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  • "This team is very strong on the legal side, and has a thorough understanding of construction law." - Chambers USA

Construction & Infrastructure

The McCarter & English Construction and Infrastructure Practice Group represents public and private owners, developers, architects and engineers, construction managers, contractors, subcontractors and suppliers in matters ranging from project planning to dispute resolution, on projects involving a wide range of industries and government functions.

Our depth of talent and breadth of legal and practical experience offers a unique set of advantages to our clients:

We Know the Business. Every member of our team brings in-depth knowledge of the special characteristics of the construction industry. Many of our lawyers have worked in the field. We know the relationships, traditions, risk allocations and other business and legal issues unique to the industry that can mean the difference between success and failure. We know the territory, and we speak the language.

We Know the Law. Construction law is a specialized field, and no client wants to pay for his lawyer to climb the learning curve. Our lawyers are not dabblers: they dedicate their practices to construction law. As we come to every engagement already aware of the rules governing our clients’ issues, we can turn quickly to identifying the rights and obligations that protect their interests.

We Follow a Practical, Problem-Solving Approach. Our goal is to use legal tools to achieve business solutions. We track developments in the industry and strive to keep ahead of the curve in identifying opportunities and exposures. We recognize the value of the prompt and the practical.

We Deliver Fast and Flexible Responses to New Issues. Construction projects are time sensitive – clients do not have the luxury of delayed answers to pressing questions. Our depth and breadth of legal and practical experience allows us to identify the need and bring the correct resources to bear immediately. Most of the time, we have seen the issue before.

We Use the Latest Technology. Our sophisticated litigation support, document management and presentation technology systems quickly and reliably exchange information with our clients’ systems, and assist in presenting arguments and issues persuasively in any forum. 

Project Finance & Delivery

We work seamlessly with the Firm’s Real Estate, Corporate and Public Finance Groups to counsel owners and developers on the terms of financial arrangements. We also provide counsel on the related issue of project delivery. Selecting a project delivery method that is a poor fit for a given project means enhanced risk of a late or over-budget project. A project with an enhanced risk profile will have a difficult time securing financing. Our lawyers understand the nuances of various project delivery methods and can help with the selection of an appropriate delivery method. We also know what contractual safeguards should be in the construction and design agreements when a particular delivery method has been selected. In fact, our lender clients rely on us to review the terms of prospective design and construction agreements to ensure that owner/borrower risk has been reasonably mitigated. Project success and loan repayment are imperiled when an owner/borrower takes on too much risk.

Contract Drafting & Negotiation

We draft and negotiate all forms of agreements for design services, construction and construction management. We employ our electronic license to generate customized American Institute of Architects form agreements, and skillfully handle other industry-standard forms including those generated by ConsensusDocs, the EJCDC and the Design/Build Institute of America. We have experience with public and private projects, know the issues specific to both kinds of projects, and have a deep understanding of the commercial concerns that motivate owners, design professionals and contractors and those that are important to any negotiation. We recognize the risk in a one-sided agreement and the value in a fair contract, and we strive to prevent disputes by intelligently and fairly allocating the risks in a deal.

We have prepared contracts for projects exceeding $100 million and have ample experience with more modest projects. We are experienced in preparing agreements for design professionals, design/build projects, construction manager at risk/GMP projects, general contractor and subcontractors, facilities management agreements, and turnkey agreements. We also assist in broader project documentation programs, helping clients implement systems that control risk, schedules and costs while maintaining high-quality information systems for management.

Green Building

In recent years, as the construction industry as a whole has embraced sustainability and green building concepts, our construction attorneys have kept abreast of industry developments. By combining this Green Building knowledge with their in-depth understanding of construction law and industry practices, our attorneys are able to draft and negotiate design and construction contracts that accurately and fairly reflect the Green Building obligations of each party; assist clients with Green Building problems that arise during construction or in connection with Leadership in Energy and Environmental Design  (LEED) Certification; and address claims that develop out of the Green Building process.

Bid Protests

McCarter & English represents private parties and governmental awarding authorities in bid protests and related litigation. One of our construction attorneys is a former Massachusetts assistant attorney general who was responsible for enforcing construction and design bidding laws. For federal project protests, we turn to our Government Contracts Group attorneys for their in-depth knowledge of federal procurement law and experience with handling bid protests before federal agencies, the U.S. Government Accountability Office and the U.S. Court of Federal Claims. In short, our attorneys are familiar with state and federal bidding policies and procedures and the highly technical requirements of government contract law. We are frequently relied on to analyze complex issues under the emergent time pressure of bid opening and award. Should administrative or in-court litigation result, we represent parties in all legal forums, often in short-notice hearings involving injunctive relief. 

Project Counsel/Contract Administration

We regularly guide clients through the entire building process, advising on contract administration problems and procedures including change orders, additional services, events of default and, where necessary, termination. Clients value having within their project teams, someone who has prior experience in dealing with the business, technical and legal concerns affecting the project.

Performance & Payment Issues

Construction is a risky business and sometimes, despite every good intention, contractors run into difficulty paying their subcontractors and suppliers or completing their contract work. Similarly, design professionals sometimes cannot fulfill their contracts. Owners, too, occasionally experience financial troubles and cannot pay for work performed. When that happens, it is vital that the non-breaching party act quickly to try to protect its interests and secure the faithful performance of obligations by the other party. Our construction lawyers know the laws governing contractor and subcontractor rights to payment, including those governing liens and surety bond claims. Likewise, we are well versed in ways an owner can protect against a non-performing designer or contractor. We often advise on technical termination rights and pursue performance bond claims, including negotiating and drafting takeover agreements.

