Construction and Engineering
The Construction practice at McKenna Long & Aldridge (MLA) began more than 40 years ago. Notable early construction representation involved the Eisenhower Locks on the St. Lawrence Seaway, the City of San Diego Padres Ballpark Development Project, the Panama Canal Bridge at Balboa, and the Rayburn House Office Building and Robert F. Kennedy Stadium in Washington, DC. In the years since, the firm has developed a strong and diverse practice focusing on every area of construction and government contracts.
Today, MLA maintains its focus on all facets of federal and state public works projects, and provides services for commercial and private works construction projects as well. MLA attorneys have experience in subway and surface transportation, power generation, dams, pipelines, sewerage treatment, airports, military facilities, commercial buildings, industrial plants and housing projects. Notable examples are the San Diego Convention Center, the Los Angeles Hyperion Wastewater Treatment Plant, and the Twin Oaks Valley Water Treatment Plant.
Related practice departments at the firm assist clients with infrastructure development and finance, labor, employment, environmental and regulatory compliance and investigations.
We counsel many segments of the construction industry, including contractors and subcontractors, state and local governments, private owners and developers, engineers and architects, and financial institutions and suppliers. We also work with contractors involved in decontamination and decommissioning and toxic waste cleanup projects. We are leaders in our profession and understand the context of construction contracts, including our detailed understanding of engineering and scheduling disciplines.
Types of Projects
We assist clients on a wide range of public and private construction, from federal public works and military projects, state and local public facilities, to commercial projects. Having attorneys with a background of service to the construction industry enables MLA to provide effective solutions to meet client needs.
Typical projects include:
- Airports and supporting communications systems
- Commercial buildings, plants and shopping centers
- Environmental remediation
- Housing developments
- International infrastructure
- Military facilities, missile towers, aircraft support and housing
- Power plants, canals and pipelines
- Public buildings, post offices, embassies and offices
- Subway, light rail and other mass transportation projects, related tunnel and road construction
- Water and sewerage treatment facilities
SPECIFICS OF OUR PRACTICE
Counseling
Our construction practice attorneys work with clients to prepare contracts, special clauses and agreements, and advise on matters involving bidding, performance, cost allowability and recovery and regulatory issues, including employment and environmental requirements. We offer timely assistance on contract and regulatory matters critical to project and business success. We view our job as solving clients' problems.
Examples of these types of legal services include:
- Drafting contracts and special clauses for clients working on federal, state and local procurements and commercial projects;
- Review of federal and state solicitations to assure legally compliant and responsive bids and proposals;
- Interpretation of contract requirements, FAR regulations and clauses;
- Identification, pricing and negotiation of change orders;
- Counseling on issues relating to performance, past performance, payment and warranties;
- Advice regarding subcontractor rights and obligations, flowdown clauses and pass-through claims;
- Responses to government audits; and
- Advice about labor, employment, environmental, socioeconomic and other special laws and regulations.
Claims
The firm recognizes the importance of litigation avoidance, and we routinely work with clients and consultants to prepare and manage claims. Thus, we emphasize early consultation and contract risk analysis. We know the value of well-founded and properly documented claims, and have developed procedures for early detection and support of claims to provide for cost-effective resolution, generally without litigation.
MLA Representative claim matters include:
- Guidance for early claims identification, investigation and support, particularly delay, disruption, acceleration, differing site conditions and extra work;
- Organization and preparation of claims;
- Analysis of claim entitlement issues involving notice, contract compliance, federal certifications and dispute procedures;
- Analysis of cost recovery and damages issues;
- Review and defense of owner and contractor claims; and
- Working with consultants on delay, cost and technical matters to support claims.
Litigation
When litigation is necessary, MLA’s Construction attorneys have extensive experience in litigating and arbitrating complex construction claims and disputes, including contract performance and termination issues, delay claims, differing site conditions claims, Miller Act claims, payment and performance bond claims, mechanic’s lien and stop notice claims, claims of defective and/or negligent design, and claims brought under state and federal False Claims Acts. We also support the use of alternative dispute resolution and participate in many such proceedings, both on government claims and disputes between private parties.
