Update. The winds of change? Does the Supreme Court s Allison Engine Remand Signal an Attempt to Reign in the Scope of the False Claims Act?

Transcription

1 Update Construction Law SUMMER 2008 The winds of change? Does the Supreme Court s Allison Engine Remand Signal an Attempt to Reign in the Scope of the False Claims Act? By Sarah M. Graves, Esq. In the last edition of the Construction Update, we reported on the Sixth Circuit s controversial decision in United States ex rel. Sanders v. Allison Engine Co., 471 F.3d 610 (6th Cir. 2006), which held that a subcontractor on a government contract could be liable under False Claims Act ( FCA ), even if its pay applications were not presented to the Government. On June 9, 2008, the Supreme Court held that the Sixth Circuit had relied on an incorrect interpretation of key provisions of the False Claim Act and vacated and remanded the case. Allison Engine Co. v. United States ex rel. Sanders, No , 2008 WL (S. Ct. June 9, 2008). This may represent a welcome attempt to clarify the scope of subsections (a)(2) and (a) (3) of the FCA which were the subject of a controversial circuit split between the Sixth and D.C. Circuits. At the heart of its ruling, the Court recognized the need for clarification of what a plaintiff asserting a claim under these provisions must show regarding the relationship between the making of a false record or statement and the payment or approval...by the government. Id. at *3. Specifically, the Court acknowledged the circuit split created by the D.C. Circuit s decision in United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488 (D.C. Cir. 2004) and the Sixth Circuit s decision in Allison Engine. In its decision, the Court criticized the Sixth Circuit s decision with respect to, among other things, the intent element of (a)(2) and the presentment element (or lack thereof) in both (a)(2) and (3). The Court noted that the Sixth Circuit s interpretation of (a)(2) impermissibly deviat[ed] from the statute s language. Id. at *5. The Court opined that getting a false or fraudulent claim paid...by the Government is not the same as getting paid for such a claim by government funds. Id. As such, the Court held that elimination of the (a)(2) intent element would improperly expand the scope of the FCA by providing for almost boundless liability for the submission of false of fraudulent claims subsequently paid with pass-through government funds regardless of whether the defendant intend[ed] that the Government itself pay the claim. Id. The Court also clarified the question of whether (a)(2) contains a presentment requirement. While it recognized that Congress s omission of presentment language from (a)(2) must be taken as 1 ADVERTISEMENT purposeful and intentional, it also expressly required a causal link between the false claim and the payment in order for FCA liability to attach. As the Court explained, the making of a false or fraudulent claim to a private entity without intending that the government rely on the statement should not subject the maker to FCA liability. In such a situation, the direct link between the false statement and the Government s decision to pay or approve a false claim is too attenuated to establish liability. Id. at *6. As to (a)(3), the Court held that FCA liability will not attach in the conspiracy context unless it is shown that the conspirators intended to defraud the Continued on page 2 I N S I D E Federal Contractors Ordered to Electronically Verify Employee Immigration Status... 2 Upcoming Events... 2 Electronic Discovery in Construction Litigation... 3 Court of Federal Claims Grants Labor Inefficiency Claim for Cumulative Impact of Changes... 4 Los Angeles Mandates Green Construction... 5 Coal Isn t Cash... 7

2 The Winds of Change Continued from page 1 While actual presentment of the false claim may not be necessary, there must still be evidence that the conspirators agreed that the false record or statement would have a material effect on the Government s decision to pay the false or fraudulent claim. Id. at *7. With the confusion that followed the Sixth Circuit s decision, and the corresponding circuit split, the Court s decision provides much needed clarification of the permissible scope of the FCA a welcome offering for any federal subcontractor. Sarah M. Graves is an Associate in Akerman Senterfitt s Tysons Corner, Virginia, office. She is a member of the firm s Construction and Government Contracts Groups. If you have questions about this article or topic, please contact her at sarah.graves@ akerman.com. UPCOMING EVENTS Akerman Senterfitt Will Be a Proud Exhibitor at the Construction SuperConference December Palace Hotel San Francisco, CA Booth #109 Stop by and see us! Federal Contractors Ordered to Electronically Verify Employee Immigration Status By Hal J. Perloff On June 9, 2008, the Bush Administration released an executive order requiring federal contractors to participate in the Department of Homeland Security s E-Verify system for confirming the immigration status of their workers. Under the order, federal contractors will be required to check the E-Verify system both when they hire a new employee as well as when they start work on a federal government contract. The order requires contractors to agree to participate in, and check, the E-Verify system as a condition to award of future