reading Three Things to Know About Construction Dispute Review Boards

Willie Nelson supposedly quipped the following about divorce: “Why is divorce so expensive? Because it’s worth it!” The same can be true of an owner looking to “divorce” a prime contractor or a prime contractor looking to part ways with a subcontractor on a construction project.

But much like divorce, the termination of a contractor should only be considered where all faith has been lost in a contractor to perform its obligations under the parties’ contract. This is because terminating a contractor has been said to be the most drastic of sanctions.…

Continue Reading Four Things to Consider Before Terminating a Construction Contract

When submitting bids for projects, prime contractors routinely rely on bids from subcontractors. But can a subcontractor back out of a bid it submitted to a prime contractor after the prime contractor is awarded a project? I hate giving a non-answer, but as with most legal questions, it depends.
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Continue Reading Can a Prime Contractor Hold a Subcontractor to Its Bid?

There are many ways a project owner or contractor can breach a construction contract. The following is a list of the six most common types of claims a contractor may assert against an owner or a subcontractor might make against a prime contractor:

1. Payment claims: One very common dispute is where the owner fails to timely pay the prime contractor or the prime contractor does not pay a subcontractor on time. Cash flow is very important in construction. If the owner does not timely pay the prime contractor, then the prime contractor may have difficulty paying its subcontractors and the subcontractors may not be able to pay their sub-subcontractors and/or suppliers.

Many times, payment disputes turn on whether the owner had a valid reason for withholding funds from the contractor. For example, if the contractor has submitted a payment application for deficient work, then the owner should not have an obligation to pay for that work. But if it turns out that the work was not deficient, then the owner may have breached the contractor by not timely paying the contractor.

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Continue Reading The Six Most Common Contractor Claims

Many commercial construction contracts have deadlines for the contractor or subcontractor to complete its work. Typically, a contractor is entitled to the time allowed under the contract to finish its work. If a contractor is forced to complete its work earlier than the specified completion deadline, the contractor may be entitled to additional compensation for accelerating its work.

There are two types of acceleration–actual acceleration and constructive acceleration. Actual acceleration occurs when a contractor is expressly directed to pick up the pace of the work. Constructive acceleration happens when a contractor is entitled to a time extension, but the project owner refuses to give the time extension and requires the contractor to complete its work by the original deadline.…

Continue Reading The Basics of Contractor Acceleration Claims

Contractor claims for differing site conditions remain fairly common. There are two types of DSC claims. Under a Type I claim, a contractor can obtain additional time and compensation where the contractor encounters a subsurface or latent physical condition at the project site that differs materially from the conditions indicated in the parties’ contract.

For example, contractors have successfully asserted Type I claims where the contractor encountered a groundwater table that was higher than indicated in the contract documents while performing underground work.

With a Type II claim, a contractor may be entitled to additional time and compensation where there are unknown and unusual physical conditions at the project site that differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the parties’ contract.

An example of a Type II condition may be where a contractor performing a job that requires soil work encounters tough soils that are more difficult to excavate than expected and no bidder, no matter how experienced, would have anticipated the conditions actually found.

If a contractor believes it is entitled to additional time and compensation on a project due to a DSC, the contractor should consider submitting a claim. There are four things a contractor should know about DSC claims:…

Continue Reading Four Things to Know About Differing Site Condition Claims

Surprisingly, one of the my most popular posts was about creating joint ventures to bid on public projects. Since I wrote that post, it has become more and more common for construction companies to team up to bid on public projects.

When forming a joint venture, it very important to have a written joint-venture agreement between the contractors teaming up to bid on a project. Here are five provisions that should be included in every construction joint-venture agreement.…

Continue Reading Five Provisions to Include in a Construction Joint-Venture Agreement

There are two types of differing site condition claims–Type I and Type II claims. Generally, a contractor may make a Type I differing site condition claim where the contractor encounters a subsurface or latent physical condition at the project site that differs materially from the conditions indicated in the parties’ contract.

Under a Type II claim, a contractor may assert a DSC claim where there are unknown and unusual physical conditions at the project site that differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the parties’ contract.

Both Type I and Type II DSC claims can be difficult to prove. Last week, after having a seven-day trial, a federal court rejected a subcontractor’s $2.4 million DSC claim in Phillips & Jordan, Inc. v. United States.…

Continue Reading Federal Court Rejects Subcontractor’s $2.4 Million Differing Site Condition Claim

Two contract provisions that are frequently litigated in construction disputes are no-damages-for-delay and liquidated damages clauses. A no-damages-for-delay clause typically provides that if there is a delay caused by the owner or others, the contractor will not be entitled to any additional compensation for that delay. It is a clause that project owners love because it limits their liability for delays on the project.

Similarly, a liquidated damages clause is an owner-preferred contract provision that usually sets a fixed amount for which the contractor is liable to the owner if the project is not finished on time. Often, the amount is set as a certain sum of money per day the project is late (e.g., $1,000 per day). The Florida Second District Court of Appeal recently addressed both those provisions in an opinion it issued in January 2022.…

Continue Reading Florida Court Finds No-Damages-for-Delay and Liquidated Damages Clauses Unenforceable

Payment bonds protect subcontractors, sub-subcontractors, and others who provide labor and materials for a public project. Subcontractors and others who want to make a payment bond claim must follow the legally-required steps. The required steps depend on the type of project (e.g., federal and state government projects) and the role of the company making the claim (e.g., subcontractor, sub-subcontractor, supplier to sub-subcontractor, etc.). If you do not follow the steps by the required deadlines, you may lose your payment bond rights.

This post provides a high-level overview of the steps that must be taken to perfect a payment bond claim on most Florida state and federal public projects.…

Continue Reading How to Make a Payment Bond Claim on a Public Project