Our capabilities include:
- Litigation of contract disputes before the boards of contract appeals, the U.S. Court of Federal Claims, and other federal and state courts;
- Bid protests (or protest of awards or solicitation defects) before state courts, the U.S. Court of Federal Claims and the General Accounting Office;
- Arbitration of complex construction claims;
- Payment and performance bond litigation;
- Litigation of alleged construction defects and warranties; and
- International arbitration and disputes tribunals.
MLA’s representative litigation matters include:
- Defeated public agency’s claims for $100 Million against client, a tunneling contractor, after an eight-week federal jury trial in Sacramento on claims of breach of contract, fraud, and false claims relating to the construction of a two-mile long water tunnel, and obtained verdict for client in excess of $6 Million and post-verdict order for over $3 Million in attorneys’ fees and costs;
- Obtained dismissal of false claims and fraud allegations against a public works contractor on a differing site condition and corresponding delay/disruption claim against a public agency;
- Defended a general contractor against a multi-million dollar differing site condition claim by a subcontractor on a major public works dewatering project;
- Successfully represented a public agency against a breach of contract and delay/disruption claim brought by its general contractor;
- Obtained for general contract an arbitration award in full amount of extra work claim (in excess of $1 Million) arising from highway project against California Department of Transportation.
- Litigated Miller Act claims against numerous prime contractors and subcontractors arising from projects throughout the U.S., including California and Hawaii;
- Successfully represented numerous prime contractors on bid protests arising from public contract procurements throughout California;
- Successfully represented general contractors and subcontractors relating to penalties and assessments imposed by the California Division of Labor Standards Enforcement; and
- Successfully represented both contractors and owners on disputes involving high-end residential projects.
CONSTRUCTION-RELATED PRACTICES
Today's construction clients require timely, sophisticated assistance in a variety of related areas including:
Labor and Employment
MLA's Labor and Employment law practice group serves the construction industry in all types of matters that arise out of the employer-employee relationship, including advising both public and private employers about workplace conditions. We offer training on preventive practices to avoid and minimize employee claims through sound human resource practices. Our attorneys handle litigation involving wrongful discharge claims, discrimination and sexual harassment matters in federal and state courts and before administrative agencies. We also advise unionized employers about collective bargaining, arbitration, strikes, secondary boycotts, contract administration and trust fund suits, and advises non-union employers who are faced with union organizational activity.
Financing
We have experience with government build-lease projects for military housing and construction, energy facilities, waste treatment and warehouse projects; and working with owners, developers, operators and lending institutions in connection with equity and debt financing documents, financial service and credit support agreements. Our attorneys have been retained to assist in the negotiation and drafting of capital structure and ownership documents, as well as contracts for the development, engineering, construction and operation of facilities, including build-own-operate and build-own-transfer arrangements; power sale/ purchase agreements; revenue sharing agreements; operation, maintenance and technical services agreements and other ancillary documentation.
Defective Design and Construction
The firm has handled claims and litigation of disputes over allegations of defective design and construction in commercial and residential structures. Examples include defective materials, inadequate shear walls and seismic resistance; inadequate foundation design and construction; defective concrete formulation, rebar placement and corrosion, and post-tension slab flaws; pipelines, soil subsidence and movement; grading and compaction problems; and water intrusion.
Procurement Fraud
MLA has extensive nationwide experience with civil and criminal investigations of suspected statutory violations and fraud by companies and individuals. We have assisted construction contractors in criminal investigation of alleged bribery, kickbacks and violations of public procurement integrity laws. Our attorneys also defend civil actions brought by the government alleging violation of procurement statutes and regulations, and actions brought by whistle blowers under the False Claims Act. We also conduct internal investigations to assess a company's potential exposure, and we provide advice as to the appropriate response to subpoenas and government requests for cooperation.