government contracts. Implementation of this order will involve an amendment to the Federal Acquisition Regulation that will go through a public comment period and could take several months. A proposed rule implementing this order (FAR Case ) was published in the Federal Register on June 12, The proposed rule requires contractors to enroll in E-Verify within 30 days of contract award and check the status of all employees assigned to the contract as well as all newhires of the contractor. This requirement applies to all prime contracts over the micropurchase threshold ($3,000) as well as to all subcontracts for services or construction over $3, Currently, contractors can participate in E-Verify free of charge upon entering into a standard memorandum of understanding (MOU) with the Department of Homeland Security and the Social Security Administration (available on DHS s website). Once participating in the E-Verify system, an employer can electronically check an employee s immigration status by entering data from the employee s I-9 Form into the E-Verify system. If the employee s immigration status cannot be verified, the employer receives a tentative nonconfirmation notice (TNC) from either DHS or SSA which must be provided to the employee. This triggers an eight workingday period for the employee to contest the TNC with the issuing agency. Under the current MOU, participants are not permitted to use E-Verify to check an individuals immigration status prior to hiring or as part of pre-employment screening. Hal J. Perloff is a Shareholder in Akerman Senterfitt. A member of the firm s Construction and Government Contracts Groups, he practices from the Tysons Corner, Virginia, office. Please contact him at hal.perloff@ akerman.com for more information on this issue.

3 Electronic Discovery in Construction Litigation By Pavan Khoobchandani, Esq. Recent electronicdiscovery related amendments to the Federal Rules of Civil Procedure and rulings in cases like Qualcomm v. Broadcom and the Zubulake line of cases have revolutionized the discovery process in federal and some state courts. These electronic discovery requirements are of particular importance in the construction industry given the high incidence of litigation and sheer volume of documents created and maintained on a typical construction project. Construction companies should examine their IT systems and electronic document policies before litigation is commenced and should implement comprehensive electronic discovery plans and procedures so as to be prepared in the event litigation arises. In federal court litigation, as well as in litigation in some states, companies have a responsibility to be intimately aware of their computer systems and document retention policies. In addition, litigation counsel has a duty to understand a company s IT system, procedures, and the methodology used to retrieve electronic documents during the discovery process. In-house counsel similarly must be knowledgeable about the electronic discovery process and provide much-needed support during the discovery phase of litigation. Ignorance of a company s IT infrastructure, failure to make reasonable inquiry into the existence of electronic data, and mistakes in the search, retention, or production of electronic documents are not valid excuses and can lead to severe sanctions. The costs, therefore, of not being on top of electronic discovery requirements can be high. Sanctions can range from monetary fines, adverse inferences being drawn in favor of the opposing party in the course of litigation, and even the entry of a default judgment. These costs can be mitigated by careful planning and the implementation of proper policies and procedures. Electronic Discovery Requirements In late 2006, new electronic-discovery related Federal Rules of Civil Procedure went into effect. These Rules provide the groundwork for the production of so-called Electronically Stored Information. In a nutshell, the Rules encourage parties to identify issues that may arise with respect to electronic documents, and provide the mechanism for the exchange of electronic documents. Prior to the release of the new Rules, the Zubulake cases addressed a variety of issues and standards relating to electronic discovery, including cost shifting and document retention policies. A number of other decisions in federal and state courts have further developed a litigant s electronic discovery obligations. Perhaps no case has been more eyeopening than Qualcomm v. Broadcom, 2008 WL (S.D. Cal. Jan 7, 2008), where a court assessed over $8.5 million in sanctions after discovering that Qualcomm and its attorneys withheld s that were properly discoverable. While the ruling in Qualcomm noted that both in-house and outside counsel, who were both subject to a separate sanctions motion, were at fault, the Qualcomm court has made it clear that outside counsel has an independent duty to educate itself about a client s electronic information. Consequently, outside counsel must work 3 closely with in-house counsel and its client s IT department to properly search for, retrieve, and produce all responsive electronic information. Furthermore, companies have a duty to properly structure and account for electronic documents so as to have a definitive understanding of the scope and whereabouts of pertinent electronic data. Project