From the earliest stages of project development, we give advice and guidance to commercial developers, colleges and universities, public authorities, and other owners regarding modern project delivery systems, including such advanced concepts as integrated product delivery, and other innovative solutions that best serve the project goals. As part of this process, we help to formulate and define the legal relationships and responsibilities between stakeholders to best promote project efficiencies and prevent costly changes and disputes as the construction proceeds. These services include:

• Advice and counsel on the selection of delivery method for capital projects, such as fixed-price Design-Bid-Build, Design Build, Engineering Procurement and Construction (EPC), Construction Management at Risk, Multi-Prime, and Integrated Project Delivery (IPD).
• Negotiation and structuring of “front end bidding documents” to achieve better pricing and better results.
• Advice regarding the selection of an Owner’s Project Manager (OPM), defining the role of the OPM for any given project, and negotiating an appropriate contract with the OPM.
• Negotiation and administration of contract documents, whether standard form documents such as AIA Contract Documents and ConsensusDocs or manuscript documents such as engineering, procurement, and construction (EPC) contracts.

At the procurement stage, we do more than just draft and negotiate contracts for owners, construction managers, general contractors, and their subs. We advise on procedures for vetting documents, structures to minimize uncertainties and future disputes, means to effectively manage risk, and other aspects of the transaction that require the specialized knowledge of professionals versed in both the building industry and the law.

Our construction attorneys regularly draft and negotiate the following contracts on behalf of our clients:

• Owner and design professional contracts, such as the AIA B101-2017 Owner and Architect Agreement as well as design professional standard form contracts.
• Owner and contractor construction contracts, including fixed-price design-bid-build contracts, construction manager at risk contracts, construction management as an advisor contracts, design build contracts, cost plus contracts, and cost plus contracts with a guaranteed maximum price (GMP). We regularly negotiate AIA Owner/Contractor Contract Documents including the AIA A101-2017 (Stipulated Sum), AIA A102-2017 (GMP), AIA A133-2009 (CM with GMP), and AIA A201 (General Conditions). For our clients who consistently enter into construction contracts, such as public and quasi-public entities, developers, schools and universities, we prepare customized forms of contracts that suit our client’s internal practices, procedures, and preferences.
• Contractor and subcontractor construction contracts. We work with our general contractor clients to develop a standard form of subcontract, purchase order, and other contract documents with lower-tier contractors. We assist our subcontractor and supplier clients to negotiate their contracts. We work with mechanical, plumbing, steel fabrication, specialty coating, and other specialty subcontractors and suppliers on their contract forms and processes.
• Collaborative construction contracts, such as teaming agreements, joint venture agreements, design build, and integrated project delivery agreements.

In preparing and negotiating these construction contracts, we counsel our clients to consider provisions to manage and plan for risk including as appropriate the following clauses: indemnity, liability insurance, property and builder’s risk insurance, additional insured requirements, waiver of consequential damages, liquidated damages, no damages for delay, pay if paid, pay when paid, payment bond, performance bond, joint check, audit, cost of work, and other similar provisions. We employ a specialized approach for each client on each project to ensure a fair and reasonable methods are in place to reduce the anticipated risks and that predictable process is established to avoid disputes and additional delay resulting from unanticipated risks.

Our construction lawyers work collaboratively with our client’s risk managers, in-house counsel, and insurance agents to ensure the proper insurance is in place for the project. We provide guidance on insurance requirements in owner contracts with design professionals and contractors including the following forms of insurance: commercial general liability (CGL) insurance, excess and umbrella CGL insurance, additional insured endorsements, worker’s compensation, pollution insurance, professional liability insurance, owner controlled insurance programs (OCIPs), contractor controlled insurance programs (CCIPs), cyber insurance, and builder’s risk insurance. We alert our clients to the limitations of the insurance policies and available endorsements that may provide more expansive coverage.

We counsel our owner and general contractor clients on whether to require performance and payment bonds with their lower tier contractors. We also provide guidance regarding subguard default insurance (SDI) and other mechanisms to plan for subcontractor default.

During the project, we provide real-time advice and guidance on issues as they arise, whether they concern unforeseen conditions, project changes, contractual relationships between project stakeholders, labor and employment issues, or actions by government regulators. We offer training for client personnel on how to manage the unexpected and how to respond so as to avoid, resolve, or minimize potential claims before they become costly or threaten project schedules.

Even after delivery, we continue to assist clients – such as owners, construction managers, trade contractors, suppliers, sureties, architects, or engineers – regarding the issues and claims that may arise with respect to project completion.

On public projects, we assist contractors with the enforcement of Miller Act and Little Miller Act disputes, assertion of payment bond claims, making demands for direct payment, and other regulatory processes available. 

With respect to private works projects, our attorneys advise clients regarding the mechanic’s lien, prompt payment, anti-indemnity, retainage limitation, licensing, and other statutes and regulations unique to the construction industry.  We guide our clients through the project close-out phase on issues such as auditing rights and final accounting process for guaranteed maximum price (GMP) contracts, warranty claims, defective work, mechanic’s lien waivers, and release of retainage.

