Major public projects typically
pose significant and complex technical
and project management challenges for
design and construction management
professionals that require substantial
skill and experience in order to successfully
achieve project objectives and programs.
These projects also pose relatively
high degrees of professional liability
risk exposure and prudently necessitate
appropriate contractual risk allocation
provisions, and effective risk management
practices to anticipate and limit
such exposure.
A Differing Site Condition Claim is not Necessarily Synonymous with a Defective Design Claim
By David H. Corkum, Esq.
In April 2003, the United States
Court of Federal Claims issued a ruling
on a motion for summary judgment that
is helpful in clarifying the distinction the
law makes between a differing site condition
claim and a closely related defective
design claim. These two claims, while
often treated as simply alternative theories
of recovery for the same set of operative
facts, are easily distinguishable by a
reviewing court. Contractors and Owners
would be well advised to be mindful
of these distinguishing features so that
an otherwise viable claim or defense is
not inadvertently forfeited.
Attorney Client Privilege & Work Product Immunity in the Context of Public Relations
It is not uncommon for lawyers to hire public
relations (“PR”) consultants when dealing with a high
profile case. Lawyers often need advice on how to effectively
deal with the media in high profile matters.
For example, lawyers may need to know if they should
provide the press with information regarding the case
and the implications that come with providing or not
providing such information. Lawyers may also engage
PR consultants “to advise on matters such as
whether the state of public opinion in a community
makes a change of venue desirable, whether jurors
from particular backgrounds are likely to be disposed
favorably to the client, and how a client should behave
while testifying in order to impress the jurors favorably
and other matters...” In Re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y.
June 2, 2003).
The Doctrine of Sovereign Immunity Will Not Insulate a Municipality from Its Breaches of Implied Covenants
By David H. Corkum, Esq.
In a prior issue of this Reporter, the case of
Kiska-Kajima v. the Washington Metropolitan Area
Transit Authority was discussed wherein the Transit
Authority successfully invoked the doctrine of sovereign
immunity to defend its intentional withholding of information
from bidders. An important limitation on the
breadth of the sovereign immunity doctrine is illustrated
in the case of Champagne-Webber, Inc. and Miles
Anderson Contracting, Inc. v. the City of Ft. Lauderdale,
a Municipal Corporation, 519 So.2nd 696 (1988). In this
case, the contractor appealed a lower court’s grant of
summary judgment that had resulted in the dismissal of
the contractor’s action based on a overly broad application
of the doctrine of sovereign immunity.
The Use of Imprecise Terminology on Boring Logs Will Not Increase A Contractor’s Burden of Investigation Prior to Bidding
By David H. Corkum, Esq.
The Armed Services Board of Contract Appeals
recently decided a case that calls attention to the importance
of using precise terminology when describing conditions
at a site. The Appeal of Kilgallon Construction
Company, Inc., ASBCA No. 52582 and No. 52583 resolved
a dispute over an alleged differing site condition
and provided some insight into a contractor’s obligation
with respect to prebid site investigations.
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