Smith Currie Oles

Proposed Rule Would Impose Government-Wide Controlled Unclassified Information (CUI) Handling Requirements by Smith Currie Oles Global cybercrime costs are expected to reach $10.5 trillion annually by 2025. (Cost of a Data Breach Report, 2024, IBM).  Cybersecurity is not a partisan issue — the government has a shared interest in protecting our nation against cyber threats. […]

General Services Administration Issues a Class Exception for Land Port of Entry Projects. By: Jacob W. Scott, SmithCurrieOles. In response to the recent decision in MVL USA, Inc., et al., v. United States in which the Court of Federal Claims found that the use of project labor agreements (PLA) on large-scale construction contracts violated the […]

Huge Swath of Federal Contract and Assistance Spending. By Smith Currie Oles *On January 29, 2025, the White House rescinded OMB Memorandum M-25-13, which suspended funding for federal assistance programs. The Department of Defense (DoD) has temporarily suspended the award of new contracts, except for emergency contracts, while reviewing compliance with the latest presidential directives. The […]

Court of Federal Claims Holds That Project Labor Agreement Requirement in Construction Contracts Violates Competition in Contracting Act. By: Smith Currie Oles.   On January 19, 2025, the Court of Federal Claims issued its decision in MVL USA, Inc. et al. v. United States, holding that the project labor agreement (“PLA”) requirement initiated in Executive Order […]

By: SmithCurrieOles.   “Cyberattacks have emerged as one of the most significant threats to our homeland,” says Secretary of Homeland Security Alejandro N. Mayorkas. He is not wrong. Global cybercrime costs are expected to reach $10.5 trillion annually by 2025. The global average cost of a data breach in 2024 reached $4.88 Million—a 10% increase over […]

To Congress for Fiscal Year 2024. By: Smith Currie Oles. Key Takeaways The number of protests filed with the Government Accountability Office (“GAO”) decreased by 11 percent in 2024. The GAO’s sustain rate of 16 percent in 2024 decreased from 31 percent in 2023. The GAO’s effectiveness rate of 52 percent in 2024 decreased from […]

For Service-Disabled Veteran-Owned Small Businesses. By SmithCurrieOles On August 5, 2024, the Small Business Administration’s (SBA) direct final rule (Rule) regarding self-certification for Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) took effect. The Rule was issued on June 6, 2024, which proposed eliminating SDVOSBs’ ability to self-certify for federal government contracts or subcontracts that count toward agency […]

Good News for Contractors. By Allison G. Geewax, partner, Smith Currie Oles, Washington D.C.   Government contractors and agencies alike are breathing a sigh of relief as the Department of Defense, General Services Administration, and National Aeronautics and Space Administration issued an interim rule on November 12, 2024, to clarify what we have all long known […]

Build America, Buy America Act (BABA) – Federal Highway Administration (FHWA) Compliance In the Spotlight Written by Joseph Haughney, Smith Currie Oles. BABA is the most expansive domestic preference law in American history, requiring all federal funding on state and local projects to meet minimum BABA requirements for (1) iron and steel, (2) manufactured products, […]

Written by James F. Nagle, Smith Currie Oles With an increase in federal government procurements–thanks in part to the American Recovery and Reinvestment Act–and a struggling private construction market, many contractors have decided to take their first stab at bidding federal projects. This dual increase in federal contracts and first-time federal bidders will inevitably lead to […]

Legal Challenges to FTC’s Rule.   Written by Kenny R Cantrell, III, and Erica Maria Alvardo Gomez, Smith Currie Oles On April 23, 2024, the Federal Trade Commission (“FTC”) approved a broad rule that bans a large majority of non-compete clauses between employers and their workers (the “Rule”). (Read our April 2024 article about the details […]

By Miles D. Jolley, Smith Currie Oles Consequential damages deserve some time in the spotlight as an important issue to consider in construction project risk mitigation. Construction project participants frequently come across language addressing consequential damages in their contracts. However, consequential damages do not get top billing like some other equally critical issues such as […]

