Construction Law

The Construction Law Group at Fox Swibel has extensive experience evaluating and litigating complex, highly technical construction disputes arising out of construction and design defect; project delay; acceleration; loss of productivity / efficiency; out-of-scope work; excessive changes/ cumulative impact; differing site conditions; mechanics liens; breach of contract; failure to pay / withholding of payments; code violations; fraud; negligence; breach of express and implied warranties.

Construction and Design Defect Claims
The Construction Law Group is known for handling claims arising out of alleged construction and design defects on all types of projects around the country.  The Group has handled defect claims arising out of architectural, structural, electrical, mechanical, geotechnical, and other issues in the building, infrastructure, industrial, medical, and transportation industries.  As we regularly handle significant defect claims throughout the U.S., we have created an extensive network of highly qualified consultants and experts in a wide range of technical specialties in the construction and design industry who we regularly consult with and retain in connection with our clients’ claims.

Project Delay Claims
The Group also has substantial experience investigating, evaluating, litigating, and settling claims for construction and design delays, on behalf of both plaintiffs and defendants.  The Group is well-versed in all issues related to the successful management of delay claims, including:

• CPM schedules and scheduling methodology
• Identification of excusable vs. non-excusable delays
• Assessing concurrent delays vs. critical delays and the impact of each on the client’s claim or defense
• Understanding which party owns the float and how this affects the posture of the claim
• Acceleration, including evaluation of when it is necessary and when it is compensable
• Claims for disruption and loss of productivity / efficiency
• Identification of force majeure events and evaluation of how same affect the schedule and potential claims for compensation
• Cumulative impact claims

We have relationships with nationally renowned delay and cost forensics experts with whom we regularly work to prosecute and defend claims arising out of delays to the project schedule.

Dispute Resolution Strategy
Our strategy for claim resolution focuses on early identification and assessment, which allows for development of a resolution strategy that is most cost-efficient for our clients.  This principle applies regardless of whether our client will be prosecuting a potential claim or defending against one.  In either case, when a potential claim arises, we work with our clients to investigate the claim, and we involve third-party experts as necessary to assist in claim evaluation.

As part of our strategy of cost-efficient dispute resolution, we regularly assist our clients with informal claim negotiations, including preparation of materials to support their settlement efforts.  Where more formal negotiations are required, we assist our clients in navigating and participating in the mediation process. When claims cannot be settled, we have significant experience successfully litigating (in both state and federal courts around the country, as well as arbitration) complex construction disputes through trial.

Insurance Recovery
The Group has substantial experience representing our clients in actions against first and third party carriers to obtain coverage for construction and design defect claims. We assist our clients in identifying applicable coverages, managing the claims process, and if necessary, litigating insurance claims in both state and federal court. Our efforts have secured millions of dollars of coverage for our policyholder clients, often from third party carriers at no cost to the client.

Fox Swibel’s Construction Law Group has prepared contracts for construction projects across the United States totaling over $1 billion in construction costs.  Critical to the Group’s successful transactional practice is its extensive experience managing and resolving claims arising out of troubled projects.  This experience gives the Group the unique perspective necessary to identify the actual risks in a construction deal and to focus each negotiation on the provisions most critical to our client’s management of those risks.

Contract Drafting
The Group is well-versed in and has extensive experience drafting and negotiating all types of agreements and forms for any size construction project, including:

• Construction contracts
• General conditions
• Construction manager agreements (both at risk and not at risk)
• Design-build agreements
• Preconstruction services agreements
• Engineering, procurement, and construction (EPC) agreements
• Architectural, engineering, and other professional services agreements
• Owner’s representative, development manager, and project manager agreements
• Subcontractor and subconsultant agreements
• Furniture, fixtures and equipment (FF&E) agreements
• Joint venture agreements

The Group routinely drafts all ancillary forms associated with these agreements, including lien waivers, change order forms, construction change directive forms, schedules of values, letters of intent, notices to proceed, guarantees and warranties, among others.

Risk Management
Risk management is a critical feature and guiding principal of our transactional strategy, regardless of the client, and it takes many forms.

Risk Management in Drafting
Our Group understands the many different types of risks faced by different clients and the families of contract provisions relevant to mitigation of these risks.  We have substantial experience drafting and negotiating these provisions, and we understand the pressure points on all sides of a deal.  This experience allows us to negotiate contracts and insurance packages that best meet our clients’ needs.

Insurance Consultation
Effective risk management requires a clear understanding of the insurance programs that owners, contractors, and design professionals use to protect themselves and each other, as well as the key contract provisions that relate to these insurance programs and how these provisions relate to one another.  We consult with our clients and provide guidance on these and other insurance-related issues that are most critical to the client’s risk mitigation goals.

In addition to managing risk through the contract itself, the Group has extensive knowledge of insurance coverage strategies for construction projects of various sizes and scope.  As part of the Group’s transactional practice, we regularly draft detailed insurance requirements to be appended to construction contracts and professional services agreements for all types of coverages, including OCIPs, CCIPs, project specific coverages, and subcontractor default insurance.

Project Controls
Once the agreements are executed, our risk management services continue in the form of project controls.  We provide project control services to ensure that the favorable protections negotiated and included in the contracts are applied in the field to the client’s benefit.  When requested, we prepare summary materials and provide training to the project team so that the team understands how the contract is structured in terms of schedule, budget, and the claims processes that must be followed.

We act as general counsel to our construction industry clients by offering Fox Swibel’s comprehensive “big-law” boutique services from talented, experienced practitioners in complementary areas such as real estate, tax, employment law, banking and corporate finance.  Fox Swibel’s full service capabilities allow us to address the full range of our construction clients’ needs, whether they arise out of issues in the field or at the office.

We have a focus in sustainable construction and in the renewable energy markets.  Group Chair, Daniel Dorfman, is one of only a few construction attorneys in the country who has achieved the designation from the U.S. Green Building Council of being an accredited LEED Green Associate.  This background provides the Group with particular expertise in claims and transactions arising out of renewable energy projects, including contracts for green construction and compliance with green building codes.