Documentation Construction companies are at a crossroads when it comes to electronic data. Some companies store all of a project s documents, including correspondence, submittals, change orders, notes, and drawings electronically, while others limit the use of computers and rely on traditional methods of paper project documentation. Regardless, virtually every construction company has some amount of electronic information that must be analyzed and produced in response to a discovery request. The goal should be to do so in full compliance with the Rules and court requirements, recognizing that electronic document productions are often expensive and time consuming. The types of electronic documents generated and maintained on a construction project are varied and may consist of s, electronic schedule files, estimating or cost software and documents, submittals, change orders, drawings, project correspondence, and other project-related documentation all of which may or may not be integrated into an electronic document control system. Increasingly, additional types of electronic documents are being maintained on project sites such as digital voic s, instant messages, and PDA-generated documents. Furthermore, project personnel may have digital cameras, jump or flash drives, laptops, and electronic notebooks which contain discover- Continued on page 6

4 Court of Federal Claims Grants Labor Inefficiency Claim for Cumulative Impact of Changes By Daniel Donohue, Esq. The Court of Federal Claims recently sustained a claim for the cumulative impact of changes, including costs of delay and inefficiency, and awarded nearly all the damages claimed by the contractor. Bell BCI Co. v. United States, No C, Judge Wheeler (April 21, 2008). The Court awarded $6.2 million plus interest under the Contract Disputes Act from April 5, 2002, when the claim was submitted. According to the facts found by the Court, this case is a horror story to an extent that is difficult to believe. It tells us a lot about the ways projects can go wrong the way untimely major changes can destroy productivity; how the relationships between the contracting agency and the user agency can affect project delivery; and how the Owner management, or lack thereof, can lead to huge additional costs for a contractor. It also is another example of recent judicial criticism of a government agency asserting a meritless claim, in this case for liquidated damages, as a bad-faith tactic to gain leverage in negotiation of a contractor s claim. The Project and the Troubles The story begins ten years ago, in March 1998, when Bell BCI was awarded a $63 million contract by the National Institutes of Health (NIH) to build a new laboratory building at the NIH campus in Bethesda, Maryland. The award left NIH with a $15 million budget surplus. So in December 1998, while construction was on-going, NIH decided to spend the surplus by adding an additional floor to the five-story building specified in the contract. While the project began with a budget surplus, NIH eventually ran out of money and refused to compensate the contractor for the effect of changes. Thus, the project disintegrated. The contractor estimated that the additional floor would add about $11 million to the contract price and would add three months to the project schedule if the change order were issued by January 31, But NIH instead added the floor in phases, increasing the cost of the changes and the impact on the project. The final design for the additional floor was issued on September 30, 1999, with floor finish fit-out issues not yet determined. This resulted in 240 unresolved Extra Work Orders issued by NIH. As of April, 2000, NIH had extended the project completion date by only 90 days to September 28, This unilateral completion date was not driven by project events, but apparently was established because the users of the building needed to move into parts of the building in September The Court found that by September 2000, NIH had lost control of the project and was unable to stop the users of the building from demanding and making changes to the building. In October 2000, the parties agreed to a bilateral Modification 093 for the direct costs of changes through September 2000, 4 with language releasing NIH from further liability for the contractor s direct and indirect costs of the changes. Mod 093 set a revised completion date in April 2001, with interim milestone dates that would allow partial occupancy of the building prior to that time. After Mod. 093 was agreed upon, NIH never extended the April 2001 completion date, even though it issued 113 modifications after Mod 093 that incorporated 216 Extra Work Orders. By November 2000, the contractor notified NIH that these changes were impacting the project and would prevent timely completion of the work unless NIH authorized and directed the contractor to accelerate the work. NIH did not authorize acceleration and, remarkably, never responded to the contractor s letter. In February 2001, while 250 Extra Work Orders remained unresolved and without adjusting the schedule, NIH withheld $100,000 from payments to the contractor for unsatisfactory progress. The Court found that the contractor s cash flow and the overall project were disrupted by NIH s practice of issuing changes, refusing to adjust the completion dates and refusing to authorize the contractor to accelerate. Despite these problems, the project was substantially completed in February 2002, a total delay of 19 months with a 30 percent cost growth for direct costs of changes, to an adjusted contract price of $85 million. In April 2002, just after completing the project, the contractor submitted a certified Request for Equitable Adjustment for the Continued on page 5

