CONSTRUCTION: DESCRIPTION

McKenna Long & Aldridge LLP began its practice in construction law over 40 years ago. Notable early construction representation involved the Eisenhower Locks on the St. Lawrence Seaway, the City of San Diego Padres Ballpark Development Project, the Panama Canal Bridge at Balboa, the Rayburn House Office Building and Robert F. Kennedy Stadium in Washington, DC. In the years since, the firm has developed a strong and diverse practice focusing on every area of construction and government contract.

Today, the firm maintains its focus on public works projects and provides services for commercial construction projects as well. Notable examples are the San Diego Convention Center, the Tijuana Wastewater Outflow Tunnel Project, and the Los Angeles Hyperion Wastewater Treatment Plant.

McKenna Long & Aldridge lawyers have experience in subway and surface transportation, power generation, dams, pipelines, sewerage treatment, airports, military facilities, commercial buildings, industrial plants and housing projects. Related practice departments at the firm assist clients with infrastructure development and finance, labor, employment, environmental and regulatory compliance and investigations.

The firm counsels many segments of the construction industry, including contractors and subcontractors, state and local governments, private owners and developers, engineers and architects, financial institutions and suppliers. We also counsel many contractors involved in decontamination and decommissioning and toxic waste cleanup projects. The lawyers at McKenna Long & Aldridge are leaders in their profession and they understand the context of construction contracts. This includes our detailed understanding of engineering and scheduling disciplines.

Types of Projects

We assist clients on a wide range of public and private construction, from federal public works and military projects, state and local public facilities to commercial projects. Having lawyers with a background of service to the construction industry enables MLA to provide effective solutions to client needs.

Typical of this work are:

• Airports and supporting communications systems
• Commercial buildings, plants and shopping centers
• Environmental remediation
• Housing developments
• International infrastructure
• Military facilities, missile towers, aircraft support and housing
• Power plants and pipelines
• Public buildings, post offices, embassies and offices
• Subway, light rail and other mass transportation projects, related tunnel and road construction
• Water and sewerage treatment facilities

SPECIFICS OF OUR PRACTICE

Counseling

Our construction practice lawyers work with clients to prepare contracts, special clauses and agreements and to advise on matters involving bidding, performance, cost allowability and recovery and regulatory issues, including employment and environmental requirements. We offer timely assistance on contract and regulatory matters critical to project and business success. We view our job as solving clients' problems.

Examples of legal services include:

• Drafting contracts and special clauses for clients working on federal, state and local procurements and commercial projects
• Review of federal and state solicitations to assure legally compliant and responsive bids and proposals
• Interpretation of contract requirements, FAR regulations and clauses
• Identification, pricing and negotiation of change orders
• Counseling on issues relating to performance, past performance, payment and warranties
• Advice regarding subcontractor rights and obligations, flowdown clauses and pass-through claims
• Responses to government audits
• Advice about labor, employment, environmental, socioeconomic and other special laws and regulations

Claims

The firm recognizes the importance of litigation avoidance. Thus, we emphasize early consultation and contract risk analysis. We also know the value of well-founded and properly documented claims. Working with clients we have developed procedures for early detection and support of claims to provide for cost-effective resolution, generally without litigation. McKenna Long & Aldridge lawyers routinely work with clients and consultants to prepare and manage claims.

Representative claim matters are:

• Guidance for early claims identification, investigation and support, particularly delay, disruption, acceleration, differing site conditions and extra work
• Organization and preparation of claims
• Analysis of claim entitlement issues involving notice, contract compliance, federal certifications and dispute procedures
• Analysis of cost recovery and damages issues
• Review and defense of owner and contractor claims
• Working with consultants on delay, cost and technical matters to support claims

Litigation

When litigation is necessary, McKenna Long & Aldridge has lawyers in each region with extensive experience in litigating and arbitrating construction disputes . In addition to litigation of complex construction claims, contract performance and termination issues, the firm handles cases based on allegations of defective and negligent design and defective products supplied to construction projects. In related areas, the firm appears in court in actions under the Freedom of Information Act , the Miller Act and state bond statutes. The firm also supports the use of alternative dispute resolution and has participated in many such proceedings, both on government claims and disputes between private parties.

Our capabilities include:

• Litigation of contract disputes before the boards of contract appeals, the United States Court of Federal Claims and other federal and state courts
• Bid protests (or protest of awards or solicitation defects) before state courts, the United States Court of Federal Claims and the General Accounting Office
• Arbitration of complex construction claims
• Payment and performance bond litigation
• Litigation of alleged construction defects and warranties
• International arbitration and disputes tribunals

CONSTRUCTION-RELATED PRACTICES

Construction-Related Practice

Today's construction clients require timely, sophisticated assistance in a variety of related areas. MLA serves the construction industry in business areas involving labor and employment, project financing, defective work and allegations of illegal activity.

Labor and Employment

MLA's labor and employment law practice group serves the construction industry in all types of matters that arise out of the employer-employee relationship. This includes advising both public and private employers about workplace conditions. The firm offers training on preventive practices to avoid and minimize employee claims through sound human resource practices. Our lawyers handle litigation involving wrongful discharge claims, discrimination and sexual harassment matters in federal and state courts and before administrative agencies. The labor and employment practice group advises unionized employers about collective bargaining, arbitration, strikes, secondary boycotts, contract administration and trust fund suits and advises non-union employers who are faced with union organizational activity.

Financing

MLA lawyers have experience with government build-lease projects for military housing and construction, energy facilities, waste treatment and warehouse projects. We have served owners, developers, operators and lending institutions in connection with equity and debt financing documents, financial service and credit support agreements. Our lawyers have been retained to assist in the negotiation and drafting of capital structure and ownership documents as well as contracts for the development, engineering, construction and operation of facilities, including build-own-operate and build-own-transfer arrangements; power sale/ purchase agreements; revenue sharing agreements; operation, maintenance and technical services agreements and other ancillary documentation.

Defective Design and Construction

The firm has handled claims and litigation of disputes over allegations of defective design and construction in commercial and residential structures. Examples include defective materials, inadequate shear walls and seismic resistance; inadequate foundation design and construction; defective concrete formulation, rebar placement and corrosion and post-tension slab flaws; pipelines, soil subsidence and movement; grading and compaction problems and water intrusion.

Procurement Fraud

McKenna Long & Aldridge has extensive nationwide experience with civil and criminal investigations of suspected statutory violations and fraud by companies and individuals. We have assisted construction contractors in criminal investigation of alleged bribery, kickbacks and violations of public procurement integrity laws. Our lawyers also defend civil actions brought by the government alleging violation of procurement statutes and regulations and actions brought by whistle blowers under the False Claims Act. We also conduct internal investigations to assess a company's potential exposure and we provide advice as to the appropriate response to subpoenas and government requests for cooperation.

For more information on our Construction practice, please contact Peter Ippolito.