Construction and Surety Law

Practice Area

Owners, contractors, design professionals, and sureties rely upon Harris Beach for practical and effective representation aimed at minimizing the impact of construction project disputes. We protect our clients’ interests beginning with the bidding and contracting phases, through financing, zoning, permitting and contract administration, to help keep their projects moving forward to their successful completion. Our attorneys have a reputation for ardent and effective prosecution and defense of indemnification claims, liens, and bond claims for a large cross-section of public and private sector clients engaged in all areas of the construction industry. Over the past 15 years, we have been involved in billions of dollars of public and private construction projects.

Solid, well-crafted agreements are the foundation for successful construction projects. In the process of negotiating construction contracts on behalf of our clients, we pay close attention to important contractual provisions including scope of work, time of performance, basic duties, warranties, change orders and extras, hold-harmless and indemnification clauses, payment terms, retainage and project closeout. We are also familiar with the various triggering events implicated under the default and termination provisions of construction contracts. This includes contractual rights of termination for cause and convenience, notice requirements, various elements of contractor default, contractor defenses, waiver and estoppel, nonpayment issues, strict adherence to contractual termination procedures, architect and engineer default, rescission and wrongful termination.  We work closely with our clients on all these issues during the construction process itself, often avoiding negative impact on the project’s progress.

Harris Beach also handles a broad spectrum of surety matters, including default terminations, construction claims, contract bond defaults, bad faith claims, and performance and payment bond disputes. Our attorneys have extensive experience negotiating completion agreements, takeover agreements and other construction/surety matters.

Our Construction Law services include:

Our Surety Law services include:

Construction Law

Contracts

We work as a team with owners and developers throughout all phases of a construction project, including drafting and negotiating construction documents and agreements with project architects, construction managers, and contractors. Our attorneys are highly experienced in negotiating the American Institute of Architects (AIA) family of contract documents. This experience is invaluable in helping to resolve construction problems and disputes as they arise.

Harris Beach attorneys advise our clients how to maximize contractual value and avoid disputes when engaging the services of architects, engineers and construction managers. We understand the importance of insulating our clients from unwarranted litigation. Accordingly, we style our construction agreements in such a fashion as to protect the owner by insuring appropriate indemnification and contribution language in all contracts for professional services.

When warranted, however, we have also litigated numerous matters for our clients arising from disputes with architects, engineers, construction managers and general contractors. With regard to architects and engineers, this includes liability for poor design, faulty testing, inaccurate cost estimates, lack of supervision and inspection, lack of scheduling and coordination, inappropriate certifying of progress payments and other disputes. For general contractors and/or construction managers, this similarly includes liability for faulty construction, inaccurate, failures of cost estimates, supervision and inspection, lack of proper scheduling and defective coordination, and certification of progress payments.

Bidding

Harris Beach attorneys have significant experience dealing with public bidding issues under the State Finance Law and the General Municipal Law. This includes lowest responsible bidder determinations, project labor agreements, and compliance with bid documents. Our services related to bid document compliance include prequalification of bidders, prevailing wage rate and Wicks Law issues, accepting and awarding bids, illegal bids and contracts, bid withdrawal, exceptions to bidding rules, challenges to bid awards, and obtaining relief from bid mistakes. We advise clients on these crucial pre-constructions issues to help them understand their options and risks. We also help our clients maximize opportunities in New York state through practical and insightful counsel on Minority and Women-Owned Business Enterprises (MWBE) procurements, supplier diversity initiatives, and compliance.

Construction-Related Labor Issues

Harris Beach has represented owners in a wide range of labor and employment disputes as they relate to construction projects. Our labor and employment law practice group has earned a solid reputation for working collaboratively with our construction law practice group in representing both public and private sector employers in all aspects of labor and union-related matters arising from construction projects across New York state. We provide construction labor services for our clients including counseling in all matters concerning project labor agreements, prevailing wage issues, Department of Labor investigations, strikes, boycotts, picketing and labor disturbances and attendant disruptions at the work site. We also represent clients in workers compensation matters arising from construction accidents, owner’s liability under Labor Law Sections 240 and 241 and matters involving OSHA issues, charges and hearings.

Change Orders

As construction projects rarely proceed through completion precisely as planned, we frequently advise our clients on matters related to changed conditions and change orders. Some examples include matters involving subsurface conditions, latent above-ground conditions, contractual “changed condition” clauses, disclaimers and exculpatory clauses. In addition, we review with the owner’s architects, engineers, and consultants the origins of change orders to determine financial responsibility. We effectively advise our clients concerning scope of work issues, the cardinal change doctrine, deduct changes, the issuance of change orders, oral versus written change orders, the contractor’s duty to proceed with disputed work, the contractor’s duty to seek clarifications, defective specifications, performance specifications, rules of contract interpretation applicable to scope of work disputes, notice, protest, and recordkeeping requirements. We also advise our clients on methods for pricing change order work, including pricing change related costs, unit prices, cost reimbursement contracts, and impact costs.

