Construction Blog | Construction & Public Contract Law Section

This blog discusses information on issues important to attorneys engaged in construction or public contracting law. Topics include changes in the statutes, appellate and Supreme Court decisions, insurance law, practice tips and pointers, procedural issues, evidentiary issues, and jury trials. Published by the State Bar of Wisconsin's Construction & Public Contract Law Section.

This section encourages communication among attorneys with interests in construction and public contract law. The section also monitors and proposes legislation and sponsors CLE programs at State Bar conventions. As a special project, the section drafted the State Bar Construction Lien Forms.

Members of the State Bar of Wisconsin may join the section by visiting https://www.wisbar.org/formembers/groups/pages/join-a-group.aspx (login required).

Section website: https://www.wisbar.org/formembers/groups/sections/ConstructionandPublicContractLawSection/pages/home.aspx

On Feb. 4, 2022, President Biden issued Executive Order 140631 requiring the use of “project labor agreements” (PLAs) on large-scale federal construction projects, effective immediately.
Executive Order Terms
Pursuant to the Order, federal agencies, when awarding any contract in connection with a “large-scale” federal construction project or obligating funds to such project, must require that each contractor or subcontractor engaged in construction on the project agree to negotiate or become a party to a PLA with one or
Continue Reading Biden Mandates Project Labor Agreements on Large-Scale Federal Construction Projects


With the current lack of supply in the housing market, condominium building is experiencing significant growth. In the event a developer proceeds forward with a condominium project, all parties, from prime contractors to material suppliers, should be aware that condominiums are a different animal from other projects when it comes to lien rights. First: Does the Condominium Exist? The first issue counsel for a potential condominium lien holder should address is whether a condominium exists. A contractor or
Continue Reading Condominium Liens are a Different Animal

In handling public contract construction disputes, lawyers must pay attention to detail, have patience, and often use a two-front dispute resolution process.It also entails a thorough knowledge of the context’s expansive regulatory framework, especially since several factors are likely implicated, including the:

  • increased risk of inconsistent terms in subcontracts;
  • public owner’s different incentives and practices;
  • impact on insurance coverage triggers;
  • unique role of design; and
  • timing and sovereign immunity aspects.

Contractors who perform construction work for public entities (particularly
Continue Reading Five Key Issues for Lawyers Handling Public Construction Disputes

On Sept. 9, President Joe Biden announced his administration’s “Path Out of the Pandemic: COVID-19 Action Plan.” Among the Action Plan’s several prongs are two sets of requirements that could significantly impact numerous Wisconsin construction contractors. The first requires the Occupational Safety and Health Administration (OSHA) to promulgate COVID-19 rules covering employers with 100 or more employees, which it did on Nov. 4. The second requires federal contractors working on certain contracts to require full vaccination of
Continue Reading Federal COVID-19 Regulations Impacting Wisconsin Construction Firms

The coronavirus pandemic has wreaked havoc on the construction industry.

It has greatly reduced productivity, caused material prices to skyrocket, and slowed the supply chain. This has impacted nearly all contractors – builders and suppliers – who are forced to allocate or absorb the increased costs.1 They also face performance deadlines that are rendered unrealistic and, in some cases, impossible to meet.

Until the pandemic’s effects are greatly alleviated, supply chains will likely remain ambivalent and unpredictable.

This
Continue Reading Supply Chain Delay Claims: A Day Late and $1,000 Short

Whether you are an upstream party ​who is dissatisfied with a downstream party’s progress (or lack thereof) and want to throw the bums off the job, or a contractor who hasn’t been paid and figure you can work for free anywhere – before you make your next move, ask yourself: Do I feel lucky?

If the answer is ‘yes,’ you aren’t likely to read the rest of this article. But if you do, hopefully you’ll change your tune about
Continue Reading Risks of Terminating a Construction Contract: Upstream and Downstream Perspectives

Technology has made drones less expensive and more powerful. Thus, they are more prevalent today, as both a pastime and a key component of some businesses, including those in the construction context.

Federal, state, and local units of government license and regulate Unmanned Aircraft System (UAS) use, and violations can be subject to state and federal civil and criminal penalties.

