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

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By: Construction & Public Contract Law Section | State Bar of Wisconsin​

Blog Authors

Lauren A. Triebenbach
Saul C. Glazer
David C. McCormack
Roy E. Wagner
Sean Frye
Eric J. Meier
John J. Schulze
Steven J. Slawinski
Scott J. Thomsen
Andrea L. Murdock
Brendan M. Bush
James M. Dash
Nathan M. Jurowski
Kevin M. Long
Matthew R. McClean
Brian R. Smigelski
James S. Thiel
Bryan T. Kroes
Tyler T. Manley
Patrick Whiting
Brian Zimmerman

Latest from Construction Blog | Construction & Public Contract Law Section

Workers at the construction site
Architects and investors meeting at the construction site, on top of the residential building under construction.

As the construction industry continues to evolve, it becomes increasingly important for construction companies to safeguard themselves against potential risks and liabilities. One crucial aspect of risk management is ensuring that downstream contractors and suppliers have adequate insurance coverage.

This article outlines steps construction companies should take to ensure proper insurance coverage for their downstream partners and discusses the significance of certificates of insurance, the limitations they pose, and the importance of various policy endorsements.
About Certificates of Insurance…
Continue Reading Ensuring Adequate Insurance Coverage for Downstream Contractors and Suppliers

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Nothing is more important to the construction industry than rock. Whether sand, gravel, crushed stone or blocks of stone, rock is used in everything from road building and concrete to countless building products, including drywall, insulation and glass. Rock is heavy and used in enormous quantities, so there is an obvious efficiency in locating sources close to consumers. Doing so means reduced haul distances, cleaner air, less heavy truck congestion, lower cost to consumers and that the money…
Continue Reading Myth and the Permitting of Aggregate Mines

Most construction work is done pursuant to a set of plans and specifications issued by the architect that tells the contractor what they are to construct and the owner what they are receiving in exchange for the contract price. That is, the plans and specifications for a construction project describe the contractor’s scope of work.

But when work (especially in particularly in large and complex projects) does not conform to the plans and specifications, the parties involved need to…
Continue Reading When Construction Projects Don’t Go According to Plans

Specific language in construction contracts often determines the outcome of construction litigation, affecting a contractor’s overall liability and ultimately, their bottom line. Like other states, Wisconsin prohibits many types of clauses within construction contracts. However, Wisconsin has not completely limited indemnification clauses. Wisconsin’s statutory prohibitions can be confusing to those who are unfamiliar with Wisconsin construction law, including new or small construction businesses or businesses from other states performing occasional work within Wisconsin. Section 779.135 Two main statutes for…
Continue Reading 101: Clauses Prohibited in Construction Contracts

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In a recent decision, the Wisconsin Supreme Court diminished the statutory mandate that any waiver document waives all present and future construction lien rights, unless “specifically and expressly” limited to a “particular portion” of the “labor, services, materials, plans, or specifications.” In
Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc.,1 a handwritten insertion of the word “Partial” in the title, and a specific dollar amount that conflicts with unambiguous printed waiver terms, may now preserve all…
Continue Reading More Pitfalls of Partial Construction Lien Waivers

​​The National Football League continues to grow in popularity and the economics are staggering. For 2021-22, the Green Bay Packers reported a record $570 million in revenue. Part of the NFL’s growth is due to playing games abroad. This year, the Packers will travel to London to play the New York Giants.

Much like the NFL’s model, many contractors have found growth opportunities in “abroad” (out-of-state) markets. Just as the Packers must adjust their internal clocks to account for…
Continue Reading Don’t Forget Your Sunblock and Contract Clauses When Your Client Goes Outside Wisconsin for Their Next Project

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

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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

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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

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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

Contract breach and break. Terminate of contract. Rip of paper document. Cancel and torn of agreement for law. Termination deal in business. Failure in partnership. Icon of disagree in work. Vector

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.

com brs…
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