Distressed Project Intervention

The Construction and Infrastructure Practice Group, often working with our Bankruptcy and Creditors’ Rights Group, can provide a coordinated resource for parties involved in troubled construction projects. A troubled project is one in which a key participant – such as the owner or contractor – is unable or unwilling to continue its contract obligations due to insolvency, bankruptcy or another financial reason, causing a material default. Such a default can jeopardize or doom a construction project to fail, leaving the remaining parties to sort out their conflicting rights and liabilities.

When a key project participant cannot or will not perform, but has yet to file for bankruptcy, our attorneys can assist in analyzing and developing strategies for completing the project.

Our advice may involve:

  • Termination
  • Assumption or rejection of subcontracts
  • Taking possession of materials and equipment on site
  • Liens and lien claims
  • Retainage/contract balances
  • Sureties and lenders including negotiating workouts and enforcing bond and loan documents
  • Securing the work site

In the event that a key participant files a petition in bankruptcy, our attorneys can assist with:

  • Stay relief, including enforcing or defending mechanics’ liens 
  • Claims against payment and performance bonds 
  • Trust fund litigation including enforcing construction trust fund statutes in bankruptcy to secure payment for subcontractors and suppliers 
  • Enforcing and litigating competing priorities for unpaid contract balances and retainage 
  • Preference litigation 
  • Executory contracts, including negotiating the assumption or rejection of construction contracts by a trustee or debtor-in-possession as “executory contracts” under the Bankruptcy Code 
  • Lien avoidance and setoff 
  • Enforcement of arbitration provisions, including removing dispute resolution from the Bankruptcy Court

Construction Claims & Disputes

We handle every kind of construction dispute for our owner and contractor clients. Accustomed to the subtleties of the industry and possessing a wealth of technical expertise, we achieve business goals for clients in such areas as:

  • Delay, acceleration and disruption claims 
  • Contract and specification scope disputes 
  • Construction cost accounting 
  • Subsurface and other changed conditions claims 
  • Defective and non-conforming work

Mediation & ADR

Our attorneys are skilled in the use of Alternative Dispute Resolution (ADR) to achieve creative, quick and cost-effective outcomes. We have successfully developed ADR processes for specific clients. Our adeptness with ADR techniques is vital in helping clients achieve the best litigation outcomes while also serving their business interests.

Surety Claims & Relations

One of the most misunderstood relationships in the law is the tri-party relationship among a contractor, its surety and the owner. The rights and duties of surety, primary obligor and obligee are governed by arcane, highly technical common law, as well as increasingly complex bond language. Our attorneys know the world of surety and have worked within it for years. We appreciate the risks held by the surety and the contractor including the business relationship and underwriting decisions that drive them.

Structural Failure & Collapse

Perhaps the worst nightmare of any owner, contractor or designer is the structural failure or collapse of a building, structure or crane. The aftermath of a collapse involves state, local and federal regulatory agencies and sometimes criminal investigations. In addition, insurers find policies invoked, and third parties often have substantial claims for damage to adjoining property. Attorneys in the Construction and Infrastructure Practice Group have handled numerous cases involving this type of disaster. Our knowledge of the industry and relationships across the design and construction community allow us to provide clients with accurate, informed advice on how to manage the legal and public sides of a catastrophic event.

Defective Design & Construction

We have arbitrated and litigated defective design and construction matters arising from virtually any type of structure or infrastructure imaginable, including academic, commercial and public buildings, energy and industrial facilities, and bridges and roads. Because our lawyers have extensive experience with design and construction, we can quickly grasp the technical issues involved and make the right decisions on which internal and external resources to apply. Clients can waste many months and dollars while their lawyers learn their way around a project and come to grips with the technical reasons for failure. We have achieved successful results many times over due to our singular combination of technical acumen and legal experience.

Insurance Coverage Issues

Insurance issues are present from the very beginning of projects. For example, language in a construction or design agreement can require things that insurers don’t or won’t provide, or can be so broad as to negate coverage. This situation serves neither contracting party, each of which benefits from having the appropriate and optimal insurance policy in effect. Our construction lawyers know from experience where the problems lie within contract documents. We also pursue insurance claims at the time of an incident to compel insurers to honor their defense and indemnity coverage obligations. We are familiar with judicial decisions interpreting policies and contracts and the way those decisions may affect any given situation. In addition, we have a renowned Insurance Coverage Practice Group, lawyers focused exclusively on interpreting policy terms and with whom the Construction and Infrastructure Practice Group regularly partners on technical questions of insurance law.

Speaking

03/16/16
Professional Development Day - an International Society of Pharmaceutical Engineers New Jersey Chapter
12/02/15
Construction of the Third Lane of Panama Canal
Columbia Law School
03/27/15
Deep Surgery: Contemplating Complex Issues in Construction Contracts
American College of Real Estate Lawyers
11/05/14
2014 Securities Litigation and Regulatory Update
Pennsylvania Bar Institute’s CLE Conference Center