5 Court of Federal Claims Continued from page 4 impact of the changes and labor inefficiency costs, plus $500,000 in unpaid contract balance due to the NIH decision to withhold $500,000 in liquidated damages. The Contracting Officer denied the claim in July The Trial and the Court s Decision The case was tried over six days in October At trial, the contractor sought $500,000 in unpaid contract balance; $1.6 million in unresolved changes; $1.6 million for delay damages; $2 million in labor inefficiency; $300,000 profit on the delay and inefficiency claims; and subcontractor costs of $1.7 million. The Court s decision granted the changes, delay and inefficiency claims in full and granted a subcontractor claim supported by testimony, but denied unsupported subcontractor claims. The Court also rejected the Government s three major defenses. First, on the merits of the delay and inefficiency claims, the Court found that the contractor s delay and scheduling expert presented credible evidence, unrebutted by the Government s expert, that the impact of the numerous changes caused the entire project delay. The Court also found that the contractor s damages expert presented reliable estimates of the contractor s costs, including that the contractor experienced labor inefficiency of about 25 percent. Thus, the Court awarded all costs sought by the contractor for unpaid contract balance, delay, labor inefficiency, profit, and one supported subcontractor claim. Second, the Court also rejected the Government s defense of accord and satisfaction, which asserted that release language in Mod. 093, for the direct costs of changes, barred the delay and inefficiency claims. The Court said that the Government offered no testimony to show that the release language in Mod. 093 was intended or was understood to foreclose a delay and Continued on page 6 Los Angeles Mandates Green Construction By Allan N. Lowy, Esq. and Bryan Leifer Until now, LEED certification has been largely voluntary. The City of Los Angeles has now made such certification mandatory for almost all but the smallest of projects. Because California frequently sets the trend for the rest of the country, we can expect similar ordinances to appear in other jurisdictions in the not too distant future. On April 22, 2008, Los Angeles Mayor Antonio Villaraigosa signed the Private Sector Green Building Plan into law, setting the city on course to cut carbon emissions by an estimated 80,000 tons by Under the new law, the city will require all projects at or above 50,000 square feet or 50 units to comply with a nationally recognized Leadership in Energy and Environmental Design (LEED) standard (see exceptions below). The Plan was implemented as Ordinance Number , and amends Chapter I of the Los Angeles Municipal Code by adding new Sections and The Plan applies to (1) A new nonresidential building or structure of 50,000 gross square feet or more of floor area; or (2) A new mixed use or residential building of 50,000 gross square feet or more of floor area in excess of six stories; or (3) A new mixed use or residential building of six or fewer stories consisting of at least 50 dwelling units in a building, [and] which has at least 50,000 gross square feet of floor area, and in which at least 80 percent of the building s floor area is dedicated to residential uses (emphases added). The Plan includes the alteration or rehabilitation of non-residential buildings and certain mixeduse or residential buildings. The Plan makes exceptions for projects that are considered a Historic Resource, and for select projects where plans were accepted by the Department of Building and Safety for plan check prior to November 1, Residential or mixed use projects of six or fewer stories are also excluded, where plans were accepted by the Department of Building and Safety for plan check prior to May 1, The current LEED rating system is to be used for projects that fall within the provisions of the Plan. Thus, a builder would be responsible, among other things, for completing a LEED checklist, obtaining architectural or engineer certifications, and paying fees. One of the more interesting aspects of the Plan relates to those projects that voluntarily commit to LEED certification at the Silver Level or higher. Those projects receive expedited processing from the Department of City Planning. Allan N. Lowy is a Shareholder in the Los Angeles office of Akerman Senterfitt. He is a member of the firm s Real Estate Practice Group. If you have questions about this article, please contact him at allan.lowy@akerman.com. Bryan Leifer is a Summer Associate in the Los Angeles office of Akerman Senterfitt. 5