The Duty to Proceed: With the rise of mega-projects, the duty to proceed poses increased risks for contractors and sureties. Contractors, subcontractors, owners, and sureties are generally familiar with the duty to proceed—the duty of a contractor or subcontractor to continue performing work during the pendency of disputes over work and/or claims. The duty is entrenched in […]

With the rise of mega-projects, the duty to proceed poses increased risks for contractors and sureties. Contractors, subcontractors, owners, and sureties are generally familiar with the duty to proceed—the duty of a contractor or subcontractor to continue performing work during the pendency of disputes over work and/or claims. The duty is entrenched in standard industry contracts […]

Liquidated Damages Clauses in Construction Contracts. Liquidated damages clauses in construction contracts offer contracting parties certainty about the cost of late or incomplete performance. Liquidated damages specify a sum of damages that represents damages that the non-breaching party is likely to incur should timely completion of a milestone not be met. When used properly, liquidated […]

A Concise Guide to Washington State Protests. The right to protest an award on the state or local level is typically subject to each state’s specific governing statutes and regulations. In Washington state, bid protests under the competitive sealed bidding process may be submitted by an aggrieved party to challenge a contract award. An aggrieved […]

To Federal Regulatory Challenges as it Rules On Loper Bright and Corner Post Prior to Adjourning for the Summer A duo of decisions issued by the U.S. Supreme Court over just the course of one week has changed the legal landscape for federal agencies and will likely result in a flood of litigation challenging federal […]

Project Labor Agreements Are Now Required for Large-Scale Federal Construction Projects Key Takeaways As of January 22, 2024, project labor agreements (“PLAs”) are required on direct federal construction projects of $35 million or more, with limited exceptions. Every federal contractor and subcontractor is required to comply with the new PLA requirements. Background The roots of […]

Under the Equal Access to Justice Act Litigating against the United States can be costly, especially in construction disputes where extensive discovery and expert witnesses are the norm. Congress enacted the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 and 28 U.S.C. § 2412, in 1980 to diminish the deterrent effect of the […]

The United States Supreme Court has held that a U.S. District Court must stay a case, rather than dismiss it, if the parties enter arbitration under the Federal Arbitration Act (“FAA”). The FAA states that when a dispute is subject to arbitration, the court “shall on application of one of the parties stay the trial […]

Build America, Buy America Act – Federal Aviation Administration (FAA) Compliance and Waivers in the Spotlight While contractors incur the extra costs involved, agencies have slowly begun to implement  Build America, Buy America Act Pub. L. No. 117-58 (“BABA”) requirements after the final Office of Management and Budget (“OMB”) guidance was released last October in response […]

Two New Proposed Rules Signal Big Changes for Cybersecurity in Federal Contracts The United States faces increasingly sophisticated cyber campaigns that threaten the public and private sectors’ security and privacy. The public and private sectors have been rocked by vulnerabilities. Such examples include the December 2020 ransomware attack on SolarWinds that paralyzed multinational companies and […]

Contractors and subcontractors in the commercial construction industry should consider expedited, or fast track, arbitration clauses in their construction contracts. Expedited arbitrations are meant to be a cost-saving measure for smaller claims and typically involve a shorter schedule, limited or no discovery, and a single arbitrator. While expedited arbitrations are typically used for smaller claims, these […]

A recent unpublished opinion by Division One of the Washington Court of Appeals reiterates that contractors must strictly comply with notice and claim procedures in the contract. If not, the contractor potentially faces severe consequences, including a waiver of its claims. In February 2014, the City of Snoqualmie (the “City”) advertised construction bids for a […]

Howard Roth, partner in our Seattle office, spoke with Denise Ryser, Executive Director for the Pacific Northwest Defense Coalition Fund, regarding how increasing regulations, such as the Buy American Act, are impacting government contractors and their cost of doing business. Read more in the latest issue of Northwest Aerospace News Magazine here (p. 38). Read more

As Government contractors know, under each of the Federal Acquisition Regulation (FAR) Changes clauses, e.g., FAR 52.243-1 – FAR 52.243-4, the Government can unilaterally change the terms of the contract. Such a constructive change under these Changes clauses is subject to a Request for Equitable Adjustment (REA) or Contract Disputes Act (CDA) claim, but the […]