Alternate Dispute Resolution (ADR)

Business disputes can take a considerable financial toll on an organization and significantly delay or disrupt projects. Our attorneys are committed to managing costs and minimizing disruption on our clients’ behalf by working with them to determine the best avenue to help achieve their objectives. While court litigation may continue to be unavoidable (or even preferable) in many instances, for some disputes, ADR methods such as mediation or arbitration may offer an effective option to traditional litigation. We are skilled mediators and arbitrators who know when and how to pursue ADR procedures and forums to best protect our clients’ project interests.

Contractor Claims and Litigation

Harris Beach attorneys have vast experience representing our clients in all kinds of claims including handling substantial extra work and delay claims. We counsel clients in determining delay, scheduling procedures/progress schedules, delay and disruption clauses in contracts, excusable delay, acts of God, force majeure, strikes and labor disputes. We pay particularly close attention to statutory and contractual notice requirements as a pre-condition for pursuing a claim in mediation, arbitration and/or litigation.

We have a broad array of experience in other matters that result in delay claims and litigation. These include extra work, changed conditions, active interference, willful gross negligence, fraud or bad faith, apportionment of responsibility for delay, contractor’s “claimed” damages for delay (i.e., labor and material escalation, loss of productivity, field and office overhead, idle equipment, and procurement, impact, and financing costs). We frequently counsel our clients on “no damages for delay” clauses in contractor agreements, and issues arising from the owner’s damages for delay, including actual damages, loss of use, interest and liquidated damages. Specifically, we represent our clients in enforcing the contractual rights of public owners to obtain the project objectives free from defective workmanship or other default situations created by contractors or subcontractors, or to obtain compensation for those defaults.

We counsel our public sector clients in defects and failure in construction, including design defects, construction defects, faulty or improper materials, improper installation, and warranty clauses including implied and express warranties. We have similarly extensive experience with public improvement liens and litigation resulting from lien foreclosure actions. Specifically, we have frequently counseled our clients on the appropriate owner’s rights in the face of liens or the necessary legal response thereto, in order to avoid monetary loss.

Construction Financing

Harris Beach attorneys work closely with clients on all aspects of their business finances and legal planning. We are a nationally recognized bond counsel firm serving most New York state issuers and more than 27 industrial development agencies throughout the state. We also serve as counsel to underwriters, borrowers, and entities providing credit enhancement and/or liquidity on all types of public finance transactions. We represent large public sector owners including municipalities, pubic authorities, hospitals, state colleges and universities, and school districts.

Our attorneys handle transactions involving FHA-insured mortgage revenue bonds, letter of credit secured financings, bond insured financings and unrated issues. We handle projects financed through a number of state agencies, projects financed through local industrial development agencies and housing authorities, and a variety of projects that are 63-20 financings.

For more information, please see the description of services for Public Finance and Economic Development.

Surety Law

Surety and Fidelity Law

For over 30 years, Harris Beach has worked with sureties in investigating and defending claims as well as in pursuing principals and indemnitors. Our attorneys also represent sureties on coverage issues and are well versed on surety defense.

Surety Bond Claims

We have particular expertise in counseling our sureties and both public and private owners in all aspects of performance and payment bond claims and litigation. We are effective in securing coverage under performance bonds which guarantee the owner that its contractors will fully and faithfully perform their project work. Our representation of surety clients gives us a unique perspective and familiarity with those claims that helps ensure success for the owner. We frequently counsel our owner clients in making and litigating claims under performance bonds, for cost of completion, liquidated and delay damages, incidental and consequential damages, attorneys’ fees, punitive damages and interest.  We review all required payment bonds to prevent subcontractors and suppliers from being unpaid by contractors on the job. 

Harris Beach takes a very practical approach to surety bond claims. On countless occasions we have saved our clients significant defense costs by working out a swift and fair resolution to claims. In those instances where such a resolution cannot be accomplished, we have had great success through motion practice and litigation.

Ancillary Services

HB Cornerstone

Harris Beach recognizes that client solutions often involve more than just legal needs. Consequently, we offer a unique, comprehensive approach to meeting our clients’ pressing legal and non-legal challenges through our professional consulting affiliate HB Cornerstone LLC. HB Cornerstone’s depth of experience in owner representation, design, and facilities management provides a complete solution for firm clients seeking to build, expand, or move.

Our owner representation services provide clients with a single point of contact for all project matters, a single consistent source for all project communications, and a project advocate dedicated to completing their projects on schedule and on budget. We approach each initiative with the owner’s perspective. By only representing the owner, we are not restricted or conflicted by the other construction roles, tasks, and responsibilities. This ensures the client’s best interest and the best interests of their projects are represented.