In Wisconsin, a drone – technically known as an Unmanned Aircraft System or UAS – is generally defined as
Continue Reading Sky is the Limit for Drone Use in Construction

During the COVID-19 pandemic, construction material prices rose substantially and, in some cases, skyrocketed to record high levels.1

Lumber prices reached historic highs in May 2021, with futures prices rising from $423 per thousand board feet as of Jan. 8, 2020, to a $1,607 per thousand board feet on May 10, 2021.2

Although lumber prices have started to fall, prices are still nearly double January 2020 prices. The rise in lumber prices has largely been attributed to
Continue Reading Construction Material Price Increases: Options for Contractual Risk Shifting

A contractor driving piles runs into limestone when the drawings and specifications indicated sand and gravel. The contract calls for an “equitable adjustment” when faced with such a differing site condition, but how is the adjustment determined?

Under Wisconsin law, a hierarchy of methods exist to answer this question. If a contractor does not follow this hierarchy, its claim for an adjustment may be rejected by the owner and ultimately a court as a matter of law.

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Continue Reading Calculating an Equitable Adjustment in Wisconsin for a Differing Site Condition

The hard lesson for contractors in a recent case:1

Do not sign a partial lien waiver for partial payment unless the lien waiver document specifically and expressly limits the waiver to apply to a particular portion of such labor, services, materials, plans, or specifications.

A subcontractor signed a “partial” lien waiver with the prime contractor to get paid $33,000 by the prime, without specifically and expressly limiting the waiver to apply to a particular portion of the $220,000
Continue Reading The Pitfalls of Partial Construction Lien Waivers

The City of Madison’s bird-safe glass ordinance may fly in the face of the state of Wisconsin’s Uniform Commercial Building Code (Uniform Code).

With the goal of streamlining building regulations and keeping costs reasonable without affecting safety or quality, legislation supported by Democrats and Republicans established a Uniform Code in Wisconsin,1 and designates the Wisconsin Department of Safety and Professional Services as the state agency to promulgate and adopt the Uniform Code via the administrative rules process.2
Continue Reading For the Birds, Literally: Madison’s New Construction Ordinance

Wisconsin is currently experiencing a significant shift to renewable energy (RE) for its electricity usage.

Thoughtful regulatory and statutory changes are needed to ensure the full potential of this moment is realized for Wisconsin businesses and residents – not to mention our homegrown contractors whose job trailers we’d prefer to see on these sites.

Warming Up to the Idea

Wisconsin lags the rest of the U.S. in terms of RE electricity production.

In 2019, our statewide RE mix was
Continue Reading Wisconsin is Warming Up to the Idea of Renewable Energy

Small-scale residential construction projects, such as single-family home builds, additions, and remodels, pose unique challenges for Wisconsin attorneys who draft construction contracts.

Wisconsin law protects Wisconsin homeowners from being taken advantage of by contractors, by imposing special requirements on contractors who perform residential home improvement work. Contractors can comply with most of Wisconsin’s technical obligations by drafting robust contracts.

In addition, residential construction projects involve different issues and complications than those that arise on larger commercial construction projects. On
Continue Reading Building a Better Residential Construction Contract

In Part 1, we discussed copyright basics and architectural plans as one asset that could be protected by copyright. See Construction and Copyright, Part 1: Don’t Forget about IP.Here in Part 2, we discuss additional practical copyright considerations, including that designs and architectural works aren’t the only copyrightable material to come out of the construction process.

Photos and Videos

Many construction companies want to promote their business using “before and after” or progress photographs of their work. If
Continue Reading Construction and Copyright, Part 2: Practical Considerations

Construction projects, by their very nature, operate in the world of tangible property.Quite obviously, tradespersons use machinery and tools to fit building materials together to construct physical buildings.

With material goods acting as both the figurative and literal foundation of the industry, construction companies, and by extension, their construction contracts, could easily focus solely on the tangible elements of each project.

Bryan T. Kroes, Marquette 2013, is a senior associate with Hurtado Zimmerman SC, Wauwautosa, where he
Continue Reading Construction and Copyright, Part 1: Don’t Forget about Intellectual Property

Indemnity clauses are common in commercial contracts.

Typically, one party (the indemnitor) agrees to “indemnify, defend, and hold harmless” another party (the indemnitee) from any and all claims or losses, or perhaps certain defined ones.

In the construction context, such a provision may, for example, provide indemnity protection to an owner for any claims, losses, or damages – including attorneys’ fees – arising out of a contractor’s work.1 At its base level, such language protects owners from exposure
Continue Reading Indemnity on Offense