I represent a number of highway/heavy contractors, all of whom know that doing business with the North Carolina Department of Transportation (“NCDOT” or the “Department”) requires careful attention to the agency’s “Standard Specifications for Roads and Structures.” NCDOT’s Standard Specs contain both front-end “General Requirements” (what would be called “General Conditions” on virtually any other public or private construction contract) and back-end standards for all aspects of highway work — from earthwork, pipe culverts, subgrade and asphalt pavements to signing, materials, pavement markings and electronic signalization.As my highway/heavy clients also know, the NCDOT’s Standard Specs are regularly revised every 4-6 years. Last year, NCDOT issued the 2012 version of its highway construction bible, updating the 2006 version. This post focuses on what I consider to be the ten most significant changes to NCDOT’s front-end “General Requirements.” As you will see below, these ten revisions affect how contractors obtain, perform and make claims on NCDOT work.
Tag Archives: retainage
A new year is upon us, with decidedly tempered expectations for the national construction industry. Indeed, a poll of ENR Southeast readers does not disclose much optimism for significantly increased construction activity in the region.
All the more reason to be as vigilant as ever in the coming year. Here are a few suggested resolutions to assist you in navigating the choppy waters that may await in 2012:
(1) Do not to treat partial lien waivers lightly. There are potentially very real consequences in representing that payment in full, less retainage, has been received through a certain date — particularly if at the time the representation is made, claims for extra work or delay damage exist.
(2) Before you sign, read each line. Construction contracts are risk allocations that courts and arbitrators are loath to alter once executed. You need to understand how the participant above you in the contractual chain is seeking to allocate risk before you sign and mobilize.
(3) Beware the subcontract buyout process. If a subcontractor’s price appears too good to be true, it probably is. And the potential legal headaches on the back-end are likely not worth it. In other words, qualifications matter.
(4) Report claims that may be covered by an insurance policy in a timely manner. When things go bump in the night, you don’t want to be left holding the bag when your carrier argues that it was prejudiced by a late notice of claim.
(5) Tread very carefully before terminating someone for cause. The law abhors a forfeiture, and courts and arbitrators are likely to ensure that each and every contractual condition precedent to termination has been satisfied before concluding that a termination was proper.
I resolve to making N.C. Construction Law, Policy & News a vital and timely resource for a growing audience of construction industry participants and their counsel here in the Old North State. I’m still on the blawging learning curve, but the foundation has been laid, and I expect to come “out of the ground” strong in 2012.
Until my next post, Happy New Year!