6 Court of Federal Claims Continued from page 5 inefficiency claim. The Court noted that the Contracting Officer could have testified to that effect but she failed to appear. The Court drew the negative inference that her testimony would not have supported the Government s interpretation of the release language in bilateral Mod Finally, the Court rejected the Government s claim for liquidated damages of about $500,000. As to this defense, the Court found that the NIH lacked good faith. The Court stated, There is evidence that NIH failed to satisfy its implied duty of good faith and fair dealing in the administration of this project. NIH asserted a liquidated damages claim against Bell knowing that such a claim lacked a factual basis. NIH lodged this claim only to gain negotiating leverage after Bell submitted a request for equitable adjustment. While the Court s comments about the agency s breach of the implied duty of good faith in this case are encouraging, we note that the playing field is not yet level regarding submission of unsupported claims to gain leverage. Last year Court of Federal Claims Judge Hodges found that a contractor who submitted an unsupported claim to get the Government s attention was guilty of fraud and held the contractor liable for double the unsupported amount under the Contract Disputes Act. Daewoo Engineering v. United States, now on appeal. We wonder whether the day will come when the Court would sanction the Government for behavior like that found in this Bell BCI case. Daniel Donohue is a Shareholder in the Tysons Corner office of Akerman Senterfitt. He is a member of the firm s Construction Practice Group and Government Contracts Business Team. If you have questions about this article, please contact him at daniel. donohue@akerman. com. Electronic Discovery Continued from page 4 able data. Also, gaining use on project sites is Building Information Modeling ( BIM ), which is the process of generating and managing almost all project building information in an electronic-virtual manner. Therefore, keeping track of the electronic data for a project is a complex task and should never be done ad-hoc or after litigation has commenced. A large number of electronic documents and devices may need to be collected, analyzed and searched. Doing so thoroughly and efficiently is no small feat, especially if faced with a litigation deadline. Companies should be proactive in working with their in-house and outside counsel to prepare themselves and their IT department for litigation should it arise. This will expedite the discovery process and will likely save money in the long run. More importantly, however, being prepared and having proper document retention policies, organization, and search strategies increases the likelihood that a company will not run afoul of the detailed electronic discovery requirements that have developed in recent years. Efficient Electronic Document Production Construction companies often face a challenge when it comes to electronic information that many other companies do not: a lack of a central location of all electronic data. Sometimes the electronic information for a project is stored on a dedicated project server; and other times, several smaller construction projects may be housed together on a single server. These servers may not be linked to a centralized company server, making access even more difficult. In addition, there may be standalone computers, localized laptops, and other electronic devices at the project site all of which are fair game in electronic discovery. Furthermore, projects may involve electronic communications between multiple locations, such as between a field office and a home office or the office of a designer or consultant. 6 As a result, the production of a project s electronic documents is not as simple as turning a single server over to the other side. Devices and documents must first be searched, reviewed, and culled by counsel for non-project specific, proprietary, and privileged documents. It is especially important to review electronic documents for privilege to prevent an inadvertent disclosure of attorney-client communications, since project personnel often correspond by with counsel during the course of a project. The production of a project s electronic documents can be done more efficiently if a company has a strong understanding of its IT infrastructure and can work with outside counsel to identify where responsive documents exist and how they can be retrieved. In order to assist in this endeavor, a construction company, before a particular project starts, should review how the project documents will be managed and its procedures for storing and maintaining its project files. This allows a company to assist in the education of outside counsel as to the details of its IT system, which may ultimately reduce legal fees and will increase the likelihood of a proper document production. Construction companies should examine their overall IT systems and electronic document policies early, so that the time and expense associated with a sub-standard electronic document production may be mitigated if litigation is commenced. If it appears that a project is headed to litigation or a dispute resolution setting, construction companies would be wise to contact outside counsel well versed in electronic discovery to begin the process of evaluating their electronic documents. Pavan Khoobchandani is an Associate in the Tysons Corner office of Akerman Senterfitt. He is a member of the firm s Construction and Litigation Practice Groups. If you have questions about this article, please contact him at pik@akerman. com.