The Office of Management and Budget’s (OMB) August 14, 2023, final guidance for the “Build America, Buy America” (BABA) Act requirements went into effect on October 23, 2023. OMB’s final guidance has far-reaching implications for government contractors in the infrastructure sector, to include a new category of “construction materials” that must be produced in the […]

How Contractors Can Both Use and Protect Themselves from Contractual Time Limits for Bringing Suit Contractors often include time limits to bring claims in their contracts to prevent themselves from being dragged into litigation over projects that were completed years earlier. However, if the contract time limit is shorter than the state’s limitations for bringing […]

The success of any construction project hinges on careful planning, execution, and administration. The same is true for construction contracts. A recent Texas Court of Appeals case, Wood Group USA, Inc. v. Targa NGL Pipeline Company, LLC, emphasizes the need for precision in construction contracts and highlights the significant impact such cases have on contracting […]

Government Cannot Rely on Sovereign Acts Defense to Claim for Costs of Work Performed During COVID-19 Shutdown The Armed Services Board of Contract Appeals (“ASBCA”) recently swatted down an attempt by the U.S. Army Corps of Engineers (“USACE”) to use the sovereign acts doctrine to dodge liability for extra costs incurred during a COVID-19 shutdown. […]

On June 23, 2023, the Supreme Court of the United States in Coinbase, Inc. v. Bielski held that all federal courts must stay litigation proceedings while a motion to compel arbitration is appealed. This decision resolves a long-standing split between federal districts in favor of a uniform rule applicable to all federal courts. Prior to Bielski, some federal […]

Key Takeaways The Department of Labor (“DOL”) announced its long-awaited final rule updating the Davis Bacon and Related Acts. The new rule will have significant impacts on many industries and businesses, particularly federal construction contractors and subcontractors. Regulated parties have 60 days from publication of the final rule in the Federal Register (currently scheduled for publication on […]

The last few years have seen a number of protest decisions addressing whether offerors comply with the requirement to be registered in the System for Award Management (SAM) at the time of proposal submission through the time of award. A recent decision from the Court of Federal Claims reminded contractors about the risks of failing […]

The Cardinal Change Doctrine: An Important But Limited Tool to Protect Against Excessive Scope Changes A fundamental principle of contract law is that one party cannot unilaterally change the terms of the agreement. Nevertheless, most construction contracts include provisions allowing the owner to unilaterally change the scope of the contractor’s work. These provisions often outline […]

A natural progression in design-build public works procurement is to start collaboration with the design-builder earlier—in the program development process, when the design-builder’s expertise can be harnessed to assist the owner to determine design parameters most likely to deliver the facilities the owner needs, within the owner’s budget. This development is called progressive design-build (“PDB”) […]

On federal contracts, the government has several general rights and prerogatives. Two such rights include the right to terminate the contract for convenience and the right to terminate the contract for default. This article provides an overview of each termination and explains the key differences. Termination for Convenience A termination for convenience can occur when […]

Drafting an Enforceable Forum Selection Clause in the Fourth Circuit Parties can expect federal courts to scrutinize forum selection clauses in federal public contracts. Subject to multifactor reasonability tests and ambiguity inquiries, only the clearest clauses survive. A North Carolina District Court declined to enforce a forum selection clause that sought to lay venue outside […]

There is no “one-size-fits-all” approach to choosing the dispute resolution procedure in construction contracts. The appropriate form of dispute resolution depends on the particular situation of each project and the parties’ priorities. In this article, I will give you some things to consider when deciding whether arbitration makes sense as the form of dispute resolution […]

Responsible Managing Employee Rules Are No Joke: Failure to Adhere to Responsible Managing Employee Requirements May Result in Waiver of the Contractor’s Right to Compensation for Work Performed For the second time in calendar year 2022, the Court of Appeal of California has found California Contractors State Licensing Laws bar contractors from collecting for work […]

On Monday, April 10, 2023, the Small Business Administration (SBA) released a final rule regarding appeals from protest determinations related to Historically Underutilized Business Zone (HUBZone) small business concerns. The new rule allows government contractors, disappointed bidders, and contracting officers to appeal protest determinations that turn on an entity’s status as a HUBZone small business […]

