The Firm’s core focus and specialty is construction law and construction industry disputes.
For more than 20 years, Jeff Venzie, the Firm’s founder and owner, has represented a broad range of clients in all facets of construction projects, including owners, general contractors, construction management firms, prime contractors, subcontractors, material suppliers and sureties.
The Firm has particular experience and knowledge representing clients in connection with the following issues and claims:
- Payment Disputes and Withholding
- CASPA and Other Prompt Payment Statutes
- Default and Termination
- Extra and Additional Work
- Cardinal Change
- Construction Defects
- Sale of Non-Conforming Materials and Equipment
- Defective Specifications
- Design Errors and Omissions
- Bid Protests
- Differing Site Conditions
- Payment and Performance Bonds
- Mechanics’ Liens
- Inefficiency / Loss of Productivity / Acceleration
Contract Forms Tailored to Each Client’s Operations
Generally speaking, the parties involved in a construction project do their work and fulfill their duties based on contracts. Sometimes the contracts are oral (the proverbial handshake), but in most cases the contracts are written.
We prepare contract forms for our clients based on their specific operations, circumstances and needs — and always with the goal of ensuring that their legal rights and remedies are protected. Clients can then use these contract forms for their day-to-day transactions.
For example, a contractor that routinely purchases and installs specially-manufactured equipment should have a purchase order form that not only requires the manufacturer to meet a specific delivery date or time period for delivery, but also addresses the contractor’s rights and remedies against the manufacturer if it fails to adhere to the delivery schedule.
We also tailor contract forms to the level of risk our clients are willing to assume as part of their operations. For example, we frequently advise subcontractor clients to minimize their risk of non-payment by converting a “pay-if-paid” clause in their subcontract to a “pay-when-paid” clause, which considerably reduces the subcontractor’s financial exposure. Contract forms we structure and draft for clients on a regular basis include:
- Owner-Contractor agreements
- Subcontracts (short form, long form and master subcontract agreements)
- Purchase Orders
For complex projects, we structure and draft:
- Design-Build agreements
- Owner-Contractor agreements (on a guaranteed maximum price (GMP) or cost-of-the-work plus fee basis)
- Design Professional agreements
Contract Review and Negotiation
Construction contracts are the mechanism for shifting the risks inherent in a construction project from one party to another. Clients often ask us to review a contract form provided by another party on a specific project. For example, a subcontractor client may ask us to review a subcontract form received from a general contractor on a project and advise on the scope of the risks the subcontractor is being asked to assume in the subcontract.
We provide different levels of contract advice based on the client’s needs and budget. Our services range from a limited review of the high-risk contract provisions, to a comprehensive review of the contract documents and exhibits with recommended revisions to the language and commercial terms.
After our review of a contract and assessment of the risks involved, clients can also engage us to handle the negotiation of the contracts with the other party (and/or its counsel) until mutually acceptable terms are agreed upon and the agreements signed.
Clients often consult the Firm when problems or disputes arise during construction. The sooner we are consulted, the higher the probability that we will be able to resolve the problem favorably and at the least cost. During the construction phase, we assist clients on a regular basis with:
- Payment disputes
- Defective and non-conforming work
- Delays and schedule disputes
- Performance bond claims
- Extra work and productivity claims
- Default and termination issues
Issues and disputes that arise during construction are typically resolved in the following steps:
1. Fact Investigation
To provide the client with the best advice and representation, we first ascertain what has already happened, what is happening now, and what is likely to happen in the short- and long-term future. Our extensive industry experience allows us to quickly focus on the critical facts. For example, if a dispute involves allegations of defective work or project delay, we can call upon a wide network of consultants and experts to conduct a forensic investigation and analysis if needed.
2. Analysis of Legal Rights & Business Considerations
Once the material facts are in hand, we analyze the relevant contract documents and
applicable law to determine the client’s legal and contractual obligations, and rights and remedies that are implicated in the disputed issue. We understand that our clients often have business considerations that must be taken into account, and sometimes prioritized, in our legal analysis. We confer with clients in depth about their desire to preserve their relationships with their customers, protect their own subcontractors or suppliers, preserve their business reputation, and fully understand the cost/benefit of a prolonged legal dispute, among other things. This process enables the client to set realistic achievable goals and make informed and educated decisions going forward.