7 Coal Isn t Cash (Or Anything Like Cash) By James D. Coleman, Esq. The price of coal may be at an all-time high, but a big pile of it is not acceptable bid security according to the GAO. In Tip Top Construction Corporation, B , 2008 WL (Comp. Gen. May 2, 2008), GAO denied Tip Top s bid protest, finding that its $1.8 million bid bond, backed by a $191 million dollar pile of coal, was insufficient security for a $9 million dollar road project. In its decision, the GAO clarified the FAR s somewhat complicated discussion about what assets of an individual surety are acceptable to back a bid bond. Tip Top was the apparent low bidder for the construction of a five-leg roundabout on the island of St. John, U.S. Virgin Islands. To satisfy the bid invitation s bid security requirement, Tip Top submitted a bid bond from an individual surety pledging an allocated portion of $191 million worth of mined, extracted, stockpiled and marketable coal located on the surety s property. The contracting officer rejected the bid bond, and therefore the bid, after finding the assets unacceptable under the FAR. Tip Top appealed the decision. Tip Top argued that FAR allows an individual surety to provide a bid bond backed by any readily marketable personal property. The GAO disagreed with Tip Top s reading of the FAR. The disagreement stems from the way the FAR describes a surety s acceptable pledged assets. FAR states that the assets may be securities deposited in an escrow account or a lien on real property. Tip Top argued that stating the asset may be one of those two things was not the same as stating it must be one of those two things. In addition, Tip Top pointed out the (a) states that [t]he Government will accept... readily marketable assets from individual sureties to satisfy the bond obligation. And the list of acceptable assets in (b) was not exclusive. The GAO granted that these characterizations of the FAR were true, as far as they went. The problem was, Tip Top did not go far enough and, most importantly, the company s argument ignored the essential purpose of a bid bond. GAO referenced FAR (c), which reads, Unacceptable assets include but are not limited to. And, per sub-subparagraph (4), those unacceptable assets include personal property other than that listed in paragraph (b). Unfortunately for Tip Top, neither big pile of coal nor anything like it is listed in (b). But Tip Top argued that the coal was not similar to the examples of unacceptable personal property listed in (c)(4): jewelry, furs, antiques. Tip Top noted that these kinds of assets were not readily marketable and did not have readily identifiable values. Coal, on the other hand, has both attributes. Unfortunately for Tip Top, neither big pile of coal nor anything like it is listed... GAO decided Tip Top s reading missed the point of the regulation, stating that Tip Top read out the indispensable guarantee that the government can collect on the bond. GAO concluded that the FAR requires that an asset be one that can be placed in escrow, pointing out that SF 28 (the standard form which shall be executed by an individual surety under (b)), requires a description of the escrow account containing the assets. The GAO clarified its reasoning by noting that the government wants to be able to perfect its interest in a pledged asset by filing for ownership of a marketable security, not by taking possession of a physical asset, like coal, and attempting to sell it. It seems GAO could have simply noted that FAR (b) permits a narrow class of personal property that can be pledged by an individual surety, and coal is not in that class. Instead, GAO clarified that there is a distinguishing feature of that acceptable class of personal property: It can be placed in an escrow account. This allows the government to readily claim the asset by filing a court action for ownership of an account that is cash, or can be readily converted to cash if a bidder fails to execute the contract, fulfilling the purpose of a bid bond. James D. Coleman is an Associate in the Tysons Corner, VA, office of Akerman Senterfitt. He is a member of the Construction Practice Group. If you have questions about this article, please contact him at jim.coleman@ akerman.com. 7