There may be a new opportunity for small businesses to expand their book of business when it comes to their pursuit of federal contracts. In the summer of 2022, the Small Business Administration (SBA) released a final rule that may offer a wider range of opportunities for contractors to compete in federal construction procurement. While […]

Retainage is a contractual arrangement between the parties generally intended to offer the party paying for construction some added security for incomplete work, non-payment, and defective workmanship issues. The terms and conditions of retention, including the amount to be withheld, its intended use, the circumstances under which it will be released, and any interest payable […]

Construction accidents can cause significant personal injury or death, property damage, job delays, and increased costs. As a result, it is imperative that owners and contractors continuously monitor and manage potential safety concerns on construction job sites with the intention of reducing accidents… Read more

Virginia recently enacted legislation banning the use of conditional payment clauses, known as “pay-if-paid” clauses, on both public and private construction projects within the Commonwealth. The legislation, known as “SB 550,” went into effect on January 1, 2023, and applies to all construction contracts executed on or after that date. As a reminder, SB 550 […]

The California Legislature introduced more than 4476 bills in 2021-2022 sessions, with 1726 coming in the second session, down from the 2750 in the first session. This article summarizes some of the more important bills directly affecting contractors, addressing issues such as payroll liability and reporting, Read More…

Between a constantly changing regulatory environment, supply chain issues, inflation, and the 2022 mid-term elections, it can be easy to miss relatively small changes to regulatory requirements for federal government contractors and construction professionals. One change that might have been missed is, thankfully, an easy requirement to complete. Companies subject to regulatory oversight by the […]

We have previously written about the potential of new environmental requirements for federal contractors. On November 10, 2022, the White House issued a statement regarding the first of these requirements, which came in a Rule proposing changes to the Federal Acquisition Regulation (FAR) that will require certain contractors to disclose their greenhouse gas (GHG) [1] emissions and climate related financial risk. […]

Climate change has been a hot topic of discussion for some time now. President Joseph Biden’s administration has focused in on that issue, and the related need for protecting the environment, as part of its regulatory agenda through several Executive Orders (EO). Each of those EOs, specifically No. 14030 (“Climate-Related Financial Risk”), No. 14057 (“Catalyzing Clean Energy Industries and […]

During periods of growth and diversification, contractors often look to new geographic regions as part of their strategic business development. When expanding to a new region, contractors must examine several risk and operational considerations before setting down that flag and opening a shop. It serves contractors well to establish their own internal checklist to account […]

Recent news related to construction material escalation has been sobering. Today, contractors face increased risks related to cost escalation of numerous construction materials, and it is expected that increased costs will be passed on to owners in the form of increased bid prices. While U.S. Bureau of Labor Statistics data indicates that bid increases lagged […]

Thinking of Setting Down a New Flag? What Must a Contractor Know When Expanding to a New Region? During periods of growth and diversification, contractors often look to new geographic regions as part of their strategic business development. When expanding to a new region, contractors must examine several risk and operational considerations before setting down […]

Recent news related to construction material escalation has been sobering. Today, contractors face increased risks related to cost escalation of numerous construction materials, and it is expected that increased costs will be passed on to owners in the form of increased bid prices. While U.S. Bureau of Labor Statistics data indicates that bid increases lagged […]

In January of this year,  the Court of Federal Claims issued a harsh reminder of the serious implications of the certification of a claim when dealing with the federal government. In Lodge Construction, Inc. v. United States, not only did the contractor fail to recover on its affirmative claims, but the Court also found merit in […]

In January of this year,  the Court of Federal Claims issued a harsh reminder of the serious implications of the certification of a claim when dealing with the federal government. In Lodge Construction, Inc. v. United States, not only did the contractor fail to recover on its affirmative claims, but the Court also found merit in […]

California Court of Appeal Says To Licensed Contractors, “Hire Unlicensed Subcontractors At Your Own Peril!” In an opinion that should be a warning to all licensed contractors in California, the Court of Appeal held that licensed contractors cannot collect payment from project owners for unlicensed subcontractor work under California Business and Professions Code § 7031(a). […]