Increasingly, clients are concerned about the time and expense needed to bring a case to final resolution through trial and appeal. More and more, parties turn to alternative dispute resolution as a way to resolve their cases more quickly and efficiently. Pierce Atwood offers an unsurpassed level of expertise and service in arbitration, mediation, and other forms of alternative dispute resolution.

Click here for more information on our Arbitration & Mediation practice. 

Should the need for litigation arise, we are tenacious litigators with extensive experience preparing, prosecuting, and defending complex construction claims. Construction cases are often factually intensive and involve highly technical issues. We understand these challenges and work to ensure that cost-effective, winning strategies are implemented for our clients. Our attorneys are licensed and experienced in both state and federal courts throughout New England.

Our construction group includes attorneys who also serve in the firm’s Energy Infrastructure practice group. Our construction attorneys can help draft and negotiate Engineering, Procurement, and Construction (EPC) contracts for energy infrastructure projects, assist with risk management and dispute avoidance during project performance, and represent our energy industry clients in disputes. 

Pierce Atwood is one of a select few firms that offers a full suite of services to the energy infrastructure industry including services related to project development, finance, regulatory, and mergers & acquisitions.

Our energy attorneys are at the cutting edge of the growing and increasingly complex industry of renewable energy technologies and storage, including assisting our clients to structure net metering, SMART program, value-based distributed energy, community solar, synthetic power purchases, storage solutions, solar tax credits, and other distributed energy agreements.

Click here to learn more about our Energy Infrastructure Project Development & Finance practice.

Pierce Atwood’s construction lawyers work closely with our colleagues in our Environmental, Real Estate, and Land Use practices to assist owners, developers, and contractors with a variety of issues that can arise on a construction project, including:

• Property Acquisition and Environmental Planning: We assist with initial project planning beginning with initial identification of the issues and formulation of a permitting team and strategy, through agency negotiations and public administrative hearings, and, if necessary, in administrative and judicial appeals. In addition, our environmental attorneys have developed a program to conduct environmental audits that will help clients develop compliant environmental practices and procedures.
• Permitting – Federal, State & Local: Our firm regularly represents businesses with air and wastewater discharge permitting. In addition, we are experienced with permitting of projects under state and federal air, water, natural resource, wetland, land use, and hazardous waste statutes.
• Environmental Litigation & Administrative Appeals: Our owner and construction clients face complicated regulatory oversight involving permits and other environmental issues. Our environmental attorneys have the experience to assist clients through the permitting and appeal process to improve the odds of success in obtaining the permit. In the event a hazardous waste or other environmental enforcement action is brought against our clients, we have the team in place to represent and defend our clients in those proceedings.
• Project Development and Zoning: Our real estate and land use attorneys assist clients with project development and compliance with zoning codes, and appear before local planning boards to address such issues on behalf of our clients.

Construction companies, and their officers, may encounter government investigations and enforcement actions brought by federal, state, and local agencies. Potential proceedings include assertions and investigations of false claims, bribery, accounting fraud, corruption, antitrust and competition, money laundering, disadvantaged owned business enterprise (DBE) fraud, intellectual property crime, and other similar issues. Additional compliance risks are present for our clients who perform work internationally.

Our construction lawyers work with the firm’s team of attorneys who are experienced at protecting our clients’ interests during every phase of corporate compliance, from designing and updating compliance systems, to risk assessments, to internal investigations, through resolution, litigation, and follow-on consequences.

Click here to learn more about our Government Investigations & Compliance practice.

We represent our construction clients on a wide range of labor law issues. Our attorneys have experience with wage classification enforcement actions, project labor agreements (both drafting and contesting), ERISA litigation, and other union-related proceedings for our unionized clients.

Pierce Atwood’s employment, labor, and ERISA attorneys regularly assist companies in the construction industry with these issues including matters involving employment discrimination, executive compensation and benefits, FLSA and State Wage/Hour claims, HR compliance, workplace investigations, and traditional labor advising.

Click here to learn more about our Employment and Employee Benefits & Executive Compensation practices.

Based in coastal cities throughout New England, our construction industry clients that perform work involving navigable waters face the jurisdiction and law of admiralty and maritime. Pierce Atwood’s Maritime attorneys help our clients navigate the complex patchwork of federal, state and local laws governing activities along the shore and at the sea.

Click here to learn more about our Maritime practice.

Our leadership in alternative dispute resolution is such that we regularly serve as mediators, arbitrators, referees, and special masters for large industrial, commercial, and public project construction disputes throughout the United States.

Federal, state, and municipal public projects have their own unique challenges, and we advise owners and bidders regarding all aspects of such projects. Whether the questions concern qualifications for public bidding, the bid package or process, bid challenges, project labor agreements, regulatory compliance, or challenges to state or local laws and ordinances, we have the knowledge and experience to guide our clients efficiently through these complex and often daunting administrative and legal processes.