The Fidelity and Surety Law 2021 Virtual Midwinter Conference: Construction Lawyer as Disaster Artist [CC]

Day 1 - Wednesday, February 3, 2021:

Welcome and Introduction from Program Chairs (5mins)

Bid Errors (30 mins)
Perhaps an estimator’s worst fear is the disaster of a blown bid on a hard-bid, lump sum project, leading to massive problems throughout the job. This panel will discuss what bid errors are waivable, and what can be done about those that are not, along with a discussion of the impact on bid bonds and the penal sum.

Matthew Holmes, Ernstrome & Dreste LLP

Construction Pricing Disasters – Renewed Focus on Price Escalation (30 mins)
Contractors and sureties always must remain attuned to supply-chain or labor issues that may impact price and completion of projects; the pandemic certainly has heightened these concerns. Price increases on key items can cause disasters that ripple through a project, so the allocation of such risks is a key consideration. This panel will discuss how the law generally allocates the risk of price increases, and how the parties may shift or share that allocation through escalation clauses. The panel also will discuss various issues that may arise in pricing escalation claims from the perspective of a claims and damages expert.

Adam Tuckman, Watt, Tieder, Hoffar & Fitzgerald, LLP

Laura A. Miller, CPA, CFE, CCA, Director of The Rhodes Group

Overcoming Schedule Disasters – Panel Discussion (50 mins)
Owners, Contractors, and Sureties all have an interest in the timely completion of construction projects, and each will have a role in preventing and overcoming schedule disasters. This panel will review disasters in construction scheduling from these varied perspectives, including disastrous scheduling documents, excusable and compensable delays, acceleration, concurrent delays, and other key issues. The panel also will provide legal and practical insights from their own experiences negotiating or litigating schedule disputes.

Patrick Lee-O’Halloran, TTLO Law

Mark Gentry, HKA

Scott Lowe, Trauner Consulting Services, Inc.

Mark Nagata, Trauner Consulting Services, Inc.

10 minutes Q&A for all sessions

Final Concluding remarks by Program Chair (5 minutes)

Day 2 – Thursday, February 4, 2021

Welcome and Introduction by co-chairs (5 minutes)

Bad Contract Documentation (35 mins)
Whether coming to light in a pandemic or any typical failed project, bad contract documents often saddle the contract surety with unforeseen hurdles, obligations and costs. This panel examines failed bonded projects, looking outward from the underlying contract documents, and provides an interesting and thought-provoking presentation on what has often, but unfairly, been labeled a boring topic – the dreaded analysis of contracts.

Drew Gentsch, Whitfield & Eddy, P.L.C.

After Narula: Mitigating Surety Liability (35 mins)
This panel presents a case study that dives into the false claims act. In doing so, the panel educates the surety professional on potential but dangerous pitfalls to a contract surety when an otherwise innocuous bonded contractor tries to do an end around to get awarded a contract designated a set-aside for Services-Disabled Veteran Owned Businesses (SDVOB’s) only. The panel presents useful lessons on how to avoid liability under the False Claims Act.

James Breckenridge, Levy Craig Law Firm

Shane Mecham, Levy Craig Law Firm

Taking the Sting Out of Bankruptcy: Practical Scenarios Faced by the Contract Surety (40 mins)
Sureties are becoming too familiar with bankruptcies, both by large accounts with a number of ongoing bonded projects and on a smaller scale, but potentially just as impactful, by subcontractors in the middle of performance. To the contract surety, these scenarios certainly cause an initial sting, but there are tactical decisions the surety may make to keep a project going towards completion or avoid large bond losses. The panel will discuss these and other tactical decisions which certainly will prove useful to the surety professional.

Alana Porrazzo, Jennings Haug Cunningham

10 minutes Q&A for all sessions

Final Concluding remarks by the co-chairs (5 minutes)