8 Akerman Senterfitt Construction Attorneys Ft. Lauderdale Stacy E. Bercun Bohm Shareholder David M. Hawthorne Of Counsel Jacksonville James O. Birr Associate Michael L. Duncan Shareholder Edward M. Whelan Of Counsel Los Angeles Thomas J. Casamassima Of Counsel David P. Dapper Shareholder Nowland C. Hong Shareholder Julie M. McGoldrick Associate Robert M. Shaw Associate Michael S. Simon Shareholder Michael B. Wall Associate Madison Hugh N. Anderson Shareholder Robert J. Smith Shareholder Miami Robert I. Chaskes Shareholder Merrick L. Gross Shareholder Paul A. Shelowitz Shareholder Carmen I. Tugender Associate Orlando Kimberly A. Ashby Shareholder Megan Costa Devault Associate Erik E. Hawks Shareholder Harold E. Morlan II Shareholder Robert B. Nadeau, Jr. Shareholder Tallahassee John C. Lovett Shareholder Tampa Pedro F. Bajo Shareholder Irene A. Bassel Shareholder Tysons Corner James D. Coleman Associate Daniel J. Donohue Shareholder Michael Fayad Of Counsel Michael A. Gatje Shareholder Donald G. Gavin Shareholder Jeffrey G. Gilmore Shareholder Sarah M. Graves Associate Stephen B. Hurlbut Shareholder Pavan I. Khoobchandani Associate Steven J. Koprince Associate J. Michael Littlejohn Shareholder Hal J. Perloff Shareholder Owen J. Shean Shareholder J.R. Steele Associate Brian P. Waagner Shareholder West Palm Beach Lawrence P. Rochefort Shareholder This quarterly publication of the Construction Group of Akerman Senterfitt, with offices in Florida, California, New York, Virginia, Wisconsin, and the District of Columbia, is intended to inform firm clients and friends about legal developments in the area of construction law, including recent decisions of various courts and administrative bodies. Nothing in this publication should be construed as legal advice or a legal opinion, and readers should not act upon the information contained in this publication without seeking the advice of legal counsel. Moreover, this newsletter does not create an attorney-client relationship. FT. LAUDERDALE Las Olas Centre II 350 East Las Olas Boulevard Suite 1600 Ft. Lauderdale, FL Main: Fax: JACKSONVILLE 50 North Laura Street Suite 2500 Jacksonville, FL Main: Fax: Los Angeles 725 South Figueroa Street 38th Floor Los Angeles, CA Main: Fax: MADISON 222 West Washington Avenue Suite 380 Madison, WI Main: Fax: MIAMI One Southeast Third Avenue 25th Floor Miami, FL Main: Fax: NEW YORK 335 Madison Avenue Suite 2600 New York, NY Main: Fax: ORLANDO CNL Center II at City Commons 420 South Orange Avenue Suite 1200 Orlando, FL Main: Fax: TALLAHASSEE Highpoint Center 106 East College Avenue 12th Floor Tallahassee, FL Main: Fax: TAMPA SunTrust Financial Centre 401 East Jackson Street Suite 1700 Tampa, FL Main: Fax: Tysons Corner 8100 Boone Boulevard Suite 700 Vienna, VA Main: Fax: /1767 WASHINGTON, D.C. 801 Pennsylvania Avenue N.W. Suite 600 Washington, DC Main: Fax: WEST PALM BEACH Esperante Building 222 Lakeview Avenue Suite 400 West Palm Beach, FL Main: Fax: Boone Boulevard / Suite 700 Vienna, VA You can receive this publication by in a pdf format. Just send an to contact@akerman.com with Construction Law Update in the subject line and provide your name and address. Or go to register.asp?type=pa and sign up online. ADVERTISEMENT Construction Law Update Summer 2008