3. Strategic Positioning & Implementation of Tactics
Once our factual and legal analysis is complete, and we have helped the client formulate and articulate a realistic objective, we strategically devise and then implement tactics to achieve it. We do this by methodically and deliberately taking charge of the narrative through communications (written and oral) and creating a record that positions the client in the best possible light and focuses those involved on the real issues. All of this is done while preserving the client’s legal rights and remedies.
We can accomplish this in one of two ways: either by speaking and advocating on behalf of the client, or by coaching our client privately step-by-step in the background. The choice of which approach is the client’s to make. Often when we assist a client with a problem or dispute during construction, we are coaching and consulting with them on a day-to-day, or even hour-to-hour basis, to control the narrative and strategically create a record that will help the client achieve their desired outcome.
If problems and disputes that arose during construction remain unresolved upon completion of a project, we aggressively prosecute claims on behalf of our clients, and defend clients from any claims asserted against them. We use a combination of the following legal and dispute resolution approaches to achieve our clients’ desired outcomes:
When appropriate, we file mechanics’ liens on behalf of clients to secure payment for work performed on a project. We also defend against and discharge mechanics’ liens for clients—typically owners and general contractors—when a subcontractor files a mechanics’ lien. Mechanics’ liens can be effective tools but time is of the essence — there are short, strict deadlines for filing that vary by state. In Pennsylvania, for example, a lien must be filed within six months following completion of the work.
Payment Bond Claims
On public, and some private projects, the general contractor is required to obtain a payment
bond from a surety to secure the payment obligations to subcontractors and suppliers. We frequently prosecute claims on behalf of subcontractors and suppliers against payment bonds when the GC hasn’t paid them in full for the work performed and material/equipment furnished to a project. We also defend GCs and their sureties against payment bond claims asserted by subcontractors and suppliers.
We have extensive knowledge and experience with the surety laws that apply to our clients’ work and the intricate defenses available to GCs and sureties to payment bond claims.
Mediation is a process whereby a neutral third-party mediator is retained by the parties to a dispute to help facilitate its resolution. Mediation is often confused with arbitration, which is a different type of proceeding that functions more like court — an arbitrator serves as judge and conducts a hearing where evidence is presented by the parties (testimony and documents) and the arbitrator enters a binding award.
Mediation, in contrast, does not involve a hearing, testimony, evidence, or an award for or against any of the parties. Instead, mediation is essentially a formalized negotiation that any party can end at any time for any reason, and no binding decision is made on any of the parties’ claims. The mediator is there to assist the parties in resolving their dispute, and, if a settlement is not achieved, the process ends, and the parties are in the same position they were before the mediation process began. For construction industry disputes, the mediator is usually an attorney who has represented many clients in construction-related disputes and devotes some or his practice to serving as a mediator.
Although mediation is not appropriate for all cases, we have extensive experience using mediation to successfully resolve disputes for clients. With any dispute, we carefully evaluate and consult with clients on the likelihood that mediation can achieve a favorable result. The factors we consider include the status of any pending litigation or arbitration, the dynamics between the parties and their counsel, the strengths and weaknesses of the parties’ positions, and the potential cost savings generated by reaching a quick resolution. When we use mediation, the Firm provides clients with a detailed analysis of the likely range of possible results so they can make informed settlement decisions.
Litigation & Arbitration
From nearly 20 years of litigating cases in court and in arbitration, we have developed a mindset and instincts that enable us to position our clients for success – whether they’re playing offense or defense. We not only draw upon our command and knowledge of the law, but we also persistently take advantage of the opportunities presented by our adversaries’ positions.
Sometimes an early or quick resolution of a dispute is simply not possible for a variety of reasons. We always give frank advice to clients about the necessity of using litigation or arbitration to achieve a favorable result. As part of that process, we counsel our clients about the potential costs involved so they can make informed and reasoned decisions.
If our client is the likely defendant in a dispute, we do our best to anticipate and prepare our legal arguments and defense strategy before the client is sued in court or joined in arbitration. With a proactive approach, we are rarely caught off-guard, and always ready to go on the offensive–even as a defendant.
Firm obtained favorable settlement for concrete subcontractor in dispute with general contractor and owner arising from owner’s allegations that slope of concrete trolley platform violated requirements of Americans with Disabilities Act. GC asserted claim against client’s performance bond, withheld payment from client, and demanded that client remove and reconstruct the platform. Firm commenced litigation against GC and secured a settlement in the case’s early stage consisting of payment to client from the GC without any remedial work performed and release of the GC’s claim against the performance bond.
Firm successfully defended client-general contractor and its payment bond surety in a federal court trial involving a plaintiff-electrical subcontractor seeking to recover the balance of its subcontract and numerous extra work claims from GC. Court found in CG’s favor, rejecting all of the plaintiff’s claims, and awarded GC the full amount of its counterclaim for the costs and expenses client incurred to complete plaintiff’s work after plaintiff’s default. Court also awarded GC attorney’s fees and expenses.
In connection with the construction of a large retail store project, Firm secured arbitration award for client-plumbing subcontractor of its full subcontract balance, interest, penalty, and attorney’s fees under the Contractor and Subcontractor Payment Act against the general contractor. Also prevailed on subcontractor’s claim for increased costs arising from GC’s interference with subcontractor’s planned means and methods during construction of the building’s underground plumbing.
Firm secured award in excess of $1 million for a client-general contractor (GC) against a public school district in a nine-day arbitration administered by the American Arbitration Association. Proceeding involved expert testimony, numerous claims, and complex legal and factual issues arising out of construction delays. Arbitrator’s decision also rejected the school district’s counterclaims.
In a very technical construction defect case pending in the US District Court for the Eastern District of Pennsylvania, Firm achieved a six-figure settlement payment for a defendant-client (site contractor) in a private mediation conducted by the parties after pleadings were closed. The plaintiff-subcontractor furnished and installed a special ductile iron pipe liner for the project and sought a six-figure payment from the client. At the mediation, the Firm persuaded plaintiff-subcontractor, without the use of an expert witness, that plaintiff caused the defect in the pipe liner at issue and was liable to Firm’s client for the damages our client incurred. The settlement reimbursed client for a large portion of the expenses incurred to remediate the defect and saved our significant litigation fees and expenses.
Firm secured a favorable settlement for a contractor-principal in federal court litigation commenced by a surety under a general indemnity agreement. The surety sought to recover over $5 million in claimed losses it paid under the agreement.
Firm obtained monetary judgment against both a corporation and its sole shareholder in his individual capacity in a breach of contract action in which client sought payment for emergency services it performed. Litigation successfully in pierced the corporate veil to hold the individual shareholder personally liable for the debt of the corporate defendant, and also secured an award of attorney’s fees, penalties and interest against the shareholder.
Firm achieved favorable result in bid protest filed with the Army Corps of Engineers in connection with a federal construction project — client secured the contract for the project.
Firm won a case of first impression involving Pennsylvania’s Right-to-Know law with ramifications that will affect the construction in connection with public construction projects in Pennsylvania. We successfully argued that all records relating to the construction of public schools are public records subject to public scrutiny, including all email communications between the school district, architect, contractors, construction manager, etc. The case was covered by several newspapers and was the subject of commentary by other Pennsylvania law firms and industry publications.
Firm obtained significant discovery sanction on behalf of a plaintiff-mechanical contractor against a real estate developer in state court litigation. The lawsuit eventually led to a settlement paying the client in full for the amount due under contract, plus a portion of the attorney’s fees incurred. As a sanction for discovery abuses, the court deemed as admitted all of the allegations in the client’s complaint relating to piercing the corporate veil of the